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Allahabad High Court finds allegations of custodial torture baseless

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The Allahabad High Court while allowing the application observed that, without any prior sanction, as required under Section 197 CrPC criminal proceedings initiated against a police officer are erroneous and illegal.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under section 482 filed by Madan Pal Singh.

In this matter, On 02.12.1999 a police party intercepted three persons in a routine patrolling duty and after exchange of firing two persons were apprehended but one person managed to run away. Said two injured accused were arrested and three FIRs were lodged being Case under Section 307 IPC and case as well as case under Section 25 Arms Act, Police Station Roza, District Shahjahanpur and accused Yaqub alias Gulam Khwaja and Arish were remanded to police custody.

They were admitted in hospital and were under treatment and on advice of Doctors one of the accused, Yaqub when on the way to Spinal Surgery Unit of KGMC, Lucknow died on 04.12.1999. Post mortem was conducted wherein five injuries were found on his body.

In these circumstances, Saroon wife of deceased, Yaqub filed an application under Section 156(3) CrPC before Chief Judicial Magistrate, Shahjahanpur against police party, who have arrested deceased after exchange of firing with allegation that it was a death due to custodial torture. Said application was dismissed vide order dated 02.02.2001, however a revision thereof was allowed vide order dated 09.02.2001 and thereafter a FIR was lodged on 23.02.2001 against the applicant and other police personnel under Sections 147, 148, 149, 302 IPC, Police Station Roza, District Shahjahanpur. After investigation a final report was submitted on 24.10.2001.

A notice was also issued by the Human Right Commission on the basis of an application filed by the wife of deceased-accused in which a report was submitted that the deceased was rightly arrested and he died due to injuries suffered during his arrest despite proper treatment.

The above referred final report dated 24.10.2001 was submitted before Trial Court, however, without calling a protest petition vide order dated 03.01.2002 the Court registered a criminal complaint case and issued notice to complainant, i.e, Saroon, wife of deceased and thereafter her statement was recorded under Section 200 CrPC as well as statements of two witnesses were also recorded under Section 202 CrPC and consequently by impugned order dated 28.09.2010 passed under Section 204 CrPC, summons were issued against applicant and other persons to face trial under Sections 147, 148, 149, 302 IPC.

V.P Srivastava, Senior Advocate assisted by Santosh Kumar Rai, counsel for applicant, vehemently urged that deceased-accused alongwith other accused were apprehended on 02.12.1999 after exchange of firing in injured condition and immediately they were produced before Magistrate who granted remand of accused by order dated 02.12.1999 that he had suffered serious injuries and was admitted in hospital and with further direction that accused be sent to custody after discharge from hospital.

He was given treatment in hospital for spinal and head injuries and Senior counsel has placed reliance on medical treatment report and that after two days on 04.12.1999 he was referred to other hospital (Spinal Care Unit at KGMC, Lucknow) however he died while going to hospital and brought dead at KGMC, Lucknow.

Therefore, without any dispute or challenge to the order of remand or otherwise any allegation of torture during remand by police personnel are not sustainable when accused was immediately, after arrest, admitted in the hospital. Police have fairly investigated the case and submitted a final report. Deceased died due to injuries suffered during his arrest and any allegations of custodial torture were false and baseless.

V.P Srivastava, Senior Advocate has also submitted that applicant is a police personnel, therefore, his actions are protected in the light of Section 197 CrPC as well as that Government Order dated 30.06.1975, said protection is extended to all police force and since there was no prior sanction, criminal proceedings are per se illegal.

Per contra, Paritosh Malviya, AGA-I appearing for State, has rendered his assistance on legal issue that there are very serious charges against applicant and other police personnel of custodial torture of an arrested person, who later on died. The Magistrate cannot remain as a mere spectator and since he has considered it to be a complaint case, there was no illegality to summon the applicant and others on consideration of statements recorded under Sections 200 and 202 CrPC.

The protection granted under Section 197 CrPC is limited to any offence alleged to have been committed while acting or purporting to act in discharge of official duty only, however, allegations are such that it cannot be said to be an act in discharge of their official duty.

The Court held that,

It is not in dispute that in the case initially an application filed under Section 156(3) CrPC was rejected but on an order passed in revision to lodge an FIR investigation was conducted but a final report was submitted. Therefore, before the Magistrate a complaint in the form of an application under Section 156(3) CrPC was already on record. Though, normally in these circumstances when a final report was submitted a notice could be issued to complainant who can file a protest petition, which can be considered as a complaint, however, as referred in case of India Carat Pvt Ltd (supra) even in absence of a protest petition a complaint already filed under Section 156(3) CrPC could be considered as a criminal case and Magistrate may proceed further to ask the complainant to record his/her statement under Section 200 CrPC and statements of witnesses under Section 202 CrPC and if there are sufficient grounds to proceed against accused persons, he can issue summons under Section 204 CrPC.

