Ahmedabad, 14 October, 2011

Following is complete judgement of Gujarat High Court (delivered on 10 October 2011) denying controversial suspended cop Sanjiv Bhatt relief in 1990 Jamjodhpur murder case. While decision on Sanjiv Bhatt’s bail is going to arrive this Monday on 17 October in another case, it should be noted that it was 18 October in year 1990 when a victim was murdered allegedly by Bhatt and others in police custody.

Before going to complete draft of judgement, please read these glimpses.

-In Jamjodhpur murder case ‘A’ summary was not accepted by the court and the learned Magistrate passed an order issuing process to all the accused persons including to the present petitioner. Thereafter, the accused persons filed Special Criminal Application No. 43/96 challenging the very same order dated 20.12.1995 and the same was withdrawn after arguments. This fact was never brought to the notice of the State Government and therefore the State Government was persuaded to file revision application at the relevant time. Further, in the order passed by the High Court in Criminal Misc. Application No. 1799 of 1996 dated 23.1.2007 with regard to the same incident, the High Court has recorded that the accused have grossly abused the provisions of CrPC and have scuttled the proceedings of the prosecution by series of ingenious acts. It is also contended that these aspects have been suppressed by the petitioner. Therefore, having regard to the voluminous documentary evidence and the statement of witnesses, the decision was taken for withdrawal of the revision application.

-Learned Public Prosecutor Mr. Jani pointedly referred to the FIR at p. 126 as well as the order of the Magistrate at p. 134-139 to emphasise that there is a specific observation made that the deceased brother of the complainant died in the police custody due to ill-treatment and this has been further corroborated and supported by the medical evidence when the opinion of the expert was sought and the expert has clearly opined that “Rhabdomyolysis could be caused by extraordinary kind of physical exercise in an individual who is not accustomed to do regular physical exertion” and there is specific allegation that he was made to undergo the exercise with tremendous pressure and exertion which has led to the death of the deceased brother of the complainant.

-The brother of the complainant was dragged from his house by the police and it is not the case that he was in the riot and such injury has been caused which is apparently not recorded or found in the detailed analysis. The medical evidence suggest clearly about the cause of death due to ill treatment by the police. He referred to the papers in detail and submitted that Dr. HL Trivedi, Director of the Institute of Kidney Diseases & Research Centre, Ahmedabad, on the basis of the investigation made, clearly stated that the said renal failure could be caused due to excessive exercise or strain which the deceased was compelled to undergo. It, on the contrary, suggests the way in which the ill treatment has been meted out so that apparently there is no evidence.

-The investigation was initially conducted by local police which was later on transferred to the State CID Crime. The said FIR is at Annexure-C. The CID Crime sought the expert opinion of Dr. HL Trivedi, Director of the Institute of Kidney Diseases & Research Centre, Ahmedabad regarding cause of death and CID Crime filed a final report in the form of ‘A’ summary on 15.7.1995. However, the learned Judicial Magistrate, First Class,a rejected the said report and issued the process against the petitioner and directed committal of the case to the Court of Sessions. A copy of the said order is at Annexure-I. The said order was challenged by way of revision filed by the State being Criminal Revision Application No. 21/96. Thereafter, in the year 2004, Special Criminal Application No. 164 of 2004 was filed by police officer Anopsinh Jethva and the High Court passed an order directing the Sessions Court to decide the merits of the said revision application. Thereafter the time passed and again the State Government passed an order to withdraw the said criminal revision application on 27.9.2004 which is at Annexure-P. Thereafter, again, the said decision to withdraw the criminal revision application was withdrawn by communication dated 28.3.2005.

Complete copy of oral judgement follows:

ORAL JUDGMENT

Rule. Learned APP Mr. KP Raval waives service of rule for respondent No. 1-State and learned advocate Mr. Apurva Kapadia for respondent No. 2.

2. The present petition has been filed by the petitioner-original accused under Art. 226 & 227 of the Constitution of India and also under sec. 482 of the Code of Criminal Procedure, 1973 for the prayer that appropriate writ, order or direction may be issued to quash and set aside the order in Criminal Revision Application No. 21/96 passed by the learned Addl. Sessions judge, Khambhaliya, Dist. Jamnagar, dated 15.7.2011. It is also prayed that pending hearing and final disposal of this petition, all proceedings (emphasis supplied) arising out of C.R. No. I-102/90 registered at Jam-jodhpur Police Station may be stayed in the interest of justice, on the grounds stated in the memo of petition, inter alia, that it is politically motivated and only to cause harassment the decision has been taken.

3. The facts of the case, briefly stated in the petition, are that in the year 1990 when the petitioner was Asst. Superintendent of Police at Jamnagar, an incident of rioting took place at Jam-jodhpur and after controlling the situation an FIR being C.R. No. I-96/90 came to be registered at Jam-jodhpur Police Station for the alleged offenses under sec. 147, 148, 149, 295, 395, 337, 454, 455, 452, 427, 436 of IPC as well as under the provisions of TADA. 133 rioters were arrested from the place of offence including the one like Shri Prabhudas Madhavji Vaishnani who was alleged to be a VHP activist. Out of about 25 persons who are said to have been injured, 8 persons were referred to the Civil Hospital, Jamnagar.

4. It is the case of the petitioner that late Prabhudas Madhavji Vaishnani was not injured and, therefore, was remanded to judicial custody with other accused persons and there was no complaint about any injury to the said accused including to the jail authorities. Thereafter, on 1.11.1990 Prabhudas Madhavji Vaishnani complained to the jail authorities about back pain and was treated by the jail doctors and thereafter on 3.11.1990 Prabhudas Madhavji Vaishnani was sent to the government hospital and ultimately he died on 18.11.1990 in the hospital and the dead body was handed over to his brother (without any medico-legal case or post-mortem). The death certificate was issued by the hospital stating that the cause of death was due to acute renal failure with cardio-respiratory arrest. The said certificate is annexed as Annexure-B to the petition. An application was given for conducting post-mortem report and the said application was registered as FIR being C.R. No. I-102/90 at Jam-jodhpur Police Station against the police officers including the present petitioner for the alleged offences under sec. 302, 323, 506(1) and 114 of the Indian Penal Code due to the death of the said Prabhudas Madhavji Vaishnani.

