CIVIL APPEAL 1486 of 2003 on 20 March 2003

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.***

Raghbir Singh Bal VersusRavinder Kumar Bakshi and others.***

Before:Hon'ble Mr. Justice R.S.Madan.***

Present:-Shri A.P.S.Randhawa, Advocate, for the petitioner.

Mrs. Ravinder Kaur Nihalsinghwala, Deputy AdvocateGeneral, Punjab.

Shri Pankaj Bhardwaj, Advocate, for respondent No.3.***

R.S.Madan, J

By filing the instant revision petition under Section 482 of theCode of Criminal Procedure, the petitioner has assailed the correctnessand legality of the order dated 20.03.2003 passed by the learned SessionsJudge, Amritsar in the Revision Petition titled as Balbir Singh Inspector etc.Versus Raghbir Singh Bal, whereby the order dated 12.01.2001 passed bythe learned Chief Judicial Magistrate, Amritsar was reversed.

In brief the facts of the case are that a complaint underSections 323/308/325/355/506/331/341/342 read with Section 34 of theIndian Penal Code was filed by Shri Raghbir Singh Bal against ShriSukhdial Singh Bhullar, DIG, Border Range, Amritsar, Ravinder KumarBakshi, Deputy Superintendent of Police and Balbir Singh, Inspector, SHOPolice Station Civil Lines, Amritsar on the broad allegations that the thecomplainant was posted as second in Command, 45 Bn. C.R.P.F., atSikkim and at present was acting as Coach in NIS Patiala. His real brotherS.S.Bal was also posted as Second-in-Command, 99 Bn. R.A.F., C.R.P.F.,at Hyderabad. That the complainant was sent to act as an observer for theAll India Inter University Athletics Meet schedule to be held at Amritsarfrom 29.12.1997 onwards by the Secretary namely Shri Lalit K.Bhanot of Amateur Athletic Federation of India. It is alleged that the brother of thecomplainant, after obtaining leave had come to reside with him atBungalow No. 2090, Ranjit Avenue “C” Block Amritsar which was theirparental home. That on the night intervening 31.12.1997/1.1.1998 at about12.15 AM the complainant and his brother S.S.Bal had gone to purchasesome sweets from Novelty Sweet Shop situated at Lawrence Road,Amritsar in connection with New Year celebration in their Maruti Car,which was being driven by their relation Lakhwinder Singh son of KhazanSingh. That on the way to Novelty Sweet shop, the car in which thecomplainant and his brother were travelling, was signalled to stop by thepolice official (whose name was lateron disclosed as Inspector BalbirSingh). The complainant and his brother had disclosed the police regardingtheir identity and in the meantime, two private cars had passed by theirside and had gone towards Novelty Sweet shop. That Ravinder KumarBakshi, DSP, had also come there and the complainant and his brotherhad protested as to why their car was stopped and the other private carshad been allowed to go. That Ravinder Kumar Bakshi, DSP had statedthat the other cars were carrying family members of police officials and thatthe complainant and his brother had started arguing with the DSP statingthat discrimination had been done with them, because they were alsoofficers and that a person in civil uniform had then come and had askedBalbir Singh, Inspector, as to what was going on and that the person(whose name was lateron known as Sukhdayal Singh Bhullar, DIG) hadstarted using bad language against the complainant and his brother; thatthe complainant and his brother had told them that they were respectablecitizens and were national players; that DIG Sukhdayal Singh Bhullar, hadgot infuriated and slapped complainant and his brother Sukhwinder SinghBal and ordered the accompanying police constables to teach them alesson; that immediately then Inspector Balbir Singh and DSP Ravinder