As referred in India Carat Pvt Ltd (supra) that in case of police report that no case is made out against accused, the Magistrate can ignore the conclusion drawn by police and take cognizance under Section 190(1)(b) CrPC and issue process or in the alternative he can take cognizance of original complaint and examine the complainant and his witnesses and thereafter can issue process to accused, if he is of opinion that there are sufficient ground to proceed against accused and in case the Magistrate has adopted similar procedure and original complaint filed under Section 156(3) CrPC was considered to be a complaint and after disapproving the final report proceeded to issue process after considering statements recorded under Sections 200 and 202 CrPC that there are sufficient ground to proceed under Section 204 CrPC.

The order sheet also indicates that on 03.01.2002 Magistrate passed the order that final report received, a criminal case be registered and issue notice to complainant. Thereafter on request of the complainant her statement was recorded and further statements of witnesses were also recorded and on the basis of statements summons were issued. Therefore, there was no procedural irregularity or illegality adopted by Magistrate concerned as such there was no abuse of process of law.

The Court observed that,

In order to consider the rival submissions on this issue, I have carefully perused the statements of the complainant as well as witnesses. Complainant has alleged that deceased, her husband, was illegally arrested and it was a case of custodial torture. She further states that when police personnels were taking her husband to Lucknow, he told about torture committed on him during custody. Witnesses also narrated that allegation of custodial torture on deceased that it was communicated to them by victim.

Considering the above statements though a prima facie case is made out against applicant and other police personnels, however, the facts and documents which are part of this record that deceased along with co-accused were arrested during a police raid in injured condition after exchange of firing and that he was medically examined that he suffered serious injuries, there are evidence of medical treatment also as well as as per record victim was arrested on 02.11.1999 and was immediately admitted in hospital and order for remand was passed to be executed only after his discharge from hospital but before discharge considering his condition he was referred to KGMC, Lucknow when he died during journey. The cause of death, therefore, cannot be held outrightly to be due to custodial torture, if any.

The Court said that there are documents which show that after the arrest of the victim he was admitted in hospital in injured condition and was put under treatment. The injuries were of serious nature and Magistrate while granting order of remand not only visited the hospital but interacted with the victim also. Further, after arrested of victim on 02.12.1999 he was remained admitted in hospital from 02.12.1999 to 04.12.1999 when he was referred to Spinal Care Unit, KGMC, Lucknow and on way to said hospital on 04.12.1999 he died. In these circumstances the test, whether prior sanction is necessary, is a satisfaction that the alleged act has reasonable connection with official duty or not. It cannot be held, ignoring the documents on record, that the act of the applicant, a police personnel, was unconnected with official duty.

“In these circumstances, considering the principle enumerated in Ch Bhajan Lal (supra), specifically that, “where there is an express legal bar engrafted in any of the provisions of the Code or concerned Act (under which a criminal proceeding is instituted) to the institution or continuance of proceedings…..”, and as discussed above that in facts and circumstances of the case there was a bar under Section 197 CrPC to proceed against applicant, a police personnel, when alleged offence was committed by him while acting or purporting to act in discharge of official duty, no Court shall take cognizance of such offence except with previous sanction.

As discussed above, the act alleged has at least reasonable connection with official duty of the applicant, therefore, without any prior sanction, as required under Section 197 CrPC criminal proceedings initiated against applicant are erroneous and illegal. Further, documents on record are not refuted by complainant, therefore, in view of judgment passed by the Supreme Court in Rajiv Thapar and others vs Madan Lal Kapoor (2013) 3 SCC 330, these documents can be considered to secure the ends of justice”, the Court further observed while allowing the application.

“The outcome of above discussion is that the criminal proceedings initiated against applicant in Complaint Case under Sections 147, 148, 149, 302 IPC as well as impugned orders dated 10.01.2022 passed by Sessions Judge, Shahjahanpur in Criminal Revision and summoning order dated 28.09.2010 passed by Chief Judicial Magistrate, Shahjahanpur, are hereby quashed.

However, the complainant will have liberty to seek sanction as required under Section 197 CrPC, if so advised, to initiate any criminal proceeding against the applicant in accordance with law”, the Court ordered.

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