5. It is contended that the decision was taken by the Government in 1996 to challenge the order passed by the JMFC dated 20.12.1995 taking cognizance against the petitioner and other officers and pursuant thereto the revision also was filed which created a right in favour of the petitioner and other police officers for defending them with regard to any act committed by them during the time of controlling the riots. It is therefore contended that it created a vested right and any direction or communication for withdrawal of the said revision without any reasons is mala fide. It is contended that by the said communication, the right of defence created by the Government Resolution in favour of the petitioner and other police officers got extinguished and therefore the decision is bad. It is also contended that at the relevant time the State Government refused to grant sanction under sec. 197 of CrPC read with sec. 161 of the Bombay Police Act and when the Government was of the opinion that the alleged act committed were in discharge of the official duties, the Government cannot now be permitted to change the stand. It is contended that cognizance was wrongly taken by the Judicial Magistrate, First Class, which is challenged in the aforesaid revision, which cannot be permitted now by the State Government to be withdrawn. It is also contended that as the petitioner has deposed against the Chief Minister, the Chief Minister is trying to put pressure to stop him from deposing before the authority or the court which has led to this decision and therefore it is mala fide.

6. A reply has been filed by the State contending, inter alia, that frivolous and irresponsible allegations have been made vaguely to serve the purpose. It is also contended that the decision of the State Government to withdraw the revision application, which remained pending for 15 years without any interim orders, cannot be said to be mala fide. It is contended that the revision application was filed by the State and the State, as per the doctrine of dominus litis, has every right to withdraw such application. It is contended that the result would be that the Sessions Court would try the offence alleged by the complainant and render a judicial verdict after following the judicial process. Therefore, the petitioner has no locus standi to allege or challenge the communication of the State Government regarding withdrawal of the said revision application to serve his purpose.

7. It is also contended that the only ground of challenge in the petition is vague assertion and self-complimentary allegations of mala fide and since the petitioner has given some statements against the Government before the SIT or other commissions conducting the investigation of the riot cases, the State Government has withdrawn the revision application, is without any basis. It is contended that such allegations are irresponsible, malicious and vexatious and factually incorrect and therefore devoid of merits. In fact, the decision was taken as the Government was receiving large number of representations that the offence in question had taken place in the year 1990 and it has remained pending and therefore the revision is sought to be withdrawn and requested the learned public prosecutor to withdraw the revision application which has been granted by the learned Sessions Court, which cannot be said to be in any way causing any prejudice to the rights of the petitioner.

8. It is also emphasised and contended about the detailed manner in which the learned Magistrate has passed the order . When the brother of the complainant died in the year 1990 due to police atrocities as alleged by the complainant involving the present petitioner and when ‘A’ summary was not accepted the learned Magistrate passed an order issuing process to all the accused persons including to the present petitioner. Thereafter, the accused persons filed Special Criminal Application No. 43/96 challenging the very same order dated 20.12.1995 and the same was withdrawn after arguments. This fact was never brought to the notice of the State Government and therefore the State Government was persuaded to file revision application at the relevant time. Further, in the order passed by the High Court in Criminal Misc. Application No. 1799 of 1996 dated 23.1.2007 with regard to the same incident, the High Court has recorded that the accused have grossly abused the provisions of CrPC and have scuttled the proceedings of the prosecution by series of ingenious acts. It is also contended that these aspects have been suppressed by the petitioner. Therefore, having regard to the voluminous documentary evidence and the statement of witnesses, the decision was taken for withdrawal of the revision application. It is also contended that the complainant has been pressing that any delay in conducting the trial would defeat the trial and would do injustice to the complainant, whose brother has died in police atrocities (custodial death). It is also contended that an independent revision application has been filed before the Sessions Court which is pending and therefore such conduct of the petitioner would disentitle him from claiming any relief.

9. A reference is made to the rojkam of the Sessions Court to highlight that the petitioner has filed such an application before the Sessions Court in Sessions Case No. 35 of 2001. It is also contended that though such contention has been raised that the revision application has been heard, in fact, the rojkam itself proves it wrong which is to the knowledge of the petitioner and his advocate.

10. It is, therefore, submitted that so far as the applicability of sec. 197 of CrPC is concerned, it could be decided by the competent court while trying Sessions Case No. 35 of 2001 and the order passed by the High Court in Criminal Misc. Application No. 1799 of 1996 dated 23.1.2007 is confirmed by the Hon’ble Apex Court in SLP filed by the other co-accused and therefore it has merged in the order of the Hon’ble Apex Court and it will not be in the interest of justice to further delay the commencement of the trial.

11. A reference is also made to one Commission appointed by the State Government at the relevant time and it is contended that the State Government has taken an independent, impartial decision to withdraw the revision application so as to ensure that a full fledged trial by the competent sessions court can take place and the competent court having jurisdiction may judicially adjudicate the issue since it is desirable in the interest of justice. It is therefore contended that it is not in the interest of justice that criminal trial awaits even framing of charges after 20 years of the alleged incident.

12. An affidavit-tin-reply has been filed by respondent No. 2 original complainant contending, inter alia, that the question involved, whether the State Government could have been permitted to withdraw the revision application or not, is required to be considered in background of the facts which are required to be considered from the angle of respondent No.2-complainant which have been stated in para 3 as under:

(a) The offence in question is more than 21 years old and is awaiting even framing of charge since 21 years.