Kumar Bakshi and other officials present there, without any fault of thecomplainant and his brother, had started giving them beatings andInspector Balbir Singh had given dang blows to them; that their hands andfeet were then tied with their turbans and they were made to sit in thepolice vehicle and were taken to Police Station Civil Lines, Amritsar; thatDSP Ravinder Kumar Bakshi and Inspector Balbir Singh had come withthem in the police station, whereas, Sukhdayal Singh Bhullar, DIG hadfollowed them; that after going to the police station, Sukhdayal SinghBhullar had abused them and when Sukhwinder Singh Bal, brother of thecomplainant had told him that they will take up the matter with the highofficial, he (Sukhdayal Singh Bhullar) had again taken a danda and hadgiven dang blows to the complainant and his brother Sukhwinder SinghBal. Inspector Balbir Singh and Ravinder Kumar Bakshi, DSP had caughthold of them from their long hair and their arms were tied with their turbansand then they were put under hand cuffs; that Sukhdayal Singh Bhullar hadwanted and directed them to sign on blank papers, to which thecomplainant and his brother had refused and Sukhdayal Singh Bhullar hadgiven dang blows to Sukhwinder Singh Bal with full force which had landedon his head and left arm and the left arm of Sukhwinder Singh Bal wasfractured and he was caught hold of from his long hair by Inspector BalbirSingh and was given kick blows . He fell down on the ground and thenSukhwinder Singh Bal was made to lie with back upward and Balbir SinghInspector and Ravinder Kumar Bakshi, DSP had given multiple dang blowson his buttocks and he had become, almost, semi un-conscious. Even thenSukhdayal Singh Bhullar had given him kick blows. It was then alleged thatlateron a man with mulla-cut beard had come to the police station (lateronhe was identified as a doctor), that when the condition of Sukhwinder SinghBal and complainant was deteriorated, they were sent to Civil hospital andwere medically examined by the doctor there. It was further averred that

the doctor, who had medically examined the complainant and his brother inCivil Hospital, Amritsar, was in-connivance with the police and he did notadmit them for treatment and he had handed over the complainant and hisbrother again to the police and the doctor, had intentionally shown lessinjuries on their person. It was then alleged that in order to escape theirmis-deeds, the police had registered a false FIR bearing No. 1/1998, underSection 332 etc. of IPC against the complainant and his brother; that thecomplainant and his brother were admitted in the hospital under orders anddirections of the court. When they were produced before the DutyMagistrate at his residence for procuring their police remand; that brotherof the complainant was still lying in the hospital,. It was said that in theearlier medical examination, full injuries on the person of the complainantand his brother were not given by the doctor and they were accordingly re-examined by a board of doctors of Forensic Department of MedicalCollege, Amritsar under the orders and directions of the Court. The wholeincident, as per the version of the complainant, was said to have been seenby Lakhwinder Singh son of Khazan Singh, resident of 99, Ambika Colony,Jalandhar. It was alleged that father of the complainant Shri Chanan Singhhad given fax message to high C.R.P.F. officials and Smt. Sukhraj Kaurwife of the complainant had sent telegrams to the President of India, NewDelhi, National Human Rights Commission, New Delhi; Center SportsMinister, New Delhi; Home Minister, Government of India, New Delhi andother authorities. It was also averred in Para No. 8 of the complaint that nosanction under Section 197 Cr.P.C. was required as per the ruling of theHon'ble Supreme Court of India because it was not the duty of the police togive injuries to the respectable citizens without any reason. It was thenmentioned in the complaint that the complainant was given Arjuna Awardand Maharaja Ranjit Singh Award being the distinguished athletes of Indiaand the accused had committed the offence detailed in the complaint.

In the preliminary evidence, the complainant besides himselfappearing in the witness box as PW-1, examined nine witnesses includingdoctors, in support of his case against the accused.

The learned trial court after hearing the learned counsel for thecomplainant and perusing the evidence and the documents brought on therecord, summoned the accused to face prosecution under Sections323/325/506 read with Section 34 of the Indian Penal Code, vide orderdated 18.03.1998.

After the appearance of the accused, an application underSection 197 Cr.P.C., was filed by Balbir Singh, Inspector, for theirdischarge as no sanction was obtained before the initiation of the criminalproceedings against them.

The learned Chief Judicial Magistrate, Amritsar, after hearingthe respective submissions of the learned counsel for the parties,dismissed the application vide order dated 12.01.2001. It was against thatorder that the revision petition was filed before the learned Sessions Judge,Amritsar, who vide his order dated March 20, 2003 accepted the revisionby holding that the order passed by the learned trial court was perverseand illegal, which has been challenged before this Court.

