SCR.A/288/2008 1/26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 288 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT - Applicant(s) Versus SHANKARBHAI TRIKAMBHAI VASAVA - Respondent(s) ========================================= Appearance : MR UA TRIVEDI, SPECIAL PUBLIC PROSECUTOR for Petitioner MR GIRISH PATEL, SR. ADVOCATE with MR JOY MATHEW for Respondent ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/02/2008 ORAL JUDGMENT 1. Rule. Mr.Joy Mathew, learned advocate waives service of SCR.A/288/2008 2/26 JUDGMENT notice of rule on behalf of the respondent. 2. Having regard to the facts of the case and the nature of the dispute in question, by consent of the learned advocates for the parties, the matter was taken up for final hearing. 3. By this petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioner – State of Gujarat seeks the following substantive relief : “[10] The petitioner, therefore, prays that :- (A) Your Lordships may be pleased to issue a writ of certiorari or an order in the nature of writ of certiorari or by invoking the inherent jurisdiction u/s 482 of the Constitution of India (Code of Criminal Procedure, 1973) by quashing and setting aside the order passed by the learned Chief Judicial Magistrate, Rajpipla, dated 13/02/2008 on an application preferred by the respondent herein (i) directing the re-postmortem of the dead body of deceased Balkabhai Trikambhai Vasava and (ii) directing the presence of a representative of the respondent to remain present during the re- postmortem.” 4. The facts of the case, as stated in the petition, are that, in connection with a case registered as Garudeshwar Police Station Cr.R. No. I – 7/2008 lodged on 6th February, 2008, SCR.A/288/2008 3/26 JUDGMENT one Balkabhai Trikambhai Vasava and two other accused, viz. Trikambhai Bagnabhai Vasava and Movariyabhai Balkabhai Vasava, came to be arrested by the investigating authority on 8th February, 2008. According to the petitioner, all the three accused were produced before the learned Judicial Magistrate First Class, Dediapada, since the learned Chief Judicial Magistrate was on leave and the charge was with the learned Judicial Magistrate First Class, Dediapada. The investigating authority had applied for police custody remand of the three accused which was granted by the learned Magistrate upto 5.00 p.m. on 12th February, 2008. However, on 12th February, 2008, during the early morning hours, Balkabhai Vasava committed suicide while he was in a room maintained as a lock-up in the Police Station. After the suicide was reported, the learned Sub Divisional Magistrate, Rajpipla was summoned immediately and he held inquest on the dead body and the whole process of postmortem was videographed. The dead body was brought down in the presence of the Sub Divisional Magistrate, Rajpipla. The inquest report was witnessed by two independent persons of the nearby locality as envisaged under Section 174 of the Code. Though the apparent cause of death appeared to be suicide, with a view to ascertain the real cause of death, the Sub Divisional Magistrate, Rajpipla sent the dead body to the Civil Hospital, Rajpipla for postmortem, where the postmortem examination was conducted by a panel of three doctors who are Class-I Gazetted Officers of the State of Gujarat. The whole process of postmortem was also videographed. SCR.A/288/2008 4/26 JUDGMENT 5. On completion of remand, the other two accused were produced before the learned Chief Judicial Magistrate, Rajpipla and were sent to judicial custody where they requested the learned Chief Judicial Magistrate to permit them to remain present for the cremation of deceased Balkabhai Vasava. The learned Chief Judicial Magistrate, Rajpipla passed an order permitting both the accused to attend the cremation of the deceased Balkabhai Vasava under police escort for twelve hours at the cost of the State. 6. The respondent thereafter moved an application dated 13th February, 2008, praying that the dead body of his deceased brother Balkabhai be sent for forensic examination and that the postmortem be carried out again and that, his brother and nephew, by an interim order, be removed from police custody, and be, at the first instance, produced before the Court and that the applicant and his advocate be permitted to meet them and ask them necessary questions and till that time, the police should not handover the custody of the dead body of the deceased or cremate the same. 7. Pursuant to the said application, the learned Chief Judicial Magistrate, Rajpipla, by an order dated 13th February, 2008, initially passed an order in Gujarati language in the following terms: “By this application, the applicants have prayed for forensic examination as well as re-postmortem of SCR.A/288/2008 5/26 JUDGMENT the dead body. The applicants have also sought for direction to the effect that the accused be produced before the Court and the advocate of the applicants be permitted to meet them and ask them questions. The applicants have alleged custodial death against the police, hence, the following order is passed : The accused be produced before the Court immediately for the purpose of meeting their advocate and for enabling them to ask them questions. Moreover, the cremation of the dead body be not carried out immediately and the opponents are directed to keep the body in the cold room for the purpose of forensic examination. Yadi be issued to the police immediately.” 8. Subsequently, another order dated 13th February, 2008 was passed on the application in the following terms: “As regards the forensic examination of the dead body, heard learned advocate Shri Purohit. Shri Purohit has urged that the postmortem had been carried out by the panel doctors of Rajpipla Civil Hospital, in the circumstances, the forensic examination of the dead body be carried out at the neighbouring Civil Hospital. SCR.A/288/2008 6/26 JUDGMENT At this stage, keeping in view the order No.100/08 dated 13.2.2008 of the Deputy Police Superintendent, Kevadia Division, Kevadia, it would be just and proper to pass urgent orders. Accordingly, the following order is passed. It is ordered that the forensic examination by re- postmortem of the dead body of deceased Balkabhai Trikambhai Vasava be carried out through Panel Doctors of the SSG Hospital, Vadodara. Additionally, it is ordered that re-postmortem be conducted in the presence of such person as may be appointed by a representative of the deceased.” 