(b) This Hon’ble Court has already held, with respect to the very same incident that the accused persons (including the petitioner herein) are guilty of abuse of the process of law and protracting trial.

(c) Many witnesses have reached an advanced age, some of them have died due to the deliberate, frequent and cunning delaying tactics adopted by the petitioners and his subordinate police officers who are accused of serious criminal offences which has already caused substantial prejudice to the deponent-complainant.

(d) Question of scope of section 197 of the Code and its applicability is kept open by the Sessions Court in the impugned order itself and, therefore, no prejudice is caused to the petitioner or any of the accused.

(e) The allegation made by the petitioner regarding his alleged statement before some other investigating agency being the reason for the State Government to withdraw the revision application is found to be false and fabricated.

13. It is also contended that the subject-matter of challenge in the said revision application was an order dated 20.12.1995, whereby the court of Magistrate had taken cognizance of the offence and issued the process. The said order does not decide culpability of the accused and therefore it is only an interlocutory order against which the revision application was even otherwise not permissible or competent. Therefore, it is contended that considering the scope of revision under sec. 397, the said Criminal Revision Application No. 21 of 1996 was even otherwise not maintainable.

14. It is, therefore. contended that the present petitioner and other police officers have successfully protracted the litigation since last 21 years and therefore any such attempt should not be permitted at this belated stage. It is also contended that this Court may not exercise the jurisdiction either under Art. 226 of the Constitution of India or under sec. 482 of CrPC. It is also contended that matter is old, some witlessness have become very old and by lapse of time which has been caused by delaying tactics of the accused persons including the petitioner who are police officers, if it is permitted to be protracted any further, it would not result in bringing out the truth and the complainant will be denied of any justice. Therefore, it has been contended that the entire petition is based on two submissions canvassed by the petitioner which have been stated in the affidavit in para 6, viz.

(i) mala fides of the Government in withdrawing the revision application, and

(ii) protection under sec. 197 of CrPC.

15. However, it is contended that irrespective of the stand of the Government, respondent No. 2 complainant is entitled to get the complaint tried by the court of competent jurisdiction regarding the alleged offences and the allegations are made only to raise a ground for either causing delay and by making such allegations the petitioner desires to cause further delay. It is contended that the Statement Government had also taken the decision as back as on 27.9.2004 to withdraw the revision application. At that time there was no animosity, no such allegations of mala fide were there in existence, and yet, when the decision is sought to be implemented, again for withdrawal of the revision application, it is challenged on such grounds of mala fides.

16. A reference is made to the details about the procedure and hearing of the revision application to emphasise how it was developed for reconsideration of the decision by the Government. It is also contended that, in fact, the filing of the revision application in the name of the State Government itself was an abuse of the process of law at the behest of the police officers who were accused, including the present petitioner, and when they failed to get any relief from the High Court as well as from the Hon’ble Supreme Court, they have tried to get the same relief by filing such revision application before the Sessions Court. Therefore, it is contended that when things are again reconsidered it is sought to be stopped, which is not permissible.

17. It is also specifically contended that the State government must clarify whether it had details including all the papers of Criminal Misc. Application No. 4964 of 2003 in Special Criminal Application No. 43 of 1996 before the revision application was filed and whether such papers were considered or not. It is contended that the petitioner has suppressed crucial documents as well as the facts and has made the allegations only to cause delay. Reference is also made to the sequence of events to highlight the abuse of the process of law and details have been stated as to how the litigation has been protracted at the instance of the accused persons including the present petitioner. The order of the High Court in Criminal Misc. Application No. 1799/96 is also quoted, which is reproduced below:

“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 re 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 proprosecution 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.

The original complainant 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)

18. Learned counsel Mr. I.H. Syed for the petitioner referred to the papers and described the sequence of events and the details and gave a brief of the details with regard to the incident of rioting which led to filing of the FIR against the present petitioner accused. However, he submitted that the deceased Prabhudas Madhavji Vaishnani died due to renal failure on 18.11.1990 and there were no marks of injury and there were no complaints before any authority. He has tried to emphasise this aspect and submitted that it is only on the basis of investigation the sanction was refused and the closer report was filed by the investigating agency and thereafter the said report was not accepted by the court of Magistrate in the year 1995. He emphasized that though the court of Magistrate had not accepted the report and has passed the order dated 20.12.1995 taking cognizance of the offence against the petitioner, the decision of the Government was in the form of a G.R. that such an action was taken by the police officers, including the petitioner, during the course of their duty and therefore it was decided to challenge the said order before the Sessions Court.

19. Learned counsel Mr. Syed submitted that once it was decided by the Government to give protection to the police officers including the petitioner, it cannot now change the stand merely because the petitioner has deposed against the Government or the Chief Minister. He submitted that by such decision taken by the Government, a right has been created in favour of the petitioner which cannot be taken away. He submitted that such decision is non-speaking and he pointedly referred to the order at Annexure-V on Exh. 61 purshis for withdrawal of the criminal revision application which is filed on the basis of such decision and submitted that it is not permissible. Learned counsel Mr. Syed also tried to submit that the revision application was heard at length and in fact it was reserved for judgment in 1996 for which he referred to the details and tried to submit that when the high Court had directed that it could be decided on merits, now it cannot be permitted to be withdrawn. He, therefore, submitted as to whether the State can now be permitted to change its stand.

20. Learned counsel Mr. Syed further submitted that it will have to be considered as per the provisions of sec. 197 of CrPC read with sec. 161 of the Bombay Police Act. He pointedly referred to sec. 197(2) of CrPC and submitted that it clearly provides that ‘no Court can take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the sanction of the Central Government.’ He, therefore, submitted that it could not have been permitted for which he has also referred to sec. 161 of the Bombay Police Act. He submitted that, admittedly, the petitioner was on duty and the act was done in discharge of his duty. He emphasised at the cost of repetition that the stand of the Government was that it was in discharge of duty and therefore had refused sanction and therefore it cannot be now permitted to change its stand by withdrawing such revision application.