According to the case of the prosecution FIR in the instantcase was registered on 1.1.1998 at 3 A.M. The complaint against theaccused was filed in the Court on 13.11.1998 by Raghbir Singh Bal.According to the facts appearing in the case, the occurrence in question isnot disputed by the complainant and the case set up in the FIR. Both theparties are levelling allegations against each other for the episode. It isalleged that the complainant were in drunken condition at the relevant timeas is evident from the medical reports (Annexures R1 to R-5), attached withthe reply filed by Sukhdial Singh Bhullar, IPS (Retired).

Admittedly, the complainant and his brother, were examined

by the doctors at 3.15 AM, whereas the present occurrence had takenplace around 12.20 AM on 1.1.1998. Both of them were emitting smell ofalcohol and as per the report of the Chemical Examiner, alcohol wasdetected in the contents of exhibits No. I and II and blood alcoholconcentration was estimated as 40.25 mgs as per 100 ml. of blood.

It is not disputed that the complainant R.S.Bal and his brotherS.S.Bal were heavily drunked as they were returning after the celebrationof New Year on 31.12.1997. According to the case set up in the FIR by thepolice Shri R.S.Bal and his brother S.S.Bal tried to hit the police officials onduty. They gave them beating to the extent that the turban of ASI fell on theground. When the Deputy Superintendent of Police approached thecomplainant and his brother they even hit him. It was in thesecircumstances that the police while on duty to maintain law and order, wasunder the pressure to hit the complainant R.S.Bal and his brother S.S.Bal.

It is also the case of the prosecution-respondents herein, thatthe complainant and his brother were got examined by the police andlateron under the orders of the trial court by the board of doctors and thefollowing injuries were found on the person of the complainant:-

1. Brownish black contusion on the lower aspect ofthe left eye 6x2 cm in size extending upto lateral angle ofthe left eye. Conjunctiva of left eye was foundcongested. Corneal reflex was normal. Tenderness wasfound absent and there was no local rise of temperature.

2. Brownish black bruise on the outer aspect andfront of right upper arm 12x11.5 cms in size 15.5 cmsbelow the tip of shoulder. Local temperature was normal.Movements and tenderness were normal. Greenishdiscolouration was present around the borders of bruise.

3. Patient complained of pain in the retrosternal arealeft gulteal region and right parietal region. No externalinjury was visible.

The following injuries were found on the person of ShriS.S.Bal, brother of the complainant:-

1. POP cast was present in the left half of upperarm and forearm extending upto fingers of hand andthumb. After removing the POP cast, a diffuse swellingwas present on the lower 1/3[rd] of left forearm, 12 cmabove wrist. Movements were painful and restricted atwrist and elbow joint. Local temperature was raised.Advised X-ray.

2. Diffused swelling 6x4 cms was present at theback of left hand, 7 cms distal to wrist joint, a brownishblack coloured scab size .5x.3 cm was present in thecenter of swelling over the hand. Movements of all thefingers and thumb were restricted. Tenderness waspresent and local temperature was raised.

3. Partially healed horizontal placed laceratedwound 5.5 x .5 cm on front of left side of forehead 2 cmabove, upper border of left eye brow. Marks of oldstitches were present. Serious fluid was coming out ofit. Advised X-ray.

4. Brownish blackish abrasion 4 x 1.5 cm waspresent on the left side of fronto prietal region of head.6 cm above injury No.3. Scap present at places and itwas vertically placed.

5. Black coloured abrasion 4 x 2 cms in sizeobliquely placed present on left side of forehead 3 cmsabove injury No.3. Scap was present at places.

6. Black coloured abrasion 3 x 1cm with scalpformation was present on back of head 7 cms aboveposterior hair line horizontally placed on the rightoccipital region 5 cms away from protuberance.

7. Lacerated wound 4 x 7 cm in size horizontallyplaced and partially healed was present on left side ofhead in the parietal temporal region 12 cms abovemastoid.

8. Brownish black colour was present around lefteye patient complained of blurring of region and doubleregion. Advised eye surgeon opinion.

9. Brownish black coloured bruise 16 x 21 cms onback of right buttock in the gluitial region.

10. Brownish black colour contusion on the back andouter aspect of right thigh 16 x 4 cms and 12x1.5 cm Yshaped and 36 cms below anterior/superior iliac spine.

