1. After the arguments were concluded on 13.7.2012, the matter was kept for orders on 20.7.2012. However, on 18.7.2012, learned Counsel Shri I.H.Syed for the Petitioners mentioned and requested that he may be permitted to make one submission which escaped his mind. Therefore, in fairness and in the interest of justice, in presence of learned Senior Counsel Shri P.C.Kavina for the Complainant and learned Public Prosecutor Shri Prakash Jani, indulgence was granted though the matter was not on the board and the submissions have been recorded and dealt with in the order.
2. Both these Petitions have been filed by different Petitioners. The Petitioner in Special Criminal Application No. 2086 of 2012 is an I.P.S. Officer and the Petitioners in Special Criminal Application No. 2019 of 2012 are the other Petitioners who have filed these two Petitions challenging the impugned orders dated 30.6.2012 passed in Criminal Revision Application Nos. 20 of 2012 below Exhibit 32.
3. The present Petitions have been filed by the Petitioners under Articles 226 and 227 of the Constitution of India and also under Section 482 of the Code of Criminal Procedure, 1973 for the prayer that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the learned Additional Sessions Judge, Jam-Khambalia, District Jamnagar, in Criminal Revision Application No.20 of 2012, on an application below Exhibit 32 dated 30.6.2012. It is also prayed that appropriate writ, order or direction may be issued quashing and setting aside the order dated 20.12.1995 taking cognizance of the order passed by the learned Judicial Magistrate First Class, Jam-Jodhpur in FIR registered as I-CR No.102 of 1990. Pending the hearing of the petitions, an interim relief has been prayed to stay further proceedings of Sessions Case No.35 of 2001 pending before the learned Additional Sessions Judge, Jam- Khambalia, District Jamnagar, on the grounds stated in the Petitions inter alia that the impugned order passed in Criminal Revision Application No.20 of 2012 is ex facie illegal and without jurisdiction. It is also contended that the Sessions Court has ignored and overlooked the PM report and the expert opinion with regard to the death of the deceased. It is contended that the death of Shri Prabhudas Madhavji Vaishnani was not a homicidal death, and therefore, the offence under Section 302 of the Indian Penal Code for murder would not be attracted. It is also contended that the State Government, which is a competent authority, has not granted sanction to prosecute the Petitioners, and the said decision / order has become final. Reference is made to the earlier litigations also and the background of the facts giving rise to the present Petitions.
4. Heard learned Counsel Shri I.H.Syed for the Petitioners. He submitted that Section 197 of the Cr.PC refers to the administrative powers, which is to be exercised by the State. He emphasized that while granting sanction under Section 197 of Cr.PC, the State has exercised its powers and has considered, whether the act alleged is committed in discharge of official duty, which would give protection to the officer under Section 197 of Cr.PC. He emphasized that since it is an administrative decision by the State, such an order is not subject to judicial review before the Court. Learned Counsel Shri Syed submitted that in 1995 this question of sanction was considered and the State was of the opinion that the act was committed in discharge of the official duty, and therefore, now it is not open to review such a decision by the State or by the Court. He submitted that when the sanction was refused, the relevant papers were considered, and therefore, it cannot be said that the victim has not died natural death. He emphasized and submitted that the order of 1995 refusing sanction, has become final, and therefore, whether the Magistrate, in exercise of powers under Section 197 of Cr.PC, can consider that the act was not in discharge of official duty taking cognizance of the offence.
5. Learned Counsel Shri Syed has submitted that the State had filed revision, challenging the order of the Magistrate, which was pending, and thereafter the said revision, filed by the State, was sought to be withdrawn, which was subject matter of litigation. Learned Counsel Shri Syed therefore submitted that the Court may consider the scope of Section 197 of Cr.PC and the observations of the Hon'ble Apex Court while discussing the sanction under Section 197 of Cr.PC. He has referred to Section 197 of Cr.PC.
