Niranjan Singh & ANR Vs. Prabhakar
Rajaram Kharote & Ors [1980] INSC 43 (10 March 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION: 1980 AIR 785 1980 SCR (3) 15 1980
SCC (2) 559
ACT:
Criminal Procedure Code 1973, Section 439(1)
(a)- Enlargement on bail-Person to be accused of an offence and in custody-When
is a person in custody.
Bail-Orders on bail application-Detailed
examination of evidence, elaborate documentation to be avoided.
Suspension-Police Officers-Serious charges
framed by a criminal court-Placing such officers under suspension- Necessity
of.
HEADNOTE:
The petitioner was the complainant in a
criminal case where the accused were two sub-inspectors and eight police
constables (respondents 1 to 10). The case of the complainant was that in
pursuance to a conspiracy his brother was way laid by a police party consisting
of these respondents. It was alleged that he was caught and removed from the
truck in which he was travelling, tied with a rope to a tree and one of the
sub-inspectors fired two shots from his revolver on the chest of the deceased
at close range which killed him instantaneously. Having perpetrated this
villainy the policemen vanished from the scene. The respondents' version was
that the victim was himself a criminal and was sought to be arrested. An
encounter ensued, both sides sustained injuries and the deceased succumbed to a
firearm shot.
The State not having taken any action, the
petitioner was constrained to file the private complaint. The Magistrate who
ordered an inquiry under section 202 Cr.P.C. took oral evidence of the
witnesses and found that there was sufficient ground to proceed against all the
respondents under sections 302, 341, 395 and 404 read with section 34 IPC.
Non-bailable warrants were issued for production of the accused and the
Magistrate who refused the bail stayed the issuance of the warrants. The
respondents moved the Sessions Court for bail which granted bail subject to
certain directions and conditions. Feeling aggrieved, the petitioner moved the
High Court but it declined to interfere in revision but imposed additional
conditions to ensure that the bail was not abused and the course of justice was
not thwarted.
In the special leave petition, the petitioner
contended that the respondents could not be released on bail as they were not
in custody and being on bail they were abusing their freedom by threatening the
petitioner.
^ HELD: 1. Custody, in the context of section
439 Cr.P.C. is physical control or at least physical presence of the accused in
court coupled with submission to the jurisdiction and orders of the court. He
can be in custody not merely when the police arrests him, produces him before a
Magistrate and gets a remand to judicial or other custody.
He can be stated to be in judicial custody
when he surrenders before the court and submits to its directions.
[19 F-G] 16
2. A responsible Government, responsive to
appearances of justice, would have placed police officers against whom serious
charges had been framed by a criminal court, under suspension unless
exceptional circumstances suggesting a contrary course exist. A gesture of
justice to courts of justice is the least that a government owes to the
governed.
[20 H-21 A]
3. Detailed examination of the evidence and
elaborate documentation of the merits should be avoided while passing orders on
bail applications. No party should have the impression that his case has been
prejudiced. To be satisfied about a prima facie case is needed but it is not
the same as an exhaustive exploration of the merits in the order itself. [18 C]
4. Grant of bail is within the jurisdiction
of the Sessions Judge but the court must not, in grave cases, gullibly dismiss
the possibility of police-accused intimidating the witnesses with cavalier
ease. Intimidation by policemen, when they are themselves accused of offences,
is not an unknown phenomenon. [18 D-E]
CRIMINAL APPELLATE JURISDICTION : Special
Leave Petition (Criminal) No. 393 of 1980.
From the Judgment and Order dated 25-9-1979
of the Bombay High Court in Crl. Appln. No. 607 of 1979.
Petitioner No. 1 in person.
P. R. Mridul, S. V. Deshpande and N. M.
Ghatate for Respondents 1 to 11.
O. P. Rana and M. N. Shroff for Respondent
No. 13.
The Order of the Court was delivered by
KRISHNA IYER, J. "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment" is a part of the Universal
Declaration of Human Rights. The content of Art. 21 of our Constitution, read
in the light of Art. 19, is similarly elevating. But romance about human rights
and rhetoric about constitutional mandates lose credibility if, in practice,
the protectors of law and minions of the State become engines of terror and
panic people into fear. We are constrained to make these observations as our
conscience is in consternation when we read the facts of the case which have
given rise to the order challenged before us in this petition for special
leave.
