Hari Ram and Another vs Havildar Kulwant and Others

R. S. Thakur, J

This Criminal Misc. Petition (Main) is directed against the order of the learned Chief Judicial Magistrate, Lahaul and Spiti vested with the powers of the Additional Chief Judicial Magistrate, Kullu, dated August 19, 1982, and also an order passed on the application of the Petitioners u/s 319 of the Code of Criminal Proceduredated July 16, 1982. The facts giving rise to these proceedings are as under.

The Petitioners who are husband and wife, filed a criminal complaint in the Court below under Sections 307, 325, 397, 342, 506 and 376 I.P.C. against five police officials at that time posted at the Police Station, Manali, and two Medical Officers, namely, Dr. Prem, Chief Medical Officer, Civil Hospital, Kullu and Dr. Roshan Lal, Medical Officer, in the said Hospital. During the pendency of these proceedings, in this Court, since the allegations against the two Medical Officers at serial Nos. 6 and 7 were withdrawn by the Petitioners their names were deleted from the array of the accused vide order dated May 5, 1983. The petition, therefore, shall be deemed to be against the remaining Respondents, renumbered 1 to 8 in the title and they will hereinafter be referred to as the accused.

The facts alleged against the accused persons were that the two Petitioners being the husband and wife were running a vegetable shop in Manali town in July 1981. On July 25, 1981, at 10 or 11 p.m. the Petitioners closed their shop and while on their way home, they stopped to witness some quarrel going on like some other spectators over there and meanwhile, one constable of the C.S.R., whose name they did not know, came over there and gave a danda blow on the head of the Petitioner Hari Ram, as a result of which he sustained a bleeding injury. Both the Petitioners then protested to this illegal behaviour on the part of the constable but the constable ran away towards the police station. The two Petitioners then, accompanied by certain other persons of the town, went to the police station, Manali, to lodge a report against the police constable who had inflicted injury on the head of Hari Ram.

The accused who were at that time in the police station, however, bodily pulled the two Petitioners inside the police station while they kept out the other persons accompanying them and in fact they drove them away. When the two peti tioners were inside the police station, the accused confined the Petitioner Smt. Rami in the police lock up, whereas, thereafter, they started beating the Petitioner Hari Ram mercilessly after snatching away a sum of Rs. 1100/- from the pocket of said Hari Ram which were the sale proceeds of the day from their vegetable shop. The beating administered to said Hari Ram was so merciless and intensive that he fell down unconscious on the ground and some of the injuries on his body started bleeding staining the floor underneath him. After said Hari Ram fell unconscious, the accused then started giving beating to said Smt. Rami after she was brought out of the police lock up. The accused snatched away her ear-tops of gold which she was putting on at that time and thereafter subjected her to forcible sexual intercourse under threat of death.

The two Petitioners were then kept confined in the police station by the accused during the night and next morning some of the accused took them to the civil hospital Manali but as no doctor was available there, they took them to a nearby civil dispensary in village Jagatsukh. The Medical Officer in the civil dispensary at Jagatsukh, however, directed the accused, accompanying the Petitioners, to take them to referral hospital at Kullu as they had serious injuries on their bodies.

The Petitioners were accordingly taken to the referral hospital, Kullu, where they were both medically examined and it was found that the Petitioner Hari Ram had as many as 37 injuries on different parts of his body while Smt. Rami had seven injuries out of which one was a fracture injury on her thumb. The Petitioner Hari Ram was then admitted in the said hospital as an indoor patient and was discharged on August 4, 1981, under the pressure of the accused although he had not yet fully recovered.

Meanwhile, the Petitioners also tried to obtain copies of the medical certificates in respect of the injuries found on their bodies but the Medical Officer again under the pressure of the accused, refused to give them the copies of the documents and they ultimately got them after obtaining the orders of the Magistrate in this behalf.

They instituted the present complaint on August 6, 1981. On the filing of the complaint, the statements of the two Petitioners were recorded by the lower Court wherein both of them supported the allegations made in the complaint. One clerk from the office of the hospital at Kullu was also examined to prove the issuance of Medical Certificates to the Petitioners in respect of the injuries on their bodies and also the discharge-slip and O.P.D. slip in favour of Hari Ram and Smt. Rami respectively. On the basis of this evidence, the Chief Judicial Magistrate vide order dated August 10, 1981, found that a prima facie case against the accused under Sections 325, 506 and 342 of the I.P.C. was made out and he then ordered the issuance of summonses to the accused.