21. He referred to the papers and submitted that the cause of death is acute renal failure as it can be seen and there are no marks of injury which would even otherwise not justify and therefore from the medical and other evidence also the charge cannot be sustained. Learned counsel Mr. Syed has also referred to the post-mortem note which is produced on record and submitted that there is no evidence of any injury. He submitted that for the purpose of granting sanction all the papers are placed and when the sanction was refused, prima facie, the satisfaction has to be shown and therefore while rejecting the report, the Magistrate has to satisfy that there is a prima facie case for offence under sec. 302. Therefore, learned counsel Mr. Syed again referred to the order passed in Criminal Misc. Application No. 4964/2003 in Special Criminal Application No. 43/96 to emphasise the observation, “needless to say that the revision application shall be decided on merits” to emphasise that when the High Court had directed that the revision application is required to be decided on merits, it cannot be permitted to be withdrawn.

22. Learned counsel Mr. Syed submitted that the communication or decision of the Government to withdraw the revision application is mala fide and biased. He submitted that no reasons are stated in the said communication for taking the decision for withdrawal. No hearing has been given and therefore it is in violation of the rules of natural justice.

23. Learned counsel Mr. Syed referred to and relied upon the judgment in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., reported in (1978) 1 SCC 405, and referring to para 8 he emphasised the observation that the order passed must be judged by the reasons and cannot be supplemented or explained by the affidavit. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in the case of Kranti Associates Private Limited and anr. v. Masood Ahmed Khan and ors., reported in (2010) 9 SCC 496 (para 47), and the judgment in the case of Zenit Mataplast Private Limited v. State of Maharashtra and ors., reported in (2009) 10 SCC 388 (para 22). He has also referred to and relied upon the judgment in the case of Basudeo Tiwary v. Sido Kanhu University and ors., reported in (1998) 8 SCC 194, and tried to submit referring to para 9 and 10 that there has to be a procedural safeguard like natural justice and it has to be observed even when the statute is silent. He has also referred to and relied upon the judgment in the case of Mohd. Yunus Khan v. State of Uttar Pradesh and ors., reported (2010) 10 SCC 539 (para 21, 22 and 23), and submitted that actual bias may not be there, but the likelihood of bias is also sufficient for quashing the decision.

24. Learned Public Prosecutor Mr. P.K. Jani referred to the details to refer to the history and the sequence of events briefly and submitted that it is an incident of 1990, where the police officers including the petitioner are alleged to have committed some acts which have resulted in death of a person. He submitted that after the investigation. initially ‘A’ summary report was sought to be filed which was not accepted even at the relevant time by the court of Judicial Magistrate, First Class, who took cognizance and issued the process. He pointedly referred to the same and submitted that on the basis thereof, the FIR came to be lodged against the petitioner for the alleged offence under sec. 302. He submitted that the version stated in the FIR is further corroborated and supported by the report and other material, which further lends corroboration regarding the brutality, atrocity and/or custodial ill-treatment to the decease brother of the complainant.

25. He pointedly referred to the papers including the order of the learned Magistrate dated 20.12.1995 produced with the affidavit at p. 134 and submitted that this is the basis and the said order was challenged by other accused persons by filing Special Criminal Application No. 43/96 which came to be withdrawn in the year 1996, as the High Court was not inclined. However, he submitted that in spite of withdrawal of Special Criminal Application No. 43/96 before the High Court, the facts may not have been properly placed before the Government authority at the relevant time and it led to filing of Criminal Revision Application No. 21/96 by the State Government and thereafter, though the case has been committed to the Court of Sessions, and it has been numbered as Sessions Case No. 35 of 2001, it has been kept at that stage without any further progress for the reason that the revision application is pending and there were other proceedings also by the other co-accused.

26. Learned Public Prosecutor Mr. Jani strenuously submitted that the present petition has been filed by way of abuse of the process of law and also by suppression of fact that an independent revision application with delay condonation application has been filed by the petitioner which is pending before the Sessions Court in Sessions Case No.35 of 2001. He submitted that the petitioner is very well aware and is guilty of suppression of facts and has not come with clean hands that such an application is already pending. He submitted that it has not been conveniently stated in the present proceedings. He, therefore, submitted that similar contentions which are sought to be raised in this petition have been already raised and therefore it could be heard and decided by the Sessions Court. However, this petition is filed only with a view to see that when the matter has been kept for framing of the charge, it is delayed. Learned Public Prosecutor Mr. Jani pointedly referred to the prayer clause and submitted that as it transpires from the prayer that the prayer is with regard to the decision regarding withdrawal of the revision application, but in fact the subsequent prayer is regarding stay of all proceedings in connection with FIR being C.R. No. 102/90 which clearly suggest that his design is to stall the proceedings anyhow and it is only with such an idea the present petition is filed so that the trial may not commence and the petitioner is not required to face the trial or undergo the judicial process of trial. Therefore, to avoid such judicial procedure the present petition has been filed as and by way of abuse of the process of court.

27. Learned Public Prosecutor Mr. Jani referred to the papers and submitted that in view of the facts which have been brought to the notice of the Government as well as the complaints, it was decided by the Government to withdraw the revision application as back as in 2004. Therefore, it cannot be said that there is any ill-motive as sought to be canvassed when such decision was already taken in 2004, but it could not be carried further. Learned Public Prosecutor Mr. Jani further submitted that it cannot be said that for the first time the decision for withdrawal of the revision application is taken in July 2011 with any such so-called mala fide intention or to cause harassment or with any bias.

