Judgment:
R.L. Gupta, J.
(1) [ED. facts : One Jokhu Pershad's daughter who was alleged to be minor was missing and suspects were alleged to have a hand in her kidnapping etc. Tulsi Ram was alleged to be main culprit. He was taken to Police Station more than once. A lawyer applied for bail on his behalf. Report of the Sho was called for. The lawyer made another application levelling serious charges against the Police about atrocities being committed against Tulsi Ram suspect and also he was in Police custody since several days without producing him before a Magistrate. The Magistrate took serious view of the matter and started proceedings against Police officers. The latter moved High Court for quashing proceedings, pointing out besides other things that during the said period, the suspect was arrested by Kashmere Gate Police and on his confession had been convicted with fine.] After detailing above facts, Judgment is :
(2) The main thing, thereforee, that emerges in this case is that already an Fir No. 293/90 had been recorded u/S. 363 Indian Penal Code against Tulsi Ram and others. According to his own admission Tulsi Ram was interrogated in respect of the disappearance of Lakshmi even on 4.11.90. These facts would prima facie show that Tulsi Ram was aware as to in what connection Jokhu Parshad had lodged a report against him.
(3) During the course of arguments, it is not disputed on behalf of Tulsi Ram also that it is a case in which the Magistrate chose to take cognizance of various offences u/S. 190(1)(c) of the Code of Criminal Procedure because the proceedings were started by him upon information received from Sh. Thakur, Advocate. However, according to the learned counsel, the stage of taking cognizance of the offence on 14.12.90 when the impugned order was recorded, had not yet arrived because the Magistrate did not record any evidence after taking cognizance of the offence on 14.12.90. He further submitted that the contention of the learned counsel for the petitioners that the cognizance was taken by the Magistrate on 9.11.90 was not correct because on that date the Magistrate only called for a report from the Sho on the bail application. I think counsel for both the parties in this respect do not seem to be correct. The statements of three witnesses were recorded by the Magistrate on 10.11.90 and noton9.11.90. At that time the petitioner Satya Varat and in charge Pp Khajoori Khas were present. The very fact that the Magistrate chose to record evidence on 10.11.90 in the presence of two accused persons would clearly go to show that the Magistrate took cognizance of the allegations in the bail application on the footing of a complaint on 10.11.90 itself because he had called for the report of the police for that date. He, thereafter recorded the statement of other witnesses on 12.11.90 and that of Tulsi Ram on 14.11.90 andofSitaRamonl5.11.90. The procedure for taking cognizance of an offence on a complaint commences from S. 200 of the Code. S. 200 of the Code says that a Magistrate taking cognizance of an offence on complaint shall record the statements of the complainant and witnesses. If there is no sufficient evidence then the Magistrate is empowered to dismiss the complaint u/S. 203 of the Code. However, if in his opinion, there is sufficient ground for proceeding, then either a summons or a warrant, as warranted by the facts of the case, has to be issued against the accused. thereforee, the cognizance of an offence by a Magistrate starts from the date when he starts recording evidence on a complaint and not from the date when upon a consideration of the evidence recorded by him he chooses to take action against the accused. In this case the Magistrate did not believe the report of the police dated 10.11.90 that the where-abouts of Tulsi Ram were still not found by the police and he was very much wanted because he was the main accused. He ignored this report of the police and, thereforee, chose to take action against the police officials believing as correct what was stated in the bail application of Tulsi Ram presented by Mr. Thakur, Advocate and also another application filed by Mr. Thakur for taking action against guilty police officials. He passed a specific order at 2.00 Pm on 10.11.90 that Sho, Ps Gokal Puri and in charge of Pp Khajoori Khas appear before him at 3.00 Pm on that date and it was in their presence that the evidence was recorded by him. So the information on the basis of which the learned Magistrate proceeded was from a source independent of the police.
(4) In fact, it is not disputed before me on behalf of Tulsi Ram that it was a case where the Magistrate would be deemed to have taken cognizance u/S. 190(1)(c)of the Code. This section itself clearly states that the three various modes of taking cognizance by a Magistrate are regarding taking of cognizance of an offence and not an offender, because it clearly states, 'Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence ...' Thus it is abundantly clear that it is the cognizance of an offence and not the cognizance of an offender, as contended by learned counsel for Tulsi Ram, which is taken by the Magistrate under this Section. In this case it has to be specially remembered that the Magistrate recorded the evidence in the presence of at least some of the accused persons, namely, Sho, P.S. Gokal Puri i.c Sh. Satya Varat and in charge P.P. Khajoori Khas which is apparent from the order sheet dated 10 11.90. On 12.11.90 the presence of accused H.C. Shri Niwas is recorded. Again on 14 11.1990, the presence of accused H.C. Shri Niwas is recorded.