11. Brownish black coloured contusion 14 x 22 cmon back of left buttock 7 cms below anterior/superioriliac spine over the abdomen and scab was present atspine.

12. Brownish black abrasion 2.5 cm x 0.7 cm on outer aspect of left aliac region 7 cm aboveanterior/superior iliac spine over the abdomen and scabwas present at place.

13. Blackish black contusion was present on rightupper arm on its outer aspect 3 cm lateral to injuryNo.13. Patient complained of pain at back of bothshoulders and chest.

The learned counsel for the complainant contended that theinjuries on the person of the complainant and on the person of brother ofthe complainant show that they were given beating at the hands of theaccused mercilessly and cannot be said to be self inflicted. He furthercontended that there is no evidence on the record from the side ofprosecution that the accused-respondents received any injuries on theirperson at the hands of the complainant or his brother. Had there been anyresistance or truth in the sequence of events as alleged by the prosecutionin the police case, the police officials must have received injuries at thehands of the complainant, whereas the injuries which the complainant andhis brother had received at the hands of the accused, which have beenfully described above, speaks of the volume of thrashing suffered at thehands of the accused persons. It is also not disputed that the occurrencetook place at 12.30 AM. The complainant and his brother, was immediatelytaken to the police station and the first information report was lodgedagainst the complainant at 3 AM.

The crucial question which requires determination is whetherfor the act and conduct of the accused who are the police officials and asalleged were on duty and acted in the manner to maintain the law andorder, were within their jurisdiction to cross the border line and permissionto sue them for their mis-deed, was necessary as provided in Section 197of the Code of Criminal Procedure.

The learned counsel for the petitioners contended that even ifit is admitted for the sake of arguments that the petitioner and his brother under the influence of liquor at the relevant time, manhandled with thepolice official and caused injuries while they were on duty, the law did notpermit the accused to act in an inhuman manner and cause injuries to thecomplainant and his brother and then permit them to raise the question ofsanction to sue them.

Before taking shelter of the provisions of Section 197 Cr.P.C.It is the well settled principle of law that before the question of sanctioncan be invoked two conditions are to be satisfied-

1) the accused must be a public servant of the kindmentioned in the Section i.1. He must be a Judge orMagistrate or a public servant not removable from hisoffice save by or with the sanction of the StateGovernment or Central Government; and

2) the offence must be committed by the accusedwhile acting or purporting to act in the discharge of hisofficial duty.

Admittedly, the accused are public servants and can beremoved from their office/posts by the State Government. The questionwhether the alleged offence is committed in the discharge of official duty,cannot be decided only with reference to the place of incident. As per theaverments made in the complainant as well as the case set up by thepolice officials in the FIR, the incident had taken place on 31.12.1997 atabout 12.30 AM on the roadside, within the territorial jurisdiction of thePolice Station. It is also the case of the complainant that all the policeofficers, on receipt of message from the police station, reached at the placeof occurrence and then they took the complainant and his brother to thepolice station and gave them beatings with danda resulting in the injuries.

A bare reading of Section 197 of the Cr.P.C., postulates thatan act which is done by a public officer in his official capacity but which, atthe same time, is neither his duty nor his right as such public officer to doas in that case he would not be committing an offence at all and there would be no question of prosecuting him or obtaining sanction for suchprosecution. If Section 197 Cr.P.C. is construed too narrowly it can neverbe applied, for of course it is no part of an official's duty to commit anoffence and never can be. Thus, it can be safely observed that assault onthe complainant during the wee hours and that too on the roadside and inthe police station by a public servant, under the garb that he is on officialduty, is not a part of official duty.

In this view I am fortified from the decision of this Courtreported as Jagidsh Chander and others Versus Kirat Singh- 1984 Crl.L.J.NOC 89 (Punjab and Haryana), wherein this Court has observed as under:- “the police officials called the complainant to thePolice Station and hand-cuffed him and removedhis wrist watch and other articles from the personand also gave him beating which cannot evenremotely be said to be connected with thedischarge of official duty, in such circumstancesSection 197 Cr.P.C. would not be attracted inrespect of complaint filed by the complainantagainst the petitioners as there was no nexusbetween the official duties assigned to thepetitioners and the alleged acts purported to havebeen done by them”.