28. Learned Public Prosecutor Mr. Jani submitted that the State has filed the petition and as per the concept of dominus litis it has every right to withdraw the proceedings which have been filed. He emphasised and submitted that like any other litigant if the State has pursued the proceedings, it has also the right to withdraw the same and no one can say that the party who has filed the proceedings cannot be permitted to withdraw the proceedings and he should be compelled to proceed further against its desire. Learned Public Prosecutor Mr. Jani submitted that the court may consider the predicament of the Government that when the decision was taken initially to file the revision application, perhaps the order of the High Court in Criminal Misc. Application No. 1799/96 was not there and thereafter in light of the observations made by the High Court, which order was also confirmed by the Hon’ble Apex Court, and also the subsequent material including the complaints from the complainant led the Government to reconsider its decision. He also submitted that in fact even before the observations could be made by the High Court in Criminal Misc. Application No. 1799/96 vide order dated 23.1.2007, the Government had already taken a decision as back as in 2004 to withdraw the revision application and it was decided to allow the proceedings to take its own course according to the normal judicial process as otherwise it could be accused of shielding the officers. On the other hand, when it decides to follow the procedure and the judicial process by way of trial by the competent court against the concerned accused persons, allegations of bias and mala fides are made by the accused persons like the petitioner. Such allegations are made only to serve their purpose and it is only with such ulterior motive wild allegations are made against the Government or the Chief Minister. Therefore, Learned Public Prosecutor Mr. Jani submitted that confining the facts of the case and considering the concept of dominus litis, there is no reason why the Government should not be permitted to withdraw the revision application.

29. Learned Public Prosecutor Mr. Jani submitted that even on merits it is required to be considered that when the court of competent jurisdiction – the Magistrate – has not accepted the report of the investigation and has issued the process taking cognizance, it has to be taken to a logical conclusion particularly when it has been committed to the Court of Sessions and it has numbered as Sessions Case No. 35 of 2001. He emphasised and submitted that at this stage without any trial the entire process cannot be scuttled when there is more than sufficient evidence against the accused prima facie suggesting the offence.

30. Learned Public Prosecutor Mr. Jani submitted that a few documents are required to be considered such as,

(a) FIR at p. 27

(b) Report of the inquiry agency at p. 126

(c) Order of the learned Magistrate at p. 134-139

(d) Revision Application at p. 153

(e) The State application to withdraw the revision application based on the representation of the first informant at p. 906 and the purshis given, and

(f) The impugned order permitting withdrawal of the Revision Application at p. 348.

31. Learned Public Prosecutor Mr. Jani pointedly referred to the FIR at p. 126 as well as the order of the Magistrate at p. 134-139 to emphasise that there is a specific observation made that the deceased brother of the complainant died in the police custody due to ill-treatment and this has been further corroborated and supported by the medical evidence when the opinion of the expert was sought and the expert has clearly opined that “Rhabdomyolysis could be caused by extraordinary kind of physical exercise in an individual who is not accustomed to do regular physical exertion” and there is specific allegation that he was made to undergo the exercise with tremendous pressure and exertion which has led to the death of the deceased brother of the complainant.

32. He has also submitted that though it has been submitted by learned counsel Mr. Syed that revision application was kept for orders and the arguments were over in the year 2004, it is false and the record belies any such averments. He submitted that he has also referred to the same proceedings and the rojkam of the same revision application which clearly states that even thereafter the matter has been kept for argument as recently as in June 2011 and the accused persons including the present petitioner have participated thereafter through their lawyers and such submissions are therefore devoid of any merits and contrary to the record.

33. Learned Public Prosecutor Mr. Jani submitted that another submission of learned advocate Mr. Syed is that the decision to withdraw the revision application is a non-speaking order. However, he submitted that it is an administrative or executive communication and therefore there is no question whether it is a speaking order or not. He submitted that on the basis of such communication, the Public Prosecutor has been given instructions and based on such instructions, the purshis has been filed. While deciding the purshis hearing has been afforded to the learned advocates including the advocate of the present petitioner and the impugned order has been passed. Therefore, the submission about violation of the rules of natural justice is without any decision.

34. Learned Public Prosecutor Mr. Jani referred to the provisions of sec. 321 of CrPC and submitted that as provided in this section, the State can withdraw the prosecution with the permission of the court and the court is empowered to grant such permission or refuse the same. In support of this submission, he has referred to and relied upon the judgment in the case of M/s. Prestige Lights Ltd. v. State Bank of India, reported in JT 2007 (10) 218.

35. He, therefore, submitted that all these proceedings and exercise made by the petitioner are only to cause further delay which would in fact result in denial of justice to the deceased brother of the complainant who has been the victim of police brutality and who succumbed to death which is evident from the record. He therefore submitted that in these proceedings the court may not entertain and it could be considered in the sessions trial where every aspect would be examined on its merits and the petitioner will have sufficient opportunity, but he cannot scuttle the entire judicial process and avoid to face the prosecution for the alleged offences.

36. Learned Sr. Counsel Mr. P.C. Kavina appearing with learned advocate Mr. Apurva Kapadia for respondent No. 2 original complainant submitted that the petitioner has been crying foul before the court when shield provided by the State is being lifted. He emphasised and submitted that he enjoyed the patronage of the State Government for some time and it helped him in protracting the litigation and avoid facing the trial. However, in fact, correct facts were not placed before the authority when the decision to file the revision application was taken and, ultimately, pursuant to the observations made by the High Court in the order passed in Criminal Misc. Application No. 1799/96 vide order dated 23.1.2007 the decision has been reconsidered. Learned Sr. Counsel Mr. Kavina submitted that though such decision to withdraw the revision was taken way back in 2004, it was not given any effect till date, which is on the contrary giving benefit to the present petitioner that he succeeded in delaying the proceedings even after the State had decided to withdraw the revision application. He emphasised and submitted that this is reflecting on the system and the procedure that a person like the victim who is crying for justice is denied justice even after 21 years and still it is sought to be stalled further by one or other method.