The petitioner, who has appeared in person is
the complainant in a criminal case where the accused are 2 Sub- Inspectors and
8 Constables attached to the City Police Station, Ahmednagar. The charges
against them, as disclosed in the private complaint, are of murder and allied
offences under ss. 302, 341, 395, 404 read with ss. 34 and 120B of the Penal
Code. The blood-curdling plot disclosed in the complaint is 17 that pursuant to
a conspiracy the brother of the complainant was way laid by the police party on
August 27, 1978 as he was proceeding to Shirdi. He had with him some gold
ornaments and cash. He was caught and removed from the truck in which he was
travelling, tied with a rope to a neem tree nearby, thus rendering him a
motionless target to a macabre shooting. One of the Sub-Inspectors fired two
shots from his revolver on the chest of the deceased at close range and killed
him instantaneously. The policemen, having perpetrated this villainy, vanished
from the scene. No action was taken by the State against the criminals. How
could they, when the preservers of the peace and investigators of crime
themselves become planned executors of murders? The victim's brother was an
advocate and he filed a private complaint. The learned magistrate ordered an
inquiry under s. 202 Cr. P.C., took oral evidence of witnesses at some length
and held: "Thus taking an overall survey of evidence produced before me, I
am of the opinion that there are sufficient grounds to proceed against all the
accused for the offences under ss. 302, 323, 342 read with s. 34 I.P.C."
Non-bailable warrants were issued for production of the accused and the
magistrate who refused bail, stayed the issuance of the warrants although we
are unable to find any provision to enable him to do so. The police-accused
moved the sessions court for bail and, in an elaborate order the sessions court
granted bail subject to certain directions and conditions. The High Court,
which was moved by the complainant for reversal of the order enlarging the
accused on bail, declined to interfere in revision but added additional
conditions to ensure that the bail was not abused and the course of justice was
not thwarted.
It is fair to state that the case in the
complaint, verified under s. 202 Cr. P.C. to have some veracity, does not make
us leap to a conclusion of guilt or refusal of bail. On the contrary, the accused
policemen have a version that the victim was himself a criminal and was sought
to be arrested. An encounter ensued, both sides sustained injuries and the
deceased succumbed to a firearm shot even as some of the police party sustained
revolver wounds but survived.
Maybe, the defence case, if reasonably true,
may absolve them of the crime, although the story of encounters during arrest
and unwitting injuries resulting in casualties, sometimes become a mask to hide
easy liquidation of human life by heartless policemen when someone allergic to
Authority resists their vices. The police have the advantage that they prepared
the preliminary record which may 'kill' the case against them. This disquieting
syndrome of policemen committing crimes of killing and making up perfect
paperwork cases of innocent discharge of duty 18 should not be ruled out when
courts examine rival versions.
Indeed, we must emphasise that the trial
judge shall not be influenced by what we have said and shall confine himself to
the evidence in the case when adjudging the guilt of the accused. We were
constrained to make the observations above because the Sessions Judge, quite
unwarrantedly, discussed at prolix length the probabilities of police party's
exculpatory case and held:
"So it is reasonable to hold that there
was a scuffle and resistance offered by the victim Amarjeet Singh before shots
were fired at his person by the accused No. 1." Detailed examination of
the evidence and elaborate documentation of the merits should be avoided while
passing orders on bail applications. No party should have the impression that
his case has been prejudiced. To be satisfied about a prima facie case is
needed but it is not the same as an exhaustive exploration of the merits in the
order itself.
Grant of bail is within the jurisdiction of
the Sessions Judge but the court must not, in grave cases, gullibly dismiss the
possibility of police-accused intimidating the witnesses with cavalier ease. In
our country, intimidation by policemen, when they are themselves accused of
offences, is not an unknown phenomenon and the judicial process will carry
credibility with the community only if it views impartially and with
commonsense the pros and cons, undeterred by the psychic pressure of police
presence as indicates.
Let us now get to grips with the two legal
submissions made by the petitioner. The first jurisdictional hurdle in the
grant of bail argues the petitioner is that the accused must fulfill the two
conditions specified in s. 439 Cr. P.C.
before they can seek bail justice. That
provision reads:
439. (1) A High Court or Court of Session may
direct- (a) that any person accused of an offence, and in custody be released
on bail, and if the offence is of the nature specified in sub-section (3) of
section 437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section, (b) that any condition imposed by a
Magistrate when releasing any person on bail be set aside or modified.
Here the respondents were accused of offences
but were not in custody, argues the petitioner. So no bail, since this basic
condition 19 of being in jail is not fulfilled. This submission has been
rightly rejected by the courts below. We agree that, in our view, an outlaw
cannot ask for the benefit of law and he who flees justice cannot claim
justice. But here the position is different. The accused were not absconding
but had appeared and surrendered before the Sessions Judge. Judicial
jurisdiction arises only when persons are already in custody and seek the
process of the court to be enlarged. We agree that no person accused of an
offence can move the court for bail under s. 439 Cr. P.C. unless he is in
custody.
