INSPECTOR RAJENDER SAINI Vs. STATE

JUDGEMENT

(1.) .This criminal revision petition is directed against the order dated 8.8.2002 passed by Shri S.S.Rathi, M.M., New Delhi summoning the petitioners in case FIR No.154/2000 of police station Kapashera under Sections 302/201/34 of Indian Penal Code. This petition was heard and disposed of vide order dated 22.1.2004 on the observations that the judgment under challenge ?o suffers from no infirmity, perversity, impropriety or jurisdictional error ? . The order dated 22.1.2004 was challenged before the Supreme Court in Civil Appeal No.1050-1051/2004. The Hon'ble Supreme Court observed in its order dated 17.9.2004 that the matter required deeper consideration and, therefore, set aside the order and remanded the present criminal revision petition for fresh decision. The petition, therefore, was heard again.

(2.) The order of the learned M.M. Dated 8.8.2002 appears to have been passed suo moto. The petitioners are two police officers. The charge-sheet was put up before the Magistrate for the purpose of taking cognizance of the offence mentioned therein. The learned Magistrate found that while three accused Jaswant, Dharambir and Rajesh had been charge-sheeted no action was proposed against two petitioners, who are police officers, who according to the observations of the Magistrate made ?odeliberate attempt to sabotage and spoil the evidence and investigation ? . It was found that on receipt of DD No.14A through the PCR on 3.1.2000 about a man committing suicide near chaupal in village Pochanpur, ASI Narain Singh along with a constable was sent to the spot. Thereafter SI Manoj Kumar, petitioner No.2, and SI V.N.Sammi along with Inspector Rajender Singh, petitioner No.1, arrived at the spot. The three officers, namely, petitioner Nos.1 & 2 and ASI Narain Singh came back to the police station at 12.30 apparently after completing the inquest proceedings under Section 174 of the Code of Criminal Procedure (in short `Code'). The learned Magistrate found that according to the Punjab Police Rules and various other standing orders SHO and the investigating officer in a case of homicide had to voluntarily take various steps during the course of inquest or investigation but in the present case the three police offices had failed in their duty to take those steps. In the impugned order the duties of an investigating officer in a case of death have been enumerated in detail. These duties included drawing up a plan of the scene, examination of the body in order to find any abnormal appearance, taking of finger prints of the deceased person, photographing the body, etc. These instructions are contained in Chapter 25 of Punjab Police Rules, 1934 and Standing Order No.77. The learned Magistrate observed that according to the charge-sheet no crime team was called, no photographer was summoned, no site plan was prepared and the rope with which the deceased was found hanging had not been preserved. It was found that no report as per Punjab Police Rule 25.35 giving specifications about the height and sufficiency of the support, the nature of the rope and the weight of the deceased had been sent. The SDM of the area was not asked to visit the spot. Further, it was found that the provisions of Section 174(1) of the Code had been violated by the failure to send the inquest report to the SDM. It was further observed that the SHO and the Investigating Officer after recording the statement of the accused Dharambir and Yashpal jumped to the conclusion that it was a case of suicide. He also expressed doubt that some statement of the complainant, Poonam, had been manufactured by the petitioners after obtaining her signatures on blank papers. Most importantly the doctor could not give any information as to whether the death was homicidal or suicidal in view of the absence of the last photograph of the deceased and in view of the absence of the ligature material and its knot. What impressed the Magistrate further was that the complainant, Poonam, sister of the deceased, had to file a writ petition when she failed to obtain any justice from the police and after the writ petition was filed the police suo moto registered the FIR on the basis of the complaint of Smt.Poonam, which they had withheld for six months. The Magistrate thus found that the petitioners had committed an offence punishable under Section 201 IPC in so far as they knew or had reason to believe that an offence of murder had been committed and yet they become instrumental in causing disappearance of clinching evidence. Accordingly the three officials, namely, the two petitioners and ASI Narain Singh were summoned under Section 201 IPC.

(3.) This order is challenged on three main grounds: (1) that the cognizance of the offence was barred by limitation provided by Section 140 of the DELHI POLICE ACT, 1978, (2) that the two petitioners are police officers and the offence relates to acts and omissions done in discharge of their official duty and, therefore, without a valid permission under Section 197 of the Code cognizance against them could not have been taken, and (3) the Magistrate did not have the power to summon another person not named in charge-sheet when the charge-sheet was presented for the purpose of cognizance of a Sessions' triable offence. It is submitted that all that the Magistrate could have done was to commit the case to Sessions without further application of mind.