37. Learned Sr. Counsel Mr. Kavina submitted whether it is open to say by the petitioner in background of these facts that there is a bias​? Learned Sr. Counsel Mr. Kavina submitted that apart from that, whether the State has been giving him protection or shield and he has been enjoying it for all these years or whether it is sought to be removed or there is any mala fide in the action of the State, should all be considered from the angle of the victim like respondent No. 2 complainant who has been pursuing the matter desperately for getting justice for the death of his brother and still he is denied such right. He submitted that whether it was in discharge of duty or whether the death was homicidal or not is a matter which can be considered at the trial. When the competent court of Magistrate having examined the record passed an order rejecting the summary report filed by the investigating agency and issued the process taking cognizance of the same, it should be taken to a logical conclusion at least now after 21 years. He emphasised that in criminal justice system the right of the victim who is crying for justice may not altogether be ignored when he has been hammering and going from pillar to post for justice which has been denied conveniently by such delays. Therefore, learned Sr. Counsel Mr. Kavina submitted that the ground of delay should not come handy to the petitioner where he himself could be a mischief-monger and the State is also siding with him and shielding him. He submitted that once the Judicial Magistrate has rejected the summary report taking cognizance of the offence, it has to be taken to a logical conclusion by the ordinary judicial process of trial by the competent court and the petitioner cannot avoid or subvert such judicial process by resorting to any dilatory tactics or raising any excuse on the ground of delay. He submitted that if there is a delay, it is more difficult for the prosecution or the complainant to get the evidence rather than the accused claiming the delay as a ground for subverting the judicial process.

38. Learned Sr. Counsel Mr. Kavina submitted that the order of the Judicial Magistrate by which the case has been committed to the Court of Sessions, which has been registered as Sessions Case No. 35 of 2001, has not even proceeded an inch for 10 years which again suggests how the process could be abused and misused by the accused including the present petitioner. He emphasised and submitted that the order of the learned magistrate has been confirmed by the High Court and the High Court, on the contrary, has made observation in the order passed in Criminal Misc. Application No. 1799 of 1996 while discussing about the abuse of the process at the instance of the accused persons like the petitioner and the said order was also carried before the Hon’ble Apex Court and the SLP has not been entertained. Therefore, the order of the High Court has merged with the order of the Hon’ble Apex Court and in spite of that the fact of filing a revision application at the Sessions Court is not disclosed in the present petition which again suggests that conduct of the petitioner has to be deprecated and this petition should be dismissed only on the ground of suppression of material facts.

39. Learned Sr. Counsel Mr. Kavina submitted that there is no vested right in favour of the accused or co-accused and whether sanction could be granted or refused under sec. 197 would be a matter which can be considered at the trial independently by the competent court of sessions and by raising such technical grounds the petitioner cannot further postpone the judicial process. He submitted that otherwise it would amount to denial of justice to the victim and it will be a total abuse of the process of law by the accused. He submitted that as rightly pointed out by the learned Public Prosecutor, even the prayers which have been very carefully and craftily drafted requires to be considered closely that in the guise of such contentions and the dispute, what he intends is that the proceeding should not proceed further in connection with C.R. No. 102/90. He submitted that the submission of the learned counsel for the petitioner that any right has accrued in favour of the accused is ill-founded as there is no such law or provision under any jurisprudence. He submitted that the decision for withdrawal was taken as back as in 2004 which was not given effect to and therefore the submissions about mala fide are without any basis and, on the contrary, it suggests that the petitioner has been, in spite of such decision by the State, enjoying the benefit for a further period. He further submitted that on the basis of such communication by the Government, the purshis has been given before the court and on that basis after hearing all concerned the impugned order has been passed. Therefore, rules of natural justice cannot be said to have been violated.

40. He pointedly referred to the observations made by the High Court while passing the order in Criminal Misc. Application No. 1799 of 1996 with Special Criminal Application No. 422 of 1996 dated 23.1.2007 (Coram: D.H. Waghela, J.) and submitted that it has been referred and quoted about the tactics which have been adopted for delaying the proceedings. He therefore submitted that it is required to be mentioned that the brother of the complainant was dragged from his house by the police and it is not the case that he was in the riot and such injury has been caused which is apparently not recorded or found in the detailed analysis. The medical evidence suggest clearly about the cause of death due to ill treatment by the police. He referred to the papers in detail and submitted that Dr. HL Trivedi, Director of the Institute of Kidney Diseases & Research Centre, Ahmedabad, on the basis of the investigation made, clearly stated that the said renal failure could be caused due to excessive exercise or strain which the deceased was compelled to undergo. It, on the contrary, suggests the way in which the ill treatment has been meted out so that apparently there is no evidence. Learned Sr. Counsel Mr. Kavina submitted that the system has been exploited by persons like the present petitioner who are concerned with the administration of law and now they are trying to stall the judicial process which cannot be permitted to be exploited any further. Therefore, he submitted that the present petition may not be entertained.

41. In view of rival submissions, it is required to be considered whether the present petition can be entertained or not.

42. The investigation was initially conducted by local police which was later on transferred to the State CID Crime. The said FIR is at Annexure-C. The CID Crime sought the expert opinion of Dr. HL Trivedi, Director of the Institute of Kidney Diseases & Research Centre, Ahmedabad regarding cause of death and CID Crime filed a final report in the form of ‘A’ summary on 15.7.1995. However, the learned Judicial Magistrate, First Class,a rejected the said report and issued the process against the petitioner and directed committal of the case to the Court of Sessions. A copy of the said order is at Annexure-I. The said order was challenged by way of revision filed by the State being Criminal Revision Application No. 21/96. Thereafter, in the year 2004, Special Criminal Application No. 164 of 2004 was filed by police officer Anopsinh Jethva and the High Court passed an order directing the Sessions Court to decide the merits of the said revision application. Thereafter the time passed and again the State Government passed an order to withdraw the said criminal revision application on 27.9.2004 which is at Annexure-P. Thereafter, again, the said decision to withdraw the criminal revision application was withdrawn by communication dated 28.3.2005.