6. Learned Counsel Shri Syed submitted that, therefore, the benefit under Section 197 of Cr.PC can be conferred by the State to an officer, when the act is in discharge of the official duty. Learned Counsel Shri Syed submitted that the Magistrate has, while passing the order of taking cognizance of the offence, has usurped the power of the State and decided about the sanction, for which, he had no jurisdiction. Learned Counsel Shri Syed, at the cost of repetition has stated that it is an administrative function, and once the administrative order has been passed by the competent authority, i.e. the State, how the Court can have a judicial review of such an administrative decision. Learned Counsel Shri Syed tried to submit that the judicial review is permissible to the higher judiciary, i.e. the High Court and the Hon'ble Apex Court only, and the subordinate courts cannot have any such jurisdiction for judicial review of the administrative decision. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Naga People's Movement of Human Rights v. Union of India, 1998(2) SCC 109 and referring to the observations made in paragraph 52 he submitted that such an authority is not vested in the Court. He submitted that Section 197 of Cr.PC and Section 6 of the Special Act was pari materia and the Hon'ble Apex Court has observed:
“It has to be borne in mind that the discretionary power is not necessarily a discriminatory power and that abuse of power is of not to be easily assumed where the discretion is vested in the government and not in a minor official”
7. Learned Counsel Shri Syed has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Punjab and Another v. Mohammed Iqbal Bhatti, (2009) 17 SCC page 92 and submitted that the grant of sanction without fresh material was held to be improper. He emphasized the observations made in paragraph 6:
“The legality and / or validity of the order granting sanction would be subject to review by criminal courts. An order refusing to grant sanction may attract judicial review by superior courts.”
Therefore referring to these lines, learned Counsel Shri Syed has sought to support his submission that it is only the superior courts, which have the power of judicial review of administrative action and the court of Magistrate has no such jurisdiction. Learned Counsel Shri Syed has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Chittaranjan Das v. State of Orissa, (2011) 7 SCC 167 and submitted that the sanction, which is refused, cannot be reconsidered nor it can be subject to judicial review. Learned Counsel Shri Syed submitted that if such a judicial review by the Courts is permitted, then the provisions of Section 197 of Cr.PC would be illusory and it would go away.
8. Learned Counsel Shri Syed has also referred to the notification of the Home Department dated 30.3.1974 in support of his submissions regarding Section 197 of Cr.PC.
9. Learned Counsel Shri Syed referred to Annexure-J, which is an order passed in Special Criminal Application No. 164 of 2004 dated 13.2.2004 and submitted that the submissions were made in the Revision regarding Section 161 of the Bombay Police Act, 1951. He therefore referred to Section 161 of the Bombay Police Act and submitted that the cognizance at such belated stage could not be taken. He submitted that the word 'Institution' has been considered by the Hon'ble Apex Court in a judgment / order passed in Criminal Appeal No.257 of 2011 in case of General Officer Commanding v. CBI and Another. He submitted that in the facts of the case, cognizance has been taken after five years and there is a bar under Section 161 of the Bombay Police Act. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of K.K.Patel And Another v. State of Gujarat and Another, (2000) 6 SCC 195 and referred to the observations made in paragraphs 13 and 14.