(5) Section 191 of the Code contemplates that when a Magistrate takes cognizance of an offence u/S. 190(l)(c), accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Cjm in this behalf. Learned counsel for Tulsi Ram has contended that in this case the Magistrate had not recorded any evidence, after taking cognizance of the offence on 14.12.90. According to him the Magistrate will not be deemed to have taken cognizance on 9.11.90. He had further tried to lend strength to the argument from the order of the learned Magistrate wherein in para 27 of the order, he says that he, thereforee, takes cognizance of the offences u/Ss. 363, 365 etc. against Hc Shri Niwas and others and u/Ss. 368, 330 and 331 Indian Penal Code against Si Champat Singh and u/Ss. 368 Indian Penal Code against Sho Gokal Puri, Inspector Satya Varat. It is difficult to subscribe to the argument advanced on behalf of Tulsi Ram. In fact, S. 191 of Code is emphatic to the effect that the accused had to be informed by the Magistrate to have his case inquired into or tried by another Magistrate, before any evidence is taken. It covers the case of an inquiry also into an offence which is generally a stage prior to the summoning of an accused u/S. 200 of the Code. In this case, learned Magistrate chose to adopt a procedure completely un-known to law because he recorded the statements of some of the witnesses in the presence of some of the accused who are petitioners in this court. Their statements have been recorded on oath and it is really a travesty of justice that statements of witnesses on oath were recorded by the Magistrate in the presence of some of the accused persons without even affording them any opportunity to cross- examine. thereforee, I am of the clear view that the Magistrate in this case took cognizance of the offence on 10.11.90 and not on 14.12.90 as contended by learned counsel for Tulsi Ram. If that be so, S. 191 created a complete bar for the Magistrate to proceed into the inquiry without informing the accused, two of whom were present even when the evidence was recorded, that they were entitled to have their case inquired into or tried by another Magistrate. In fact, it amounts to a flagrant violation of the provisions of S. 191 of the Code. If we go by the tenor of the order passed by the Magistrate, he also seems to have come to a clear finding that the petitioners were guilty of the offences for which the Magistrate took cognizance. For instance in para 22, he says, 'The evidence on record shows that Si Champat Singh and S H.O. Gokal Puri had clear knowledge that Sh. Tulsi Ram etc. have been abducted and the offences U/Section 363, 365 and 367 Indian Penal Code have been committed against them by their subordinates. But still, these two officers wrongfully concealed and confined Tulsi Ram etc,' Then in the same para he says, 'thus, after receiving the copy of the bail application and after talking to Sh. Tulsi Ram, the S.H.O. had become aware of the fact that Sh. Tulsi Ram has been abducted by his subordinates. The S.H.O., however, sent a false report to this court to the effect that Sh. Tulsi Ram is not in custody of the police and knowingly concealed and confined him in illegal custody. The S.H.O., P.S. Gokul Puri has thereforee, committed an offence punishable u/S. 368 Indian Penal Code . against Sh. Tulsi Ram.' Similar firm views have been expressed by the Magistrate in some other parts of the judgment also. Thus, he seems to have already made up his mind to punish the petitioners. It is a matter of common knowledge that after recording evidence, in an inquiry u/S. 200 of the Code, the Magistrates generally uses the expression of prime facie findings against the accused. Definite conclusions are not indicated at that stage. It is always possible that when the accused appear before the Magistrate, they may be able to show during cross-examination of the witnesses that they were deposing falsely. thereforee, it is also a mandatory requirement of law that at this initial stage, a Magistrate will not express any definite view. By expressing such definite view also the Magistrate has exceeded his jurisdiction.
(6) In the bail application itself, it is mentioned by Tulsi Ram that he was applying for bail for an offence u/S 363 Indian Penal Code vide Fir No. 293/90 recorded in PS. Gokal Puri. So it is clear that Tulsi Ram was aware of the registration of the case against him at Ps Gokal Puri on the date the application was made. This application does not indicate if it has been filed by the learned counsel under instructions from some person other than Tulsi Ram. Prima facie, thereforee, it should be presumed that instructions for filing this bail application were given by Tulsi Ram himself. It is also not mentioned in this application, that the learned Advocate Sh. Thakur received such instructions from Tulsi Ram after going to the police station. thereforee, in the normal course of events, it has prima facie to be presumed that instructions must have been given by Tulsi Ram while he was not in the custody of the police. It is only in the application dated 10.111.90 written in hand by learned counsel Sh. Thakur that he mentioned that on 10.11.90 one Hc Rajbir came and told him that the accused would be produced tomorrow i.e. the next day. thereforee, if we see by the nature of these two applications, prima facie, it seems to me that Tulsi Rom accused was not in police custodyon9.11.90. Otherwise it would have been mentioned in application that the same was being moved under instruction from some other person on behalf of the accused. Ramesh did say that he gave alt the information to Mr. Thakur about Tulsi Ram who then moved the bail application. But strangely, it is not mentioned in the application that it was moved under instruction from Ramesh.