43. However, in the meanwhile, there were some proceedings before the High Court in the form of Special Criminal Application Nos. 971 of 2007 and 973 of 2007. Criminal Cases in the form of private complaints were also filed by various persons which have been registered as Criminal Case Nos. 90/92, 91/92 and 93/92 with regard to atrocity of police. The High Court passed an order in Criminal Misc. Application No. 1799 of 1996 dated 23.1.2007 with regard to the same incident and the said order specifically made observations with regard to the incident and the conduct of the police officers. Again, it was carried before the Hon’ble Apex Court by way of an SLP and the same was withdraw as it was not entertained.

44. Though the learned counsels have referred to the facts in detail as well as perused the record threadbare, the moot question which is required to be considered is whether the communication/decision taken by the Government dated 6.7.2011 to withdraw Criminal Revision Application No. 21/96 pending before the Sessions Court and pursuant thereto the purshis (exh. 61) given by the Public Prosecutor at Annexure-U for withdrawal of the revision application and the impugned order passed thereon granting such permission, can be said to be erroneous which would call for exercise of discretion by this Court under Art. 226 & 227 of the Constitution of India or the inherent jurisdiction under sec. 482 of CrPC.

45. The first aspect with regard to the facts are not required to be repeated as it has already been recorded while considering the submissions of the learned advocates as regards the incident and the resultant effect of the death of the brother of the first informant/complainant which had led to filing of the FIR which has been also after the order of the Judicial Magistrate, First Class, taking cognizance and directing issuance of the process. Not only that, a sessions case has been registered being Sessions Case No. 35 of 2001. Therefore, the point which has been much emphasised by learned counsel Mr. Syed that a right has accrued and the Government cannot change its stand and cannot be permitted to withdraw the revision, with much emphasis referring to the order of the High Court in Criminal Misc. Application No. 4964 of 2003 in Special Criminal Application No. 43 of 1996 that it was directed that it has to be decided on merits, is required to be considered.

46. Further, whether the said revision application pending before the Sessions Court would be maintainable or not is another aspect inasmuch as the prayer or order which is challenged in the revision would be prima facie an interlocutory order. However, apart from considering the maintainability of the revision itself and considering the merits of the present case with regard to the contention that whether such withdrawal of revision is permissible or not, whether it is mala fide or not, is required to be considered.

47. The submissions made by learned counsel Mr. Syed do not reflect as to on what basis the petitioner can claim that any right has accrued in his favour, merely because the Government has taken a decision at one point of time to file the revision application. The decision of the Government has nothing to do with any right of the petitioner as an accused in a criminal case, particularly Sessions Case No. 35 of 2001. The revision application is in fact regarding the decision to grant sanction for prosecution. Again, it is required to be considered, as canvassed by the learned advocates, that initially there may not be any sanction, but that does not preclude the Government from reconsidering the same when the material has been brought to the notice including the order of the High Court making clear observation about the abuse of power by the co-accused persons in the very incident.

48. It is in background of these facts, when the submission about any right having been accrued in favour of the petitioner, one fails to appreciate as to how any right can be said to have accrued. In fact, there is no right with the accused like the petitioner. One cannot overlook the fact that a judicial order passed by the Magistrate taking cognizance of the same offence which has been carried further before the High Court and when the High Court has also declined, it was carried further before the Hon’ble Apex Court which has not entertained the SLP. In other words, when the entire judicial process has approved of the decision rejecting the summary report filed by the police and cognizance for the alleged offence was taken by the Magistrate, the next step which should follow would be the trial by the competent court, and as could be seen from this, the said trial has not even started even after 21 years. Even though the order of the magistrate has been approved and accepted all throughout, it has remained ineffective for all practical purposes, and on top of that, when the revision application is withdrawn which would allow the trial to proceed, it is sought to be thwarted by the present petitioner in the name of bias and mala fides and rules of natural justice and/or taking away of accrued rights. As stated above, though the submissions have been made about accrued rights, the same is without any merits.

49. A useful reference can be made to the observations made by the Hon’ble Apex Court in a judgment in the case of Bhajan Lal [AIR 1992 SC 604] wherein similar contentions have been negatived and it has been quoted from the earlier judgment in the case of Sheonandan Paswan v. State of Bihar, reported in (1987) 1 SCC 288,

“It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.”

50. Similarly, the contention about the violation of principles of natural justice is also without any substance as the decision of the Government is a communication which is an administrative order. It does not require any kind of hearing to the accused that, when taking the decision even by the administration, the accused should be heard like in the present case. It is also required to be mentioned that as per the decision of the Government, when the purshis is submitted before the court seeking permission to withdraw the proceedings, hearing is granted by the court and the impugned order is passed after hearing all concerned including the advocate of the petitioner. Therefore, there is no substance in the argument about violation of the rules of natural justice.

51. Further, as rightly submitted by learned Public Prosecutor Mr. Jani referring to the doctrine of dominus litis, it is well accepted that when the party who takes up litigation, it is for him to decide who he should join as a party and how he should conduct and whether he should pursue the same or not. As the party has a right to move the court, in the same way, has a right to withdraw unless it is not permitted by the court for reasons to be recorded in writing.