10. Learned Public Prosecutor Shri Prakash Jani referred to the background of the facts narrating the manner in which the incident had occurred regarding the rioting case and the custodial torture resulting in the death, for which, the aforesaid FIR was registered in 1990. Therefore, learned Public Prosecutor Shri Prakash Jani submitted that the Court may also consider that somebody like Respondent No.2 – Complainant is raising cry for justice since 1990, and even in the 22nd year of the incident, the charge has not been framed. He emphasized and submitted that somehow or the other, the litigation is pursued by exploiting the system so that the matter may not proceed at all, and the Petitioners, who are alleged to have committed offence, may not have to face the trial. He referred the order of the learned Magistrate and submitted that 'C' Summary was not believed and accepted. He emphasized that the said order is dated 28.12.1995, and after so many years, the matter has not proceeded further. Learned Public Prosecutor Shri Prakash Jani submitted that this order of the learned Magistrate has not been stayed by any court, and still, for one or the other reasons, it has been stalled and the proceedings are not progressing after so many years. He submitted that some of the accused had moved the High Court, and the High Court had refused to entertain their Petition, for which learned Public Prosecutor Shri Prakash Jani referred to the order of the High Court in Special Criminal Application No.43 of 1996 produced at Annexure-H. He referred to the other papers and the litigations and submitted that the case has been committed to the Sessions Court and it has been registered as Sessions Case No.35 of 2001. Learned Public Prosecutor Shri Prakash Jani submitted that the contention has been raised with regard to the sanction by the State Government and the revision which was filed by the State Government. However, he submitted that though the revision was filed by the State, it was pending and there was no stay. He submitted that infact the revision has been sought to be withdrawn. It was also a subject matter of litigation at the instance of the accused persons. Learned Public Prosecutor Shri Prakash Jani also referred to Annexure-I, which is an order in Criminal Miscellaneous Application No.43 of 1996 and also Annexure-J, which is an order in Special Criminal Application No.164 of 2004 dated 13.2.2004. He also referred to the order of the High Court in Special Criminal Application No.3323 of 2011 dated 26.12.2011 and pointedly referred to the order below Exhibit 79 in Sessions Case No.35 of 2001, which was challenged, and the High Court had observed:
"Present Case has a chequerred history and number of proceedings have been initiated one after another since 1995 / 1996 by which there is no progress in the trial with respect to the incident which has taken place in 1990 and even after 21 years the case is at the stage of framing of charge and therefore before considering the present Special Criminal Application on merits, few facts and chronological events are required to be referred to ”
11. Learned Public Prosecutor Shri Prakash Jani referred to the details of the proceedings and the orders of the High Court Court. He emphasized that the another Bench of the High Court (Coram: D.H.Waghela,J) had observed while passing the order in Criminal Misc. Application No.1799 of 1996 filed by one accused;
“...........judicial proceedings and the provisions of the Criminal Procedure Code are prima facie, grossly abused by the petitioner and benefit thereof has also accrued to the other accused persons.”
12. Therefore, referring to the details of the litigation, learned Public Prosecutor Shri Prakash Jani strenuously submitted that the proceedings are filed by way of abuse of process and to postpone the trial. Learned Public Prosecutor Shri Prakash Jani strenuously submitted that if one looks closely at the earlier round of litigations, includes all such contentions including the contentions raised in these Petitions regarding sanction under Section 197 of Cr.PC. Therefore, the Petitioners are stopped from raising any such contentions now at this stage. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Raj Kishor Roy v. Kamleshwar Pandey and Another, (2002) 6 SCC 543.
13. Learned Public Prosecutor Shri Prakash Jani referred to the order passed by the Sessions Court in Criminal Revision Application No.20 of 2012 and submitted that it is required to be considered that if the function / act is within the purview of the official duty then and then the question regarding the sanction is necessary. It is observed that;
“It is clearly from the records in investigation papers, that the offence is clearly made out then it cannot be said as official duty and therefore, the Magistrate relied upon the decision of the Hon'ble Supreme Court and the Hon'ble High Court and has observed that action which can be said official duty that can be definitely protected but here in this case, the atrocity during the custody and abuse of power and beating, harassment, seating and standing punishment all these things can not be counted as an official duties or bona fide action on the part of the police officers, ”
14. Learned Public Prosecutor Shri Prakash Jani therefore submitted that when there are concurrent findings of the two Courts, this court may not exercise the discretionary jurisdiction under Articles 226 and 227 of the Constitution of India nor does it call for any such exercise of jurisdiction under Section 482 of Cr.PC. He again emphasized and submitted that since the matter is of 1990, it may not be now further delayed, and the matter should be allowed to proceed from the stage of framing of charge. He again submitted that these very points have been raised by the Petitioners in earlier litigation before the High Court in Special Criminal Application No. 3323 of 2011 and the order passed by the High Court (Coram: M.R.Shah,J) dated 26.12.2011 as referred to in paragraph 7. The said order was carried before the Hon'ble Apex Court by way of Special Leave Petition (Criminal) No. 355 of 2012 and it was withdrawn as per the order dated 24.2.2012. Therefore, it was submitted that the Petitioners are stopped from raising the said point again and again. Learned Public Prosecutor Shri Prakash Jani has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Matajog Dobey v. H.C.Bhari, AIR 1956 S.C. 44 (Constitutional Bench) and emphasized the observations made in paragraph 20.