9. Being aggrieved by the aforesaid order dated 13th February, 2008 passed by the learned Chief Judicial Magistrate, Rajpipla, the petitioner – State of Gujarat has preferred the present petition. 10.Heard Mr.U.A.Trivedi, learned Special Public Prosecutor on behalf of the petitioner – State of Gujarat and Mr.Girish Patel, learned Senior Advocate with Mr.Joy Mathew, learned advocate for the respondent. 11.Mr.U.A.Trivedi, learned Special Public Prosecutor has vehemently assailed the impugned order. It is submitted that the order passed by the learned Chief Judicial Magistrate is without any authority of law inasmuch as the learned Chief Judicial Magistrate has no power or SCR.A/288/2008 7/26 JUDGMENT authority to direct re-postmortem, and in any case, to permit a third party to remain present during the course of postmortem examination. It is submitted that the order of the learned Chief Judicial Magistrate to the extent it permits a representative of the respondent to remain present during the course of re-postmortem is beyond the scope of the application. Referring to the contents of the application, it is pointed out that no relief has been claimed to permit a representative of the respondent to remain present during the course of re- postmortem. It is further submitted that, apart from the fact that, no such relief has been claimed for in the application, the learned Chief Judicial Magistrate has not assigned any reasons as to why such an order was required to be passed. 12.On the other hand, Mr.Girish Patel, learned Senior Advocate with Mr.Joy Mathew, learned advocate for the respondent has submitted that, there is nothing so fundamentally wrong with the order passed by the learned Chief Judicial Magistrate nor was there any basic error of law so as to necessitate the petitioner – State of Gujarat to rush to this Court. Mr.Patel has raised a preliminary objection as regards the maintainability of the petition on various counts. Firstly, on the ground that the State cannot invoke Article 226 of the Constitution of India as Article 226 can be invoked against the State and not by the State; secondly, there is nothing to show as to whose right has been violated? Thirdly, as to which right is violated. Fourthly, whenever any person approaches this Court under Article 226, the person or authority that SCR.A/288/2008 8/26 JUDGMENT has passed the order should be impleaded as a party; whereas in the present case, the learned Chief Judicial Magistrate whose order is subject matter of challenge has not been impleaded as a party; and fifthly, because the order passed under Section 176 of the Code, is a judicial order and no judicial order can be challenged under Article 226 of the Constitution of India as there are other remedies open to the petitioner. 13.The next ground for challenging the maintainability of the petition is that, under the provisions of Section 482 of the Code, the Court has to look to the order passed by the learned Chief Judicial Magistrate and has to come to the conclusion that it is necessary to interfere with the said order with a view to prevent abuse of the process of court or otherwise to secure the ends of justice. It is urged that whereas the impugned order does not harm or cause prejudice to anyone, it on the contrary aims at bringing in transparency into the entire cause. It is urged that if the learned Chief Judicial Magistrate is guided by consideration of justice no injustice can be said to have been caused. On the contrary, it would inspire confidence in the system. It is submitted that the petition should not be entertained as no fundamental or basic illegality is pointed out. It is urged that the impugned order has been passed in furtherance of ascertaining the truth in criminal matters which requires to be encouraged. It is contended that there is no gross failure or miscarriage of justice, hence, this Court may not exercise powers under Section 482 of the Code. It is submitted that the principles guiding criminal justice are SCR.A/288/2008 9/26 JUDGMENT (i) to find out the truth; (ii) justice to both the parties; (iii) question of human rights; (iv) legal position, inasmuch as there is no express bar against passing such type of order; (v) justice and truth call for such type of order. 14.It is further submitted that the direction issued vide the impugned order flows from the powers of the learned Chief Judicial Magistrate. It is submitted that, under Section 176 of the Code, and more particularly, under sub-section (1A) thereof, a duty is cast upon the learned Judicial Magistrate to inquire or investigate in a case where a person dies in the custody of the police. Hence, any order passed by the Magistrate in this regard is an order passed within his jurisdiction. Alternatively, it is submitted that three persons were arrested and produced before the Court, the Court was, therefore, seized with the matter. Therefore, when one of the three persons had died under suspicious circumstances, it was well within the jurisdiction of the learned Chief Judicial Magistrate to pass such an order in the interest of justice. Alternatively, it is also submitted that the application had been made before the learned Chief Judicial Magistrate by the brother of the deceased on oath. Prior to examining the complainant on oath, it was permissible for the learned Chief Judicial Magistrate to pass such an order where the exigency of the case so requires. 