52. In the facts of the present case, permission has been granted by the competent court after hearing all concerned. The party cannot be compelled to pursue the remedy particularly in such kind of litigation where competing rights of the victim as well as the accused are required to be considered and the State has to remain neutral. In the present case, the effect or the underlying object of this litigation or revision is that the trial of the sessions case may not proceed. The trial of Sessions Case No. 35 of 2001 for the alleged offence under sec. 302, etc. referring to the brutality of the police towards the victim – brother of the first informant/complainant based on the material and evidence which prima facie the Magistrate has found sufficient for the purpose of committal, cannot be permitted to be thrown out or scuttled at the threshold without trial. If that is permitted, it would amount to subverting the judicial process of trial and the conclusion having been arrived without appreciation of evidence by the competent court at the trial. In other words, without appreciation of evidence and the material at the trial when the competent court of magistrate has found prima facie material to issue the process and the same order has remained valid and approved by the higher courts, it has been sought to be negated by such litigation.

53. In such cases, the pronouncement of the Hon’ble Apex Court time and again referring to the brutality of the police and the right of the accused under Art. 21 are required to be considered. The Hon’ble Apex Court has dealt with the issue with regard to human right violations in police custody and detailed guidelines have been laid down in the case of D.K. Basu v. State of West Bengal, reported in (1997) 1 SCC 416 and thereafter even the National Human Rights Commission has issued guidelines for protection of human rights of the accused against any kind of ill-treatment. In this judgment, the Hon’ble Apex Court has considered, referring to the earlier judgment, with regard to the sovereign immunity and in subsequent judgments also, referring to the provisions of sec. 161 of the Bombay Police Act, it has been considered referring to the colourable exercise of duty. The Hon’ble Apex Court in a judgment in the case of State of A.P. v. N. Venugopal, reported in AIR 1964 SC 33, has made the observations which are required to be considered.

54. In the case of Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746, the observations have been made as under:

“Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.”

Lord Denning has been quoted with regard to the approach to be adopted.

55. It is in these circumstances the challenge to the withdrawal of revision application cannot be entertained in the present petition by which the trial of Sessions Case No. 35 of 2001, that is, the judicial process, is sought to be stalled by the accused by raising some technical contentions under sec. 197 of CrPC or the contentions about mala fides.

56. The reliance placed by learned counsel Mr. Syed on the judgment in the case of Mohinder Singh Gill and anr. (supra) is not applicable to the facts of the case as there, the order was by the Election Commission and observation has been made. Similarly, the judgment reported in the case of Kranti Associates Private Limited and anr. (supra) and the judgment in the case of Zenit Mataplast Private Limited (supra) referring to the aspect of the rules of natural justice and scope of judicial review would not have any application as these judgments refer to the aspect of bias in the order passed by the authority, whereas the facts of the present case are with regard to culpability or the process of criminal justice where the judicial order by the Magistrate has been passed taking cognizance of the offence. Therefore, it will not have any application.

57. Further, the submission made by learned counsel Mr. Syed that because the petitioner had taken a stand which is not convenient to the Government or the Chief Minister by deposing before the commission or authority or the court, the decision for withdrawal of the revision application is taken mala fide is devoid of any merits. Assuming that the petitioner has given the deposition in other matters it may have its own consequences, but it cannot be a ground for any excuse in a judicial process against the accused and the transactions which have nothing to do with subsequent events. Further, the action taken which led to death of the victim in the custody is a matter of examination or scrutiny of the evidence at the trial where such defence could be considered with reference to the detailed analysis of evidence including the medical evidence, but the said defence cannot be accepted at this stage without the judicial process of trial being undertaken, in exercise of the inherent power under sec. 482 of CrPC.

58. It is well-accepted that the scope of exercise of discretion under sec. 482 of CrPC or even the extra-ordinary jurisdiction under Arts. 226 and 227 of the Constitution of India is very limited and it has to be exercised with care and circumspection. The Hon’ble Apex Court in the judgments reported in Central Bureau of Investigation v. K.M. Sharan, reported in (2008) 4 SCC 471, as well as in the case of Som Mittal v. Government of Karnataka, reported in AIR 2008 SC 1528, has clearly laid down guidelines that it has to be exercised only in the circumstances which justify the exercise of such discretion. In the facts of the present case, as discussed above, there are no such circumstances which would call for exercise of such discretion.

59. The provisions of sec. 161 of the Bombay Police Act has to be considered in light of the guidelines issued by the National Human Rights Commission and the issue involved. It is required to be mentioned that much water has flown while considering the rights of the accused and the abuse of power by the police tested on Art. 21 and human rights. There have been observations with regard to whether the act done is under the colour of duty or not.

60. Therefore, there is no reason to entertain the present petition in exercise of discretion under sec. 226 and 227 of the Constitution of India or under sec. 482 of CrPC and the present petition deserves to be rejected and accordingly stands rejected. Interim relief, if any, shall stand vacated. Rule is discharged.

(Rajesh H. Shukla, J.)

FURTHER ORDER

61. After the order was pronounced, a request is made on behalf of the petitioner by learned advocate Mr. Hriday Buch that the interim relief regarding postponement of framing of the charge in Sessions Case No. 35 of 2001 may continue for three weeks to enable the petitioner to approach the Hon’ble Apex Court.

62. Learned Sr. Counsel Mr. Kavina for the respondent No.2 complainant has serious objection and he has tried to draw the attention of the court that he does not deserve any indulgence reflecting about the conduct of the petitioner and specifically stating that the affidavit is tendered at the last date and it is only to publicise the same in newspapers before the court could consider.

63. Learned APP Mr. HL Jani appearing with learned Public Prosecutor Mr. PK Jani has also serious objection for extension of any relief contending that the matter should take its own course. It will be open for the petitioner to approach the higher forum.

64. Be that as it may, in the facts and circumstances, the request made by learned advocate Mr. Buch for the petitioner is granted, though I am conscious of the fact that postponement of framing of the charge would amount to further delay of the proceedings. However, in the interest of justice, since such a long time has passed, it would be in fitness of things if the petitioner is also given a fair opportunity to approach the Hon’ble Apex Court. Therefore, the interim relief regarding postponement of framing of the charge in Sessions Case No. 35 of 2001 shall continue till 8.11.2011.