15. Learned Public Prosecutor Shri Prakash Jani submitted that the well-known concept “Crime Never Dies” as observed by the Hon'ble Apex Court is required to be borne in mind. He submitted that the proceedings cannot be quashed only on the ground of delay. In support of this, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of P.Vijayan v. State of Kerala and Another, (2010) 2 SCC 398 and emphasized the observations made therein. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 and referred to the observations made in paragraphs 50 and 51. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 and submitted that as observed by the Hon'ble Apex Court, the proceedings cannot be quashed only on the ground of delay. He submitted that neither the complainant nor the investigating agency can be held responsible, and if the order of learned Magistrate has remained in force, it does not require any interference in exercise of inherent jurisdiction by this Court.
16. Learned Senior Counsel Shri P.C.Kavina appearing with learned Advocate Shri Parth Divyeshwar for Respondent No.2-Original Complainant has submitted that the present litigation is an example of the abuse of process and exploitation of the system. He referred to the papers including the orders passed by the High Court in different proceedings including the order passed in Special Criminal Application No.43 of 1996 and Criminal Misc. Application No.422 of 1996 and emphasized the observations made:
“The above record of facts clearly show that judicial proceedings and the provisions of the Criminal Procedure Code are prima facie, grossly abused by the petitioner and benefit thereof has also accrued to the other accused persons who are not joined as parties and, therefore, they are not before this Court. ...................... The main issue sought to be agitated in the present petition is that the prosecution of the original complaint requires sanction under section 197 of the Code. Thus, without disclosing the facts about the progress and proceedings during the period between the first order dated 21.12.1990 and the filing of the present petition in May 1996, the issue of requirement of sanction is sought to be agitated and the proceedings are delayed by ten more years.”
Further, it has been observed:
“The original complaint clearly alleges gross violation of human rights of a citizen. The enquiry and prosecution prima facie appears to have been scuttled by a series of ingenious proceedings. Such obvious abuse of the process of law by the guardians of law themselves cannot be taken lightly and cannot be countenanced. Necessary orders for the grant of appropriate relief is required to be made after hearing all the parties concerned.”
17. Again, learned Senior Counsel Shri P.C.Kavina referred to the order of this Bench in Special Criminal Application No. 2101 of 2011 dated 10.10.2011 and submitted that, there also, in a Petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.PC, raised and referred to the said contentions regarding sanction under Section 197 of Cr.PC and protection under Section 197 Cr.PC. He submitted that the same contentions were raised referring to Section 197 Cr.PC that no court can take cognizance of the offences alleged to have been committed referring to Section 161 of the Bombay Police Act. He submitted that even at the that time also, there was a specific stand by the learned Public Prosecutor that any further delay would result in denial of justice to the deceased brother of the complainant who has been the victim of police brutality and succumbed to death, which is evident from the record, including the medical evidence. He submitted that the earlier orders including the order of the High Court in Criminal Misc. Application No.1799 of 1996 with Special Criminal Application No. 422 of 1996 dated 23.01.2007 (Coram: D.H.Waghela,J) was referred to, which reflects about the tactics for the delay. He therefore adopted and supported the contentions raised by the learned Public Prosecutor about the delay, and the submission that the Petitioners cannot be permitted to raise the said contentions again and again, which have been considered and decided by the High Court and also in some proceedings carried before the Hon'ble Apex Court. Learned Senior Counsel Shri P.C.Kavina submitted that it is a misuse of legal process and the only aim is to subvert the cause of justice by filing the proceedings, which has been done successfully. Therefore, learned Senior Counsel Shri Kavina submitted that atleast after so many years the cry of the complainant and the victim may be heard for getting justice and the majesty of the rule of law must prevail. He emphasized that the court may not entertain these Petitions and allow the law to operate in its full majesty. He submitted that infact the supervisory jurisdiction under Article 227 of the Constitution of India must be exercised with specific directions to proceed further with the matter in a specific time schedule. Learned Senior Counsel Shri Kavina has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Nupur Talwar v. Central Bureau of Investigation, Delhi and Another, 2012 (2) SCC 188 and submitted that unless it can be said that the order is perverse, the order cannot be interfered with, and while exercising the jurisdiction under Section 397 or Section 482 of Cr.PC utmost restraint has to be exercised. He emphasized that the concurrent views may not be interfered with as observed in this judgment. He emphasized the observations;
“The superior courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice. The Court should not interfere with the concurrent order of the Magistrate which is affirmed by the High Court.”