The lower Court then proceeded to try the case as a warrant case and after the evidence adduced by the Petitioners was closed, the lower Court passed the impugned order dated August 19, 1982, holding that on the basis of the evidence on record, no case against the accused was made out even under Sections 325, 506 and 342 I.P.C. and he thus discharged the accused.

Be it stated that during the pendency of the case in the lower Court, an application was made by the Petitioners u/s 319 Code of Criminal Procedure for impleading Om Prakash, Karam Singh Guleria and Mangat Ram as co-accused in the case, the same was, however, rejected by the Court concerned vide orders dated July 16, 1982 which order has also been impugned in this petition. During the course of the proceedings in this Court, however, the said three persons have been arrayed as Respondents.

The learned Counsel for the Petitioners has argued that the procedure adopted by the learned Chief Judicial Magistrate during the trial of this case was wholly illegal since as per the allegations in the complaint and the evidence adduced by the Petitioners, a clear case was made out which was exclusively triable by the Court of Session since serious offences like rape, dacoity and attempt to murder were alleged against the accused. The Chief Judicial Magistrate had no justification or jurisdiction to hold that on the basis of the evidence recorded by him only offences under Sections 325, 506 and 342 I.P.C. were made out. In face, this type of procedure adopted by the lower Court was illegal which has vitiated the entire trial.

The learned Counsel for the accused and the Respondent State on the other hand have tried to support the order of the lower Court and contended that there was nothing wrong in the procedure followed by the lower Court during the trial of the case. It was also contended that, in any case, even if the procedure was wrong, since, the Petitioners acquiesced to the same and did not challenge the proceedings at an appropriate time, they should not be now allowed to agitate the matter at this highly belated stage.

I have given my utmost care and consideration to these contentions and for reasons to be recorded presently I feel no hesitation in holding that the trial Court has acted beyond the ken of its jurisdiction while trying this case which has vitiated the entire proceedings and they are thus liable to be quashed.

It is apparent from the tenor and texture of the complaint and the preliminary evidence recorded by the trial Court on 7-8-1981, that prima facie offences against the accused under Sections 307, 397 and 376 I.P.C. were made out. In these circumstances, it was incumbent upon the lower Court to have had resort to the provisions contained in the proviso to sub-section (2) of Section 202 and Sections 204, 208 and 209 of the Code of Criminal Procedure u/s 202 of the Code of Criminal Procedure, if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the Magistrate taking cognizance on a private complaint, cannot direct an investigation to be made by a police officer or any other person for the purposes of deciding whether or not there is sufficient ground for proceeding. Instead he is required to proceed in accordance with the provisions of the proviso to sub-section (2) thereof, which reads as follows:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

Thus when the trial Court, in the instant case, examined the two Petitioners on 7-8-1981, they categorically stated on oath that they were kept in unlawful confinement in the police station by the accused and there the Petitioners Hari Ram and Smt. Rami were not only subjected to severe beatings but they were also robbed of Rs. 1100/- and the golden ear-tops. Further the Petitioner Smt. Rami was also subjected to forcible sexual intercourse by the accused in the police station. In these circumstances, the Chief Judicial Magistrate ought to have come to the conclusion that this was a case to be exclusively triable by the Court of Session as prima facie offences under Sections 307, 397, 376 and 342 of the I.P.C. were made out and he ought to have called upon the Petitioners to produce all their witnesses and examine them on oath. After, all the witnesses had been examined by him, he should have issued processes against the accused in consonance with the provisions of Section 204 of the Code of Criminal Procedure and should have supplied the documents to the accused as prescribed u/s 208 of the Code of Criminal Procedure and thereafter should have committed the accused to stand their trial in the Court of Session u/s 209 of the Code of Criminal Procedure

The learned Chief Judicial Magistrate, however, apparently followed a strange and thoroughly wrong and illegal procedure by just holding that only offences under Sections 325, 342 and 506 of the I.P.C. were made out betraying a serious lapse and remissness on his particle

It is pertinent to note that the failure to comply with the aforesaid provisions of Section 202 viz. the proviso reproduced supra to Section 202(2) is not a mere irregularity but an illegality. These provisions are mandatory in character and non-compliance thereof vitiates the entire trial. This has been so held in M. Govindaraja Pillai v. Thangavelu Pillai (deceased by L. Rs.) and Ors. 1983 CriLJ 917, in the following terms:

When once the Magistrate resorts to an inquiry u/s 202 in cases triable exclusively by a Court of Session, by application of the proviso to Section 202(2) it is imperative on the part of the Magistrate taking cognizance of the offence to call upon the complainant to produce all his witnesses and examine them on oath before arriving at a conclusion whether he should proceed either u/s 203 or u/s 204 of the Code.