The legislative mandate enumerated in sub-section (1) ofSection 197 debarring a Court from taking cognizance of an offence exceptwith a previous sanction of the Government concerned in a case where theacts complained of are alleged to have been committed by a public servantin discharge of his official duty or purporting to be in the discharge of hisofficial duty and such public servantis not removable from his office saveby or with the sanction of the government touches the jurisdiction of theCourt itself. It is a prohibition imposed by the statute from takingcognizance, the accused after appearing before the Court on processbeing issued, by an application indicating that Section 197(1) is attractedmerely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not beany bar for the accused producing the relevant documents and materialswhich will be ipso facto admissible, for adjudication of the question as towhether in fact Section 197 of the Code has any application in the case inhand.

From the bare perusal of the injuries which have beendescribed in the preceding paragraphs itself speaks of the volume of thegravity of the offence, committed by the accused. No doubt, the police isunder a legal duty and has legitimate right to arrest a criminal and tointerrogate him during the investigation of an offence but the law does notpermit use of third-degree methods or torture of accused in custody duringinterrogation and investigation with a view to solve the crime. End cannotjustify the means. The interrogation and investigation into a crime shouldbe in true sense and purposeful to make the investigation effective. Byusing third-degree method and torturing a person, the police would beaccomplishing behind the closed doors what the demands of our legalorder forbid. None of the society in the word can permit it. In other words,transparency of action and accountability perhaps are two possiblesafeguards to check the abuse of police power. As a preventive measures,theHon'ble Supreme Court in D.K.Basu Versus State of West Bengal,(1997) 1 Supreme Court Cases 416, with regard to the arrest or detentionof the accused persons, till legal provisions are made, issued the followingguide-lines:-

1. The police personnel carrying out the arrest andhandling the interrogation of the arrestee should bearaccurate, visible and clear identification and name, tagswith their designations. The particulars of all suchpolice personnel who handle interrogation of thearrestee must be recorded in a register;handling the interrogation of the arrestee should bearaccurate, visible and clear identification and name, tagswith their designations. The particulars of all suchpolice personnel who handle interrogation of thearrestee must be recorded in a register;

2. that the police officer carrying out the arrest of thearrestee shall prepare a memo of arrest at the time ofarrest and such memo shall be attested by at least onewitness, who may either be a member of the family ofarrestee shall prepare a memo of arrest at the time ofarrest and such memo shall be attested by at least onewitness, who may either be a member of the family of

the arrestee or a respectable person of the locality fromwhere the arrest is made. It shall also be countersignedby the arrestee and shall contain the time and date ofarrest;

3. A person who has been arrested or detained and isbeing held in custody in a police station orinterrogation centre or other lock-up, shall be entitled tohave one friend or relative or other person known tohim or having interest in his welfare being informed, assoon as practicable, that he has been arrested and isbeing detained at the particular place, unless thearresting witness of the memo of arrest is himself sucha friend or a relative of the arrestee;being held in custody in a police station orinterrogation centre or other lock-up, shall be entitled tohave one friend or relative or other person known tohim or having interest in his welfare being informed, assoon as practicable, that he has been arrested and isbeing detained at the particular place, unless thearresting witness of the memo of arrest is himself sucha friend or a relative of the arrestee;

4. the time, place of arrest and venue of custody of anarrestee must be notified by the police where the nextfriend or relative of the arrestee lives outside thedistrict or town through the Legal Aid Organisation inthe District and the police station of the area concernedtelegraphically within a period of 8 to 12 hours after thearrest;arrestee must be notified by the police where the nextfriend or relative of the arrestee lives outside thedistrict or town through the Legal Aid Organisation inthe District and the police station of the area concernedtelegraphically within a period of 8 to 12 hours after thearrest;

5. the person arrested must be made aware of his right tohave someone informed of his arrest or detention assoon as he is put under arrest or is detained;have someone informed of his arrest or detention assoon as he is put under arrest or is detained;