When is a person in custody, within the
meaning of s.439 Cr. P.C. ? When he is in duress either because he is held by
the investigating agency or other police or allied authority or is under the
control of the court having been remanded by judicial order, or having offered
himself to the court's jurisdiction and submitted to its orders by physical
presence. No lexical dexterity nor precedential profusion is needed to come to
the realistic conclusion that he who is under the control of the court or is in
the physical hold of an officer with coercive power is in custody for the
purpose of s. 439. This word is of elastic semantics but its core meaning is
that the law has taken control of the person. The equivocatory quibblings and
hide-and-seek niceties sometimes heard in court that the police have taken a
man into informal custody but not arrested him, have detained him for
interrogation but not taken him into formal custody and other like
terminological dubieties are unfair evasions of the straightforwardness of the
law. We need not dilate on this shady facet here because we are satisfied that the
accused did physically submit before the Sessions Judge and the jurisdiction to
grant bail thus arose.
Custody, in the context of s. 439, (we are
not, be it noted, dealing with anticipatory bail under s.438) is physical
control or an least physical presence of the accused in court coupled with
submission to the jurisdiction and orders of the court.
He can be in custody not merely when the
police arrests him, produces him before a Magistrate and gets a remand to
judicial or other custody. He can, be stated to be in judicial custody when he
surrenders before the court and submits to its directions. In the present case,
the police officers applied for bail before a Magistrate who refused bail and
still the accused, without surrendering before the Magistrate, obtained an
order for stay to move the Sessions Court. This direction of the Magistrate was
wholly irregular and maybe, enabled the accused persons to circumvent the
principle of s. 439 Cr.P.C. We might have taken a serious view of such a
course, indifferent to 20 mandatory provisions by the subordinate magistracy
but for the fact that in the present case the accused made up for it by
surrender before the Sessions Court. Thus, the Sessions Court acquired
jurisdiction to consider the bail application. It could have refused bail and
remanded the accused to custody, but, in the circumstances and for the reasons
mentioned by it, exercised its jurisdiction in favour of grant of bail. The
High Court added to the conditions subject to which bail was to be granted and
mentioned that the accused had submitted to the custody of the court. We
therefore, do not proceed to upset the order on this ground. Had the
circumstances been different we would have demolished the order for bail. We
may frankly state that had we been left to ourselves we might not have granted
bail but sitting under Art. 136 do not feel that we should interfere with a
discretion exercised by the two courts below.
We are apprehensive that the accused being
police officers should not abuse their freedom and emphasise that the Inspector
General of Police of the State of Maharashtra will take particular care to take
two steps. He should have a close watch on the functioning of the concerned
police officers lest the rule of law be brought into discredit by officers of
the law being allowed a larger liberty than other people especially because the
allegations in the present case are grave and even if a fragment of it be true,
does little credit to the police force. It must be remembered that the allegations
are that the deceased was dragged out of a truck to a secluded place later tied
to a tree and shot and killed by the police officers concerned.
We hasten to make it clear that these are
one-sided allegations and the accused have a counter-version of their own and
we do not wish to make any implications for or against either version. The
accused policemen are entitled to an unprejudiced trial without any bias
against the 'uniformed' force which has difficult tasks to perform.
We conclude this order on a note of anguish.
The complainant has been protesting against the State's bias and police
threats. We must remember that a democratic state is the custodian of people's
interests and not only police interests. Then how come this that the team of
ten policemen against whom a magistrate after due enquiry found a case to be
proceeded with and grave charges including for murder were framed continue on
duty without so much as being suspended from service until disposal of the
pending sessions trial? On whose side is the State? The rule of law is not a
one-way traffic and the authority of the State is not for the police and
against the people. A responsible Government responsive to appearances of
justice, would 21 have placed police officers against whom serious charges had
been framed by a criminal court under suspension unless exceptional
circumstances suggesting a contrary course exist. After all a gesture of
justice to courts of justice is the least that a government owes to the
governed. We are confident that this inadvertence will be made good and the
State of Maharashtra will disprove by deeds Henry Clay's famous censure :
"The arts of power and its minions are
the same in all countries and in all ages. It marks its victim denounces it;
and excites the public odium and the public hatred to conceal its own abuses
and encroachments." The observations that we have made in the concluding
portion of the order are of such moment, not merely to the State of Maharashtra
but also to the other States in the country and to the Union of India, that we
deem it necessary to direct that a copy of this judgment be sent to the Home
Ministry in the Government of India for suitable sensitized measures to
pre-empt recurrence of the error we have highlighted.
N.V.K.
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