C M IQBAL Vs. VIJAYA ALIAS GTTTHA

JUDGEMENT

(1.) this criminal pttition filtd undtr stction 482 of tht codt of criminal proctdurt, 1973 (for short 'tht codt') is dirtcttd against tht ordtr dattd 21-7-89 of tht m.m. v court, bangalort (for short 'tht magistratt') in p.c.r. 39/89 arising out of a privatt complaint lodgtd by tht first rtspondtnt-com plainant on 10-7-89 against tht pttitiontr -6th accustd and 9 othtrs rtgarding what is dtscribtd as 'tht polict murdtr' of htr hus band shtkhar in htr prtstnct within htr houst in banasawadi arta, bangalort on tht inttrvtning night of 30-6-89/1-7-89.

(2.) tht magistratt acting on that com plaint and tht affidavit dattd 17-7-89 filtd bytht first rtspondtnt (htrtinafttr rtftrrtd to as 'tht complainant') rtftrrtd tht complaint of tht complainant undtr stction 156(3) of tht codt to tht suptrinttndtnt of polict, central bureau of invtstigation, Bangalore, for invtstigation and report by 21-8-1989. All tht 10 accustd in that complaint art of the Karnataka police department. Accused Nos. 1 to 4 art sub-insptctors of police, acecused Nos. 5 and 6 art assistant commis siontrs of polict and accustd Nos. 7 to 10 are police constablts working in various police stations or police sub-divisions, within Bangalore city.

(3.) the material allegations made by thecomplainant in her complaint dated 10-7-89 are that she and her husband shekhar along with their infant baby, aged about 2 months, were residing together in a house belonging to one parashuram, munegowda road, banasawadi, Bangalore. All the three of them slept after having their dinner on the intervening night of 30-6-89/1-7-89. Some time thereafter, all the accused came in a group, knocked at the door of the house of the complainant and woke them up by making one ganesh @ kalapa known to them to call the name of her husband shekhar. Thereupon, complainant and her hus band woke up, opened the windows and peeped out. Within a few seconds, all the 10 accused of whom some of them were in mufti and some of them were in police uniform gained entry into the house by opening the front door with force although it was bolted from inside. Immediately after entering the house, they held her husband shekhar, hand cuffed his hands and made him to sit down and thereafter first accused b.b. ashok kumar fired gunshots at shekhar and killed him at the spot itself. Thereafter, petitioner was taken out of her house and wrongfully confined in banasawadi police station and then in kadugondanahalli police station for a few days. In the meanwhile, the accused invented a false story to cover up their high handed acts. On the basis of a complaint lodged by first accused b.b. ashok kumar at about 4 a.m. on 1-7-89, a false case was registered in banasawadi police station in crime No. 294/89 under sections 353 and 307 IPC against deceased shekhar describing him as shekhar @ station shekhar on the al legations that when all of them had gone to the house of the complainant at about 2-30 a.m. on 1-7-89 in order to arrest shekhar in connection with crime No. 165/89 registered against him at cubbon park police station for an offence under Section 324 IPC, shek har resisted their attempt to arrest him and sessed by him and, therefore, sub-inspector ashok kumar by way of self-defence opened fire at shekhar with his revolver resulting in gun-shot injuries to shekhar and his eventual death at the spot. It is significant to note that accused in crime No. 294/89 is described as shekhar @ station shekhar and it is not even indicated that he was dead although it is mentioned in the brief facts of the case column that shekhar died at the spot due to gun-shot injuries (vide xerox copy of fir in crime No. 294/89 found at pages 22 to 26 of the paper book made available by the learned counsel for the complainant-first respondent). After she was released by the accused from police custody, she made a complaint at banasawadi police station but it was refused. Even the commissioner of police, Bangalore city whom she ap proached with a complaint refused to take any action. It is under those circumstances that the complainant had to file a private complaint under Section 190 read with Section 200 of the code before the magistrate on 10-7-89 by alleging that by committing the above mentioned acts, the accused -police officers have committed offences punishable under sections -120b, 343, 302, 460, 506-b and 201 read with Section 34 IPC with a prayer that her complaint may kindly be referred to the cbi, Bangalore, for investigation as the accused were all police officers and some of them were holding the high position as assistant commissioners of police and, therefore, an impartial investigation cannot be expected if the case is referred to any police officer for investigation. She also supplemented her said prayer by filing her affidavit on 17-7-89 wherein she averred that under the circumstances narrated in her complaint and her affidavit there was no safety for her life and she cannot expect Justice and fair and impartial investiga tion if the complaint is referred to any member of the state police as the commissioner of police and deputy commissioner of police themselves had demanded her to withdraw the complaint.