He submitted that the time has come, if the trial has not commenced, it would be a futile exercise, as the witnesses are old and may not be available, which in turn, may cause prejudice to the rights of the complainant and the prosecution. He emphasized and submitted that by such delay, ultimately, the cry and hopes of the complainant for justice will never achieve any result.
18. Learned Senior Counsel Shri P.C.Kavina appearing with Shri Parth Divyeshwar for the Complainant has some reservation that after the matter has been kept for orders, indulgence should not have been granted. However, he submitted that there is no substance in the submissions and the contentions raised. He referred to the same judgment / order passed by the Hon'ble Apex Court in Criminal Appeal No.257 of 2011 in case of General Officer Commanding v. CBI and Another and submitted that it was in context of the special statute and therefore it is not relevant for the present case.
19. Learned Counsel Shri Syed in rejoinder referred to the papers and submitted that the State cannot be permitted to take U-Turn having once declined to grant sanction under Section 197 and when there are no change of the circumstances.
20. In view of this rival submissions, it is required to be considered whether the present Petitions can be entertained or not.
21. As it is transpired from the different orders and the records, and as stated in the Petitions itself referring to the background of an incident of rioting took at Jam-Jodhpur in the year 1990 resulted in death of the victim brother of the complainant for which FIR being I-CR No. 96 of 1990 came to be registered at Jam-Jodhpur Police Station for the alleged offences. Thereafter, the deceased died in the hospital, and on the basis of the further case papers regarding medical certificate, the treatment and the PM report, FIR being I-CR No. 102 of 1990 was registered at Jam-Jodhpur Police Station for the alleged offence including Sections 302, 323, 506(1) and 114 of IPC in respect of the death of Prabhudas Madhav Vashinani. This has been the subject matter of various litigations before the High Court as referred to hereinabove. As it transpires from the record, it is a classic case of abuse of process of law and exploiting the system or the judicial process to the scuttle judicial process.
22. The main thrust of the submissions made by learned Counsel Shri Syed in the Petitions that the exercise of powers under Section 197 of Cr.PC is an administrative function and there cannot be a judicial review by the Court and the order of the Magistrate passed in 1995 taking cognizance of offence is without jurisdiction, is required to be considered in light of the different stages and the series of litigations. The submissions regarding Section 197 of the Code of Criminal Procedure with much emphasis that, if the act was done in discharge of official duty, the protection is required to be granted, and therefore, the sanction, which was not granted and 'C' Summary was filed, which has not been accepted by the Court of Magistrate erroneously, is without jurisdiction and is misconceived. The very submissions canvassed by learned Counsel Shri Syed that there cannot be a judicial review of an administrative decision by the Court, which he subsequently modified by stating that except by the superior courts, is thoroughly misconceived. The concept of judicial review of an administrative action or the decision is well accepted, and in number of cases, under various statutes the administrative decisions are examined, whether it is a case regarding pollution nuisance or whether it is a case regarding report filed by the investigating agency. The Court of Magistrate may, on the scrutiny of the prima facie material in exercise of jurisdiction of the Cr.PC including Section 197, is empowered to pass appropriate order and may not accept 'C' Summary. It is required to be mentioned that the same order of the Magistrate has not been stayed though revision was filed by the State. There were series of litigations before the High Court raising the same contentions before the High Court with different shades and colours to stall the proceedings leading to the situation that the matter is at the stage of framing of charge though the matter is registered as Sessions Case No. 35 of 2001 after it was committed to the Court of Sessions in 1995. In other words, even after 11 years, it is at the stage of framing of charge. This situation will stare in the eye raising various questions about the functioning of the system, which can be exploited, and it has also raised an issue regarding the human right violations that inspite of catena of judicial pronouncements by the Hon'ble Apex Court referring to the torture or the brutality by the police that it has remained dormant and the judicial proceedings have been scuttled for all these years. The Hon'ble Apex Court time and again referred to the brutality or atrocity of the police and the right of the accused under Article 21 and dealt with such an issue regarding human right violations in the police custody including the judgment of the Hon'ble Apex Court in case of D.K.Basu v. State of West Belgal, (1997) 1 SCC 416. Infact even the National Human Rights Commission has issued the guidelines for protection of human rights of the accused against any kind of ill-treatment in the custody. The Hon'ble Apex Court in this judgment has considered the earlier judgments and the contentions with regard to the sovereign immunity with reference to Section 161 of the Bombay Police Act.