6. an entry must be made in the diary at the place ofdetention regarding the arrest of the person which shallalso disclose the name of the next friend of the personwho has been informed of the arrest and the names andparticulars of the police officials in whose custody thearrestee is;detention regarding the arrest of the person which shallalso disclose the name of the next friend of the personwho has been informed of the arrest and the names andparticulars of the police officials in whose custody thearrestee is;

7. the arrestee should, where he so requests, be alsoexamined at the time of his arrest and major and minorinjuries, if any present on his/her body, must berecorded at that time. The “Inspection Memo” must besigned both by the arrestee and the police officereffecting the arrest and its copy provided to thearrestee;examined at the time of his arrest and major and minorinjuries, if any present on his/her body, must berecorded at that time. The “Inspection Memo” must besigned both by the arrestee and the police officereffecting the arrest and its copy provided to thearrestee;

8. the arrestee should be subjected to medicalexamination by a trained doctor every 48 hours duringhis detention in custody by a doctor on the panel ofapproved doctors appointed by Director, HealthServices of the State or Union Territory concerned.Director, Health Services should prepare such a panelfor all tehsils and districts as well;examination by a trained doctor every 48 hours duringhis detention in custody by a doctor on the panel ofapproved doctors appointed by Director, HealthServices of the State or Union Territory concerned.Director, Health Services should prepare such a panelfor all tehsils and districts as well;

9. Copies of all the documents including the memo ofarrest, referred to above, should be sent to the IllaqaMagistrate for his record;arrest, referred to above, should be sent to the IllaqaMagistrate for his record;

10. the arrestee may be permitted to meet his lawyer duringinterrogation though not throughout the interrogation;interrogation though not throughout the interrogation;

11. A police control room should be provided at all districtand State headquarters, where information regardingthe arrest and, where information regarding the arrestand the place of custody of the arrestee shall becommunicated by the officer causing the arrest, within12 hours of effecting the arrest and at the police controlroom it should be displayed on a conspicuous noticeboard. and State headquarters, where information regardingthe arrest and, where information regarding the arrestand the place of custody of the arrestee shall becommunicated by the officer causing the arrest, within12 hours of effecting the arrest and at the police controlroom it should be displayed on a conspicuous noticeboard.

The Hon'ble Supreme Court further observed in the case(supra) that failure to comply with the requirements hereinabove mentionedshall aprt from rendering the official concerned liable for departmentalaction, also render him liable to be punished for contempt of court and theproceedings for contempt of court may be instituted in the High Courthaving the territorial jurisdiction over the matter.

These requirements are in addition to the constitution andstatutory safeguards and do not detract from various other directions givenby the courts from time to time in connection with the safeguarding of therights and dignity of the arrestee.

In the case in hand, from the appraisal of evidence anddocuments placed on the record; particularly the injuries suffered by thecomplainant and his brother at the hands of the police officials, cannot byany stretch of imagination, be termed to have been caused during thedischarge of their official duties but speaks of the volume. Thus, it ismanifest that in this case all the instructions which have been issued by theApex Court, have not only been violated but shows the contemptuous andinhuman touch of the police officials.

The precious right guaranteed by Article 21 cannot be deniedeven to convicts, undertrial, detenus and other prisoners in custody, exceptaccording to the procedure established by law. It cannot be said that acitizen “sheds off” his fundamental right to life the moment a policemanarrests him. Nor can it be said that the right to life of a citizen can be put in“abeyance” on his arrest. The inhuman act or any form of torture would fall

within the inhibition of Article 21 or the Constitution of India. If the policeofficials who are the custodian to maintain the law and order in the countrybecome the law breakers, it would amount to breed contempt and wouldlead to anarchy.

As a sequel of my above discussion, keeping in view thepeculiar facts. circumstances of the case and the extent of the injurieswhich the complainant and his brother has suffered at the hands of theaccused, cannot be said to have been self suffered and the respondentscannot be allowed to take shelter of Section 197 of the Code of CriminalProcedure.

As a result the revision petition is allowed and the order dated20.03.2003 passed by the learned Sessions Judge, Amritsar is set asidewhereas the order dated 12.01.2001 passed by the learned C.J.M.Amritsar, is restored.

March 25, 2008(R.S.Madan)Malik Judge