It also appears from the record that even the accused have admitted that the two Petitioners were kept confined in the police lock up in the police station, Manali, by them but their ease is that while five of them were together on patrol duty in the town of Manali at about 11 p.m., they found that the two Petitioners were quarrelling with each other in front of their shop which had resulted in the collection of a large number of persons there and consequently even the traffic on the road had come to a halt on account of this obstruction and thus the two Petitioners were arrested by them on the spot for committing affray u/s 160 of the I.P.C. and the injuries on the person of the two Petitioners were sustained by them at the time of this affray.

Thus atleast some part of the story as set out by the two Petitioners has been admitted. That is, that they were kept in police lock up by the accused on the night intervening 25/ 26th of July, 1981, and the next day they were medically examined in the Civil Hospital at Kullu, where as many as 37 injuries were found on the person of Hari Ram who was then immediately admitted as an indoor patient and was discharged on Angust 4, 1981, and at the time of discharge, according to Petitioner Hari Ram, he had not yet been fully cured.

The facts and the circumstances of this case also give rise to a number of questions, such as:

(i) whether as many as six police officials namely, one Asstt. Sub-Inspector, two Head Constables and three constables could reasonably be on patrol duty together at that hour of the night at a small place like Manali and whether the entry in the police daily diary register supporting this fact is above all suspicion?

(ii) whether, even if it is admitted, though they have stoutly denied it that the Petitioners were committing affray, they being husband and wife, it is probable that they could inflict such serious and numerous injuries to each other especially on the public road when, even according to the accused net less than one hundred persons were present over there?

(iii) even if it is assumed, as is the case of the accused, that they were arrested by the accused while committing the offence of affray, admittedly, this was a bailable offence and whether the accused had called upon the Petitioners to furnish security for releasing them on bail ?

(iv) this Court has laid down in no uncertain terms in the case reported in ILR 1984 HP 916, Anita Panwar and Ors. v. State of H. P. and Anr., that the police is imperatively enjoined by law not to call a lady to the police station even if she is accused of any offence registered in that police station for the purposes of interrogation. Then special provisions have been made by law for the arrest and detention of a woman accused. Question arises whether these mandates of law were followed by the accused while keeping the Petitioner Smt. Rami in detention?

(v) if the Petitioners were so seriously injured at the time of their arrest it was the bounden duty of the accused to get them medically examined and treated immediately after the arrest not only to vouch safe the life of the Petitioners being endangered but also to escape the presumption being raised against them that these injuries were caused by the accused after the arrest of the Petitioners. Whether the accused took any steps in this behalf. If so, at what point of time ?

Since this Court is quashing the entire proceedings and ordering the Chief Judicial Magistrate concerned to commit the accused to the Court of Session in accordance with law, I do not think that it would be proper for this Court to express any opinion on the aforesaid questions as this will lie within the jurisdiction of the Court of Session while trying the case and it will be open to him to keep these questions in mind while trying the accused.

It is also apparent that on the facts and in the circumstances of this case, it was incumbent upon the Chief Judicial Magistrate to have allowed the application of the Petitioners u/s 319 of the Code of Criminal Procedure Apparently, even if the Petitioners knew the accused by appearance, it was not improbable that they should have been ignorant of their names and naturally

it took them some time to ascertain their names and thus there was nothing improper in their making the application subsequently for adding the three more persons as co-accused since the Petitioners even earlier had clearly stated that they did not; know the names of some of the accused. The order of the Chief Judicial Magistrate dated July 16, 1982 is also thus liable to be set aside and the application in this behalf is allowed.

It is also clear that this Court u/s 482 of the Code of Criminal Procedure has ample powers to interfere in the cases of this nature when it becomes necessary in the ends of justice and there could be no fitter case for the exercise of those powers.

In view of the above, I accept the Cr.M.P.(M), quash the order of the lower Court dated July 16, 1982 and August 19, 1982, and also quash the entire proceedings subsequent to August 7, 1981, and direct the Court concerned to commit the accused to the Court of Session by resorting to the provisions laid down u/s 202(2) and proviso thereto reproduced above and Sections 204, 208 and 209 of the Code of Criminal Procedure.