23. Therefore, the very first limb of the argument that there cannot be a judicial review of administrative decision by the Courts, is misconceived, and it has been raised only as an abuse of process of law. Learned Counsel Shri Syed himself has subsequently modified that it can be by superior courts only and not by the subordinate courts with much emphasis on the observations made by the Hon'ble Apex Court in case of State of Punjab and Another v. Mohammed Iqbal Bhatti (supra), which is quoted while referring to the submissions made by the learned Counsel Shri Syed. However, on the contrary, the observations in paragraph 6 of this judgment pointedly referred to the legality and / or validity of the order granting sanction would be subject to review by the criminal courts (emphasis supplied). Meaning thereby it has not confined to the superior courts only. The latter part referring to the 'superior courts' would have reference to the hierarchy of the courts. On the contrary it has been observed in this very judgment in paragraph 6 itself:
“For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the authority concerned is imperative.”
24. It is required to be mentioned that these very submissions or the contentions have been raised in both the proceedings before the High Court - namely Special Criminal Application No.2101 of 2011, where it was with reference to Section 197 of Cr.PC read with Section 161 of Bombay Police Act. It was sought to be contended that when the Government was of the opinion that the alleged act was committed in discharge of official duties, the Government cannot be permitted to take different stand. It was also contended as recorded in the order passed in the aforesaid Special Criminal Application No.2101 of 2011 by this Bench that the cognizance was wrongly taken by learned JMFC which was the challenge in the revision, against which, the aforesaid Special Criminal Application was filed. There were contentions about the malafides also. More over in Special Criminal Application No.3323 of 2011, which came to be decided on 26.12.2012 by the High Court (Coram: M.R.Shah,J). The said contentions referring to Section 197 were raised in paragraph 7 that there is a bar under Section 197 of Cr.PC read with Section 161 of the Bombay Police Act. The order of the High Court was carried further before the Hon'ble Apex Court by way of Special Leave Appeal (Criminal) No.355 of 2012 which was withdrawn as per order dated 24.2.2012. It is required to be again noted that the High Court in another proceedings, i.e. Criminal Misc. Application No.1799 of 1996 and Special Criminal Application No.422 of 1996 (Coram: D.H.Waghela,J) in the order dated 23.1.1997 had made strong observations deprecating such facts by the accused persons who were the police officers and it is specifically observed:
“The above record of facts clearly show that judicial proceedings and the provisions of the Criminal Procedure Code are prima facie, grossly abused by the petitioner and benefit thereof has also accrued to the other accused persons who are not joined as parties and, therefore, they are not before this Court. Significantly, the petitioner has not made the prayers and obtained the ex-parte interim relief for himself alone and practically succeeded in frustrating the original complaint. The main issue sought to be agitated in the present petition is that the prosecution of the original complaint requires sanction under section 197 of the Code. Thus, without disclosing the facts about the progress and proceedings during the period between the first order dated 21.12.1990 and the filing of the present petition in May 1996, the issue of requirement of sanction is sought to be agitated and the proceedings are delayed by ten more years. Upon calling for the record & proceedings of Criminal Case No.93 of 1992, it was found that stay of the proceedings was also operating by virtue of the interim orders made in Criminal Misc. Application No.5959 of 1999 and before that evidence of the complainant was partly recorded in the trial court without the issue of sanction being raised before the court.
