BISMILLAHKHAN S PATHAN Vs. DHANIBEN SUKLAL KHARVA

JUDGEMENT

(1.) This application arises from taking of cognizance of the offences under Sections 302 and 307 of the Indian Penal Code and dismissal of the Criminal Revision Application No.92 of 1986 of the petitioner as a result of which the order to take cognizance of the offences and the order to issue non-bailable warrant for arrest of the petitioner, a Police Sub Inspector, is confirmed.

(2.) On 6.4.1985, a complaint of one Smt. Dhaniben S. Kharva is filed against the present petitioner and unnamed policemen. According to the complaint, on 24.3.1985, while the husband and the elder son of the complainant were out of station, in wee hours of the night at around 1.30, the doors of her house were heavily knocked and shouts and words of abuse were heard. Her daughter, aged 14, opened the door and asked the younger son to remain in the bed. The complainant followed the daughter and saw that a tall fair-skinned person in police dress was standing out along with other people. He was told by the daughter that her father and brother were not at home and asked as to who could have caused trouble. This was in reply to the earlier shouts to the effect that they were hiding in the house after rioting. As the police officer was shouting words of abuse, he was requested by the daughter not to do so and there was some oral altercations between the two. Eventually, the daughter was injured and the complainant as well as other people who were gathered around started crying to save the girl. But the officer's ire grew and he ordered his fellow policemen, who were rushing towards the crowd, to fire bullets and to kill the complainant mother and the daughter. Thus, three rounds were fired out of which two bullets injured the daughter and one injured the complainant. Both the victims fell on the ground even as the crowd dispersed and the police left the scene. After about two hours of the incident, the victims were carried to the hospital in a police van and an operation was performed upon the daughter at around 3.30 in the early morning but she died at 5.55. Till then, she was conscious. An operation was also performed on the complainant and a bullet was extracted from her body. No one came to take their statements. A few acquaintances of the victims were present at the scene of the firing and one of the witnesses told the complainant afterwards that the fair skinned tall police officer who ordered firing was Police Sub Inspector Pathan. It is categorically stated in the complaint that both the accused can be identified if they are shown to her. Upon filing the complaint on these facts, after being released from the hospital, the complainant has been examined on oath and an order under Section 202 (1) of the Cr.P.C. was made to examine the witnesses on oath. Thereafter, an order to take cognizance of the offences and issue a bailable warrant against the accused was made and the same was challenged before the learned Sessions Judge in Criminal Revision Application No.118 of 1985. The said Revision Application was allowed and the case was remanded. Accordingly, more witnesses were examined and after considering the facts on record and the legal position on the subject, by the order dated 7.8.1986, a warrant to arrest the petitioner for the offences punishable under Sections 302 and 307 was issued in Criminal Case No.5815 of 1985.

(3.) The aforesaid order taking cognizance of the offence and ordering issuance of non-bailable warrant of arrest was challenged by the petitioner in Criminal Revision Application No.92 of 1986. It was contended before the learned Additional Sessions Judge that, according to the order in the earlier revision application, the trial Magistrate was directed to hear the accused also and without that being done, the cognizance was taken. It was also contended that the trial Court had disregarded the provisions of Section 210 as also Section 197 (3) of the Cr.P.C. After considering the contentions of the petitioner, the learned Additional Sessions Judge came to the conclusions that the accused had no right to be heard and had absolutely no locus standi at the stage when processes were to be issued against the accused on a private complaint. The trial Magistrate was required to follow the settled legal position of law on this point. Referring to the other case arising out of the F.I.R. in Crime Register No.76 of 1985 regarding rioting and offences under Sections 147, 148, 149, 336, 436, 511 and 427 of the IPC and Section 135 of the Bombay Police Act, it was found that the major facts of that case were different and the provisions of Section 210 (1) or Section 210 (3) could not be applied. As regards the sanction required under Section 197 of the Cr.P.C., it was found that the facts alleged in the complaint did not reveal that the alleged acts of the accused were within the scope of discharge of their duty. Similarly, the provisions of Sections 127 and 128 of the Cr.P.C were held to be not attracted in the facts of the case. Thus, the revision application was dismissed with costs and the order passed by the learned Chief Judicial Magistrate taking cognizance of the offences and issuing warrant for arrest was confirmed by the order dated 9.9.1992.