15.It is next contended that the order passed by the learned Chief Judicial Magistrate is a composite order which cannot be dissected. In the circumstances, the petitioner could not have carried out re-postmortem in absence of a SCR.A/288/2008 10/26 JUDGMENT representative of the respondent. It is further submitted that there is no illegality in the impugned order, which has been passed after hearing the complainant and his advocate. It is contended that though the Code of Criminal Procedure does not explicitly provide for passing such an order, at the same time neither does it explicitly prohibit passing such orders, in absence of which the Court should lean in favour of justice and truth. It is submitted that even if the order is illegal, it is not necessary that the Court should strike it down if justice requires otherwise. Reliance is placed upon a decision of this Court in the case of Saurashtra Paper And Board Mills Pvt. Ltd., Rajkot v. State of Gujarat and another, (1992)2 GLR 871, to submit that it is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder, can refuse to upset it with a view to doing substantial justice between the parties. 16.The learned Senior Advocate has further submitted that while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, or Section 482 of the Code, this Court should also look to the conduct of the petitioner. It is submitted that this being a case of custodial death, it would be governed by the provisions of Section 176 of the Code. Referring to the provisions of Section 176 of the Code, it is submitted that, under the said provision, the relatives of the deceased should be SCR.A/288/2008 11/26 JUDGMENT informed, however, there was no compliance with the said provision. It is further submitted that the petitioner is a Medical Officer and when he has challenged the impugned order, it is evident that there is a conflict of duty and interest. In the circumstances, he should have stayed his hands till the next date of hearing of the petition if he was aggrieved by the order, and that the petitioner should not have conducted the re-postmortem examination, without waiting for the next date of hearing. It is pointed out that the aggrieved person himself has carried out the postmortem examination, to submit that the petitioner should have refrained from carrying out the postmortem examination for preserving the dignity of the profession. It is submitted that, experts are to be judged and evaluated by the Court, and when the question of credibility of the system arises, personal extra sensitivity may not matter. It is, accordingly, urged that the impugned order should be fully sustained as it tends to improve the system towards better justice. 17.In conclusion, it was submitted that cases of custodial violence are on the increase and that, the guidelines issued by the Supreme Court are not being followed. It is submitted that there should be a will to implement the provisions. It is submitted that, by inserting provisions of Section 176(1A), the Legislature has taken extra care in the case of death during police custody, and as such, greater caution is required while conducting the postmortem examination in such cases. It is accordingly submitted that the order passed by the learned Chief Judicial Magistrate aims at improving the system in SCR.A/288/2008 12/26 JUDGMENT extreme cases of violence and therefore, should not be interfered with. 18.In rejoinder, Mr.Trivedi, learned Special Public Prosecutor has taken the Court through the provisions of Section 174 and Section 176(1A) of the Code. It is pointed out that it is only in those cases wherein the Magistrate exercises suo motu powers that the relatives are required to be informed. It is submitted that, in any case, as in the present case, the death of the deceased has taken place in the presence of two close relatives, viz. his father and his son, there was no question of informing any relatives. It is pointed out that, in any case, the relatives have been permitted to remain present during the inquiry. On facts, it is submitted that the accused were arrested on 8th February, 2008 and were produced before the learned Chief Judicial Magistrate on 9th February, 2008. That though it is the case of the respondent that even while effecting arrest, they were severely beaten, no complaint is made in that regard to the learned Magistrate. That, during the course of remand, the accused are required to be produced before the Medical Officer for examination at every interval of 48 hours, which has been duly followed. That the interview by relatives is also permissible, however, at no point of time, any grievance has been raised at the relevant time. It is submitted that the present application is not a bonafide application which has been made with an oblique purpose of creating evidence. It is urged that, in a case of custodial death, it is necessary that due inquiry be carried out, but no party should be given liberty to create its own case. SCR.A/288/2008 13/26 JUDGMENT 19.Answering to the contention that no harm or prejudice could be caused to anyone by complying with the impugned order, it is urged that, during the course of postmortem examination, except the expert doctors, no one else is permitted to remain present. Imposition of the presence of an outsider, while an expert is doing his job, would cause undue humiliation to the expert as the same would indicate lack of faith as well as doubt towards his integrity. As regards the contention regarding transparency of the proceeding, it is submitted that, independent persons have examined the dead body, no suspicion has been raised nor has any allegation been levelled against them, but it appears that, it is merely upon the insistence of the learned advocate for the respondent that such an order has been passed. As regards the contention that as the petitioner himself has challenged the impugned order, there is conflict of duty and interest, it is submitted that the challenge to the impugned order is made by the State Government and not by the concerned doctor in his individual capacity. Referring to the provisions of Section 174 of the Code, it is pointed out that when an officer-in-charge of a police station or some