The original complaint clearly alleges gross violation of human rights of a citizen. The enquiry and prosecution prima facie appears to have been scuttled by a series of ingenious proceedings. Such obvious abuse of the process of law by the guardians of law themselves cannot be taken lightly and cannot be countenanced. Necessary orders for the grant of appropriate relief is required to be made after hearing all the parties concerned.” [emphasis supplied] The learned Single Judge has also quoted;
“The second ground which persuades me not to grant relief to the petitioner is that this criminal case has been filed in the year 1992 and though the petitioner has been summoned by non-bailable warrant he has not presented himself in the trial court. This special criminal application has been filed in the year 1996. So more than four years he has managed not to put appearance in the court. That shows how the Police Officers are taking the court process in the criminal cases. This conduct of the petitioner deserves to be deprecated and it reflects how the Police Officers are acting biasly and partially in their own case."
25. Therefore, it is evident that the same contentions have been raised again and again under the guise of different shades and colours of the same issue, and the ultimate object of stalling the proceedings is achieved inspite of the orders passed by even the High Court in different proceedings.
26. The another submission which has been made referring to the judgment of the Hon'ble Apex Court in Criminal Appeal No. 257 of 2011 in case of General Officer Commanding v. CBI and Another with Criminal Appeal No.55 of 2006 in case of Additional Director General v. CBI, to support the submissions regarding Section 197. However, a careful scrutiny of this judgment would clearly suggest that a comparative table which is given in paragraph 53, there is a reference to the Prevention of Corruption Act, 1988 and Armed Forces (Special Powers) Act, 1990, which starts with non- obstante clause and the discussion of the judgment of the Hon'ble Apex Court is with regard to the act of 1990 and reference is made to Section 197 of Cr.PC. Therefore, it has to be read in context of the contentions or the issues involved in the matter. The Hon'ble Apex Court in the same paragraph 53 has also made the observation:
“..................................Thus, there is a marked distinction in the statutory provisions under the Act 1990, which are of much wider magnitude and are required to be enforced strictly.”
27. It is in that context, the observations have been made that the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court, which has been highlighted by the learned counsel without reference to the actual issue which has been focused in that judgment.
28. The submission that if the judicial review of such decision to grant sanction under Section 197 of Cr.PC is allowed, the existence of Section 197 will go away, is thoroughly misconceived. Infact the real issue, which is required to be focused in such cases is that the grant of sanction under Section 197 is justified and whether the act complained of was in discharge of official duty or not, which would decide whether such protection could be available to the officer or not. In the facts of the present case, which has been referred to, clearly suggest about the human rights violation and the brutality in the police custody, does not require any further elaboration or comment, and any such contention that it was in discharge of official duty, cannot be believed or accepted ignoring the settled principles and the guidelines laid down by the Hon'ble Apex Court with regard to the violation of human rights.
29. The contentions which have been raised referring to the provisions of Section 161 of the Bombay Police Act are required to be considered with reference to the statutory provisions under Section 161 of the Bombay Police Act and the judicial pronouncements. The Hon'ble Apex Court in a judgment in case of Japani Sahoo v. Chandra Sekhar Mohanty (supra) has, while dealing with Section 468 of Cr.PC, had the occasion to consider how such subsidiary rules are required to be interpreted in favour of the constitutionality. It has been observed;
“The Court would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera-legis.”
