D J VAGHELA Vs. KANTIBHAI

JUDGEMENT

(1.) In case of conflict between the notes of injury on the person of accused made by the Magistrate and the deposition given by the Medical Officer who examined the accused, should it be necessary for the learned Magistrate to transfer the case? Can it be a valid and sufficient ground for transfer of a case? The application is filed with a view to seek an answer to this question. But other questions concerning the protection of basic human rights of citizens also arise in this case. They are - Is there any warrant for assumption that complaints of ill-treatment in police custody is 'mostly' made by habitual offenders? Even if it be so, will a Magistrate be justified in adopting a callous and superficial approach when complaint of custodial violence is made before him? Has the police got any express or implied licence to inflict torture on persons in custody? Is it not that mostly the people belonging to the poor and middle class section of the society (both taken together form 95% of our population and they really constitute the nation) suffer the pangs of custodial violence? What should be the approach of courts when such complaints are made before them? Before adverting to the aforesaid questions, the facts of the case be examined.

(2.) The applicants, who are original accused of Criminal Case No.656 of 1982 of the Court of Chief Metropolitan Magistrate, Ahmedabad, are employees of Police Department. Applicant No.1 is a police Sub-Inspector, applicants Nos.2 and 3 are police Constables. They have preferred this application under S.407 of the Criminal P.C. for transfer of the case pending in the Court of Chief Metropolitan Magistrate, Ahmedabad, to the court of any other Metropolitan Magistrate or to the court of Chief Judicial Magistrate, First Class, Narol.

(3.) The facts of the case as it appears from the application are to the effect that, on May 11, 1982 at about 7.00 p.m., opponent No.1, i.e. original complainant along with his father was at his house situated in Murlidhar's Chawl, Khokhra, Ahmedabad. At that time the applicants-accused along with other police officers and constables had gone there. The accused took out currency notes from the pocket of opponent No.1. Thereupon-the father of opponent No.1 protested. At that time the applicants started to give blows with a stick to opponent No.1 complainant. On account of beating opponent No.1 sustained injuries. It further appears to have been alleged that opponent No.1 along with his father was forcibly taken to Amraiwadi Police Station and kept there till evening of May 12, 1982. On May 12, 1982 they were produced before the Chief Metropolitan Magistrate as accused in a gambling case.