G V CHAUDHURI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioners, police personnel, have moved this court on 10.8.1993 under section 482 of the Code of Criminal Procedure, 1973 (for short "the Code") for quashing the complaint registered against them in the court of learned Judicial Magistrate, First Class, Surendranagar as Criminal Case No. 2 of 1986; and, after admission and grant of interim relief on 12.8.1993 staying proceedings of the trial court, the petition appears to have been, for the first time, listed straightaway in February, 2006 for hearing and has come to be disposed now. The original complaint alleging offences punishable under sections 302, 307. 34, 147, 148, 149, 120-B and 427 of the Indian Penal Code, 1860 (for short "the IPC") was made on 17.1.1986 for the alleged incident of killing the son of the complainant on 12.8.1985. 1.1 During the intervening period of 22 years, the original complainant and one of the main accused persons, namely, police sub-inspector Mr. M.J. Jhala, is stated to have passed away and the remaining accused persons are stated to have retired and reached ripe old age. The issue for the first time raised in the petition after seven years of the complaint is as to whether sanction under the provisions of section 197 of the Code was required before proceeding with the complaint. And, present petition for decision on that issue has remained pending for all these 13 years without being ever argued on merits and without being even listed for that purpose, even as thousands and thousands of other cases have passed through the portals of this Court. There is no, and there cannot be any. satisfactory explanation for this phenomenon. It may be of a piece with these facts that the original complainant was for the first time joined as a party before this court only when the matter was taken up for hearing in November, 2006 when he was already dead 17 years ago. Who, from amongst the players in performing such a feat, would stand up and take the responsibility? The question as to what remedial, punitive and reformative actions should be taken may arise afterwards.

(2.) According to the petitioners, the complaint against them was registered for the death of the complainant's son and learned Judicial Magistrate, First Class, had taken cognizance and issued warrants against the petitioners who were serving in police department. Therefore, the petitioners approached this court by filing Misc. Criminal Application No. 3296 of 1993 for anticipatory bail and this court granted anticipatory bail on 20.7.1993. According to the petition, deceased Gora Bhavan and other persons were pelting stones and wielding deadly weapons on 12.8.1985 during the agitation in connection with roaster system. Two FIRs No. 191 and 192 of 1985 were registered against the deceased and many other persons on the information received at 4. p.m. and 7. p.m. on 12.8.1985. It is averred that the mob was beyond control, the petitioners had warned the deceased and other accused persons and had fired in air as well as resorted to lathi charge. However, since the mob was beyond the control, the petitioners were constrained to resort to firing whereby the complainant's son had died. Thus, the petitioners had acted in discharge of their duties and the deceased had criminal antecedents, according to the averments. Pursuant to the incident of firing, a Commission was appointed and a report was submitted to the District Superintendent of Police, concluding that the mob had turned unruly and hence, in discharge of their duties, the petitioners were constrained to fire at the mob. The petitioners have relied upon the messages sent on the next day by the District Superintendent of Police to the Home Secretary.

(3.) Even more striking about the petition is the fact that the whole proceedings of the inquiry that was ordered and that took place from 17.1.1986 to 09.7.1993 in the trial court under the provisions of Section 202 of the Code finds no mention in the whole petition, even as the first prayer is to call for the record and proceedings of the said criminal case. Another striking feature is that, though the State Government was the sole respondent and proceedings of the criminal case alleging murder was stayed by practically an ex-parte order of interim relief, the State had neither filed any affidavit to confirm or rebut any of the averments, nor done anything to expedite hearing of the matter. Ultimately, during the course of hearing, this court called for the record and proceedings, permitted joining of the original complainant as respondent and requested learned advocate Mr. V.H. Patel to assist the court on behalf of the heir of the complainant and asked the State Government to make its stand clear. Pursuant to that, an affidavit of Under Secretary, Home Department (Law and Order), State of Gujarat, was filed to state, in substance, that in the private complaint filed in the court of learned Judicial Magistrate, First Class, Surcndranagar, the Home Department and the Police authorities had not come into the picture at any point of time and, therefore, there was no question of considering the matter for granting or not granting sanction; and no application, either from the complainant or any other authority or person, for grant of sanction was as yet received.