The discussion on this aspect has been made in paragraphs 50 to 52. It has been specifically observed that for the purpose of computing the period of limitation under Section 468 of Cr.PC for taking cognizance, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate or issuance of process by the Court. It is required to be mentioned that though the discussion refers to interpretation of Section 468 of Cr.PC, the focus or the issue remains the same with regard to taking of the cognizance and the statutory provisions of either the Code of Criminal Procedure or the Bombay Police Act. May be, the contentions have been raised referring to Section 197 of Cr.PC regarding the sanction and some contentions have also been raised referring to Section 161 of the Bombay Police Act emphasizing about the delay in taking the cognizance and whether such delay could be interpreted in the manner that the Petitioners can claim any right. The Hon'ble Apex Court however, in the case of Japani Sahoo v. Chandra Sekhar Mohanty (supra) has observed:
“The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the Court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.”
It is required to be mentioned that in the facts of the present case, the cognizance of the offence has been taken within the time and the complainant has approached within the time. However, as discussed above in length, the time has consumed, for which the complainant cannot be denied his claim for justice. It has also been observed that such a statute has to be tested on a touchstone of Article 14 of the Constitution of India. Further, it has been observed:
“The general rule of criminal justice is that "a crime never dies". The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). The Limitation Act, 1963 does not apply to criminal proceedings unless there are express and specific provisions to that effect, for instance, Articles 114, 115, 131 and 132 of the Act. It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict.”
Of course, the word of caution has been expressed referring to the balancing right of the people that one cannot be kept under such apprehension.
30. These observations will again have to be considered while interpreting the provisions of Section 161, which refers to the bar created by the Section for protecting an officer for the acts done in discharge of duty or the act done 'under the 'colour of duty'. However, the words “under colour of duty” have been defined in Stroud’s Judicial Dictionary, Third Edition, and it has been interpreted by the Hon'ble Apex Court that it would include the acts done under the cloak of duty, even though not by virtue of duty. In other words, the veil has to be lifted to see through the alleged offences, and when there are serious allegations about the custodial atrocity or the violence keeping in mind the observations made by the Hon'ble Apex Court time and again referring to the human rights and the right of the individual, such submission based on Section 161 of the Bombay Police Act cannot be accepted. The right of the citizen under Article 21 including the basic human rights have to be considered while appreciating such submissions, and if such contentions are to be accepted at this stage, it would amount to scuttling the judicial process, which is not permissible, when the society is governed by rule of law.
31. Therefore, considering the scope of exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India and also the scope of exercise under Section 482 of the Criminal Procedure Code in catena of judicial pronouncements including the judgment of the Hon'ble Apex Court in case of Central Bureau of Investigation v. K.M.Sharan, 2008 (4) SCC 471 and in case of Som Mittal Vs. Government of Karnataka,AIR 2008 SC 1528 would not justify exercise of any discretion. The present Petitions therefore cannot be entertained on the ground based on Section 161 of the Bombay Police Act and sanction under Section 197 of Cr.PC. Both the Petitions, therefore, deserve to be dismissed with specific observation and the note that it is a classic case of abuse of process scuttling the judicial process for decades. Both the Petitions accordingly stands dismissed in limine.
(Rajesh H. Shukla,J)
Further Order – 20.7.2012:
32. After the order was pronounced, at 5 0' clock in the evening, learned Counsel Shri I.H.Syed for the Petitioners requested that the stay may be granted. Therefore, in order to hear the other side and to consider the request in presence of the other side, the matter is ordered to be placed on 23rd July, 2012 at 11 0' clock and learned Counsel Shri Syed will remain present at 11 0' clock.
(Rajesh H. Shukla,J)
Further Order – 23.7.2012:
33. In view of the request made by learned Counsel Shri Syed for the Petitioners on 20.7.2012, today it has been mentioned for staying the operation of the order for a period of 4 weeks to enable the Petitioners to approach the Hon'ble Apex Court, which has been strongly objected by learned Public Prosecutor Shri Prakash Jani and learned Senior Advocate Shri P.C.Kavina for the Original Complainant.
34. Having heard both the sides and considering the request, interest of justice would be served if the operation of the order is stayed for a period of 3 weeks to enable the Petitioners to approach the Hon'ble Apex Court, with clear understanding that no further extension or time shall be granted. The operation of the order is therefore stayed up to 13.8.2012.
(Rajesh H. Shukla,J) Jayanti*