P K ROSHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The present Cri. Revision Application is preferred under Section 397 R/w 401 of CrPC against the order passed by ld. Judicial Magistrate (F.C.), (Court No.3), Surat in Criminal Case No.4/2002 dated 11.07.2002. Vide order under challenge, ld. JMFC, after inquiry conducted under sec.202 CrPC, issued process against the petitioners for the offences punishable under sections 323, 504, 506(1) and 294(b) of Indian Penal Code. Respondent No.2 Rajendrasingh Madansingh Chauhan is the complainant of Criminal Case No.4/2002 (hereinafter after referred to as the complainant for convenience). The complaint against the present petitioner along with three other accused persons came to be filed by the complainant on 13.03.2002 alleging that the petitioner and other accused named in the complaint (Annex.A P.15) committed alleged offence on 03.03.2002 when the complainant was at his residence with his family during the communal riots and public disturbance that had taken place in different areas of city of Surat. It is alleged that the complainant and his two sons Himanshu and Jignesh are Advocates by profession and the petitioner at the relevant point of time was Deputy Commissioner of Police (DCP for short) in the city of Surat and the petitioner committed said offence jointly with abettors accused no.2 PI of Athwa Lines Police Station and accused No.3 PSI of Athwa Lines Police Station along with accused No.4 PSI who was serving as PSI in that very police station.That complainant was knowing all the four accused persons named in the complaint by face. It is alleged in the complaint that on 03.03.2002, during communal riots, the complainant contacted police control room at about 2.00 P.M. and requested to give police protection as their residence is adjacent to Muslim locality. It is alleged that within 10 minutes, all the four accused persons reached the house of the complainant and when wife of the complainant opened the door knowing that police has reached their house, she was assaulted by accused no.4 with lathi. When the complainant introduced himself that he is a lawyer, the present petitioner and original accused No.1 gave a slap on his right cheeck. Thereafter, on getting opportunity, the complainant closed the door. Thereafter, about 10 minutes thereafter, all the four accused came to the house of the complainant and complainant was assured that they are police personnels and have come to their rescue and, therefore, door was again opened by the complainant and at that time all the four accused had entered the house of the complainant, abused them with filthy language and complainant as well as his both the sons were given lathi blows. Thereafter, all the three were taken upto Chowk Bazar Killa Maidan and they were forced to run and then they were taken to Athwa Lines Police Station. Thereafter, the complainant as well as his two sons were taken to Navsari Bazar Police Chowky in mobile van. On all the occasions, they were requesting the accused persons that they are advocates and law-abiding citizens and even then, they were threatened, ill-treated and assaulted. The major allegations are there in paras 5, 6 & 7 in the complaint.

(2.) . On filing of a private complaint by complainant, inquiry has been conducted by the ld. Magistrate under sec.202 of CrPC and ultimately, he ordered to issue process against all the four accused persons for the aforesaid offences and that very order is under challenge on the grounds mentioned in paras 7(A) to (C) of the memo of Revision Application.

(3.) It is averred by the petitioner that the petitioner is an IPS Officer and at the relevant point of time, he was DCP of Surat City. On 03.03.2002, the complainant along with other number of accused persons had caused damage to the rickshaw and prevented a public servant and police officials from performing their duties. The complainant including other accused persons indulged into pelting of stones and, therefore, the offence was registered against them vide CR No.I.53/2002 with Athwa Lines Police Station for the offence punishable under sections 143, 142, 148, 188, 337, 435 and 332 of Indian Penal Code and section 135 of Bombay Police Act. The petitioner has also produced the copy of FIR of said CR No. I.53/2002. The complainant is shown as original accused No.27 in the said FIR and his two sons are also named as accused in the said FIR and it is the say of the prosecution qua the said FIR that all the accused persons named in the said FIR were arrested from the public place either while committing offence or while escaping after committing the offence from the spot on 03.03.2002. Detailed panchanama after arrest of the accused persons was drawn and panchanama is also tendered by the petitioner at Annex.C to the petition, and it is submitted that these documents were also brought to the notice of ld. JMFC. It is also alleged by the petitioner that at about 7.30 P.M., Investigating Officer of the said crime i.e. I.CR No.53/2002 had drawn a recovery panchanama at the instance of Jigneshbhai- son of the complainant and from his house and at the address where the complainant also resides, three glass bottles, one acid bottle and 10 stones were found in a gunny bag and prosecution very much relies on the said recovery. The police has filed chargesheet against all the accused persons named in the FIR including the complainant on 16.05.2002 and the complainant is appearing as an accused No.27 and his son as accused No.11 in the said crime. The say of the petitioner before this Court is that in view of the riots that occurred from 28.02.2002 onwards, indefinite curfew was imposed on 02.03.2002 at about 1.35 P.M. as the communal disturbance had aggravated in the area under Athwa Lines Police Station on that day. The police officials including the present petitioner, therefore, were required to maintain law and order and were to perform their duties. The order passed under section 144 of CrPC by the competent authority on 2.3.2002 imposing curfew for indefinite period, is also produced with this petition at Annex.F. It is submitted that in view of totality of facts and circumstances as aforesaid, the ld. JMFC ought not to have issued the process vide order under challenge dated 11.07.2002.