(7) thereforee, even if we presume that the accused Tulsi Ram was in police custody from 10.11.90 or even from 7.11.90 as deposed by Ramesh we will have to presume that prima facie he would be deemed to be in custody in connection with Fir No. 293/90. thereforee even if for the sake of argument, it is presumed that the police committed some excesses upon the said Tulsi Ram, it will only be during his detention in police custody in connection with the investigation of the aforesaid FIR. thereforee, there appears to be a reasonable connection between the alleged atrocities committed upon Tulsi Ram and discharge of official duties by the police officials in connection with the investigation of the FIR. The alleged atrocities, thereforee, seem to have nexus with the official duties of the police. Even if we say prima face that the police officials detained accused Tulsi Ram for some days without producing him in court, this again also has a nexus with the performance of the official duties of the police in connection with the FIR. In the case of Pritam Singh vs. Delhi Adm. 1937 CR.L.J. 872 a Traffic Police officer in uniform stopped scooters for contravening Motor Vehicles Act by driving without helmet. The police after preparing the challan, detained the scooters for purpose of recovering composition money. The complainant also alleged assault by police officer. This court held that the aforesaid offences were committed during the discharge of official duties and, thereforee, sanction was necessary for prosecution u/S 197 of the Code. In the case of Matajog Dobey vs' H. C. Bhari : [1955]28ITR941(SC) while discussing the scope of sanction u/S 197 of the Code, it was held 'Offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise u/S 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage the trial proceeds on the merits. What the Court must find out is, whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duties, though possibly in excess of the needs and requirements of the situation.'
(8) Yet in another case namely, Ran Singh vs. Shanti Sarup Manan 1990. Raj LR. 190, the facts were that the complainant who himself was a Sub Inspector of Police had gone with his family and some relations to dine out. After dinner, his wife wanting a Pan, stood along with her children at the Pan shop while the Si himself was at some distance. He noticed one boy molesting his wife. He immediately rushed to the Pan shop to stop that boy and an altercation ensued during which time a police jeep arrived from which emerged Acp Shanti Sarup Manan. It was further alleged in the complaint that the Acp without making any enquiry as to what had happened, started beating the complainant, then thrust him into the jeep with the help of that boy and his companions and the complainant's son and daughter also managed to get into the jeep and then the Acp told the driver to take the jeep to the police station. The allegation was that the complainant was given beating on the way and the Acp directed Si Brij Lal Tyagi to lock up the complainant. After summarizing the law on the matter of grant of sanction, this court held that sanction for prosecution was necessary u/S 197 of the Code and thus upheld the order of Additional Sessions Judge of dropping the proceedings for want of sanction. On behalf of Tulsi Ram, my attention has been drawn to State of A. P. V.N. Venugopal : [1964]3SCR742 according to which torture by police during investigation of person suspected of crime does not amount to an act done or intended to be done in discharge of his official duty. That case is not applicable to the present case because the question of sanction u/S 197 of the Code was not in consideration before the Hon'ble Supreme Court. The only question that was considered in that case was with reference to bar of limitation u/S 53 Madras District Police Act, 1859. The limitation prescribed in S. 52 of the said Act was three months and and it was with reference to bar of limitation that certain observations were made.
(9) The name of Tulsi Ram was mentioned as one of the suspect by Jokhu Parshad in respect of the dis-appearance of his minor daughter. In fact, during investigation some neighbours like Ram Surat Dubey, Mahesh, Ram Gopal have informed the police that Tulsi Ram is directly involved in the kidnapping of Lakshmi. On behalf of the State also it is stated, that during inquiry by the officials of Cbi, to whom investigation was transferred by this Court, the statement of Lakshmi was recorded wherein she said that Tulsi Ram with the help of others kidnapped and raped her subsequently. thereforee, the police officials do appear to have been investigating the offence against Tulsi Ram and others. At the most, we can say that the police officials while discharging their official functions are accused of having committed some excesses. In these circumstances, thereforee, sanction u/S 197 of the Code, for prosecution of the police officials was mandatory. thereforee, there is no justification in continuing the proceedings against the petitioners in both these petitions commenced by the learned Magistrate. The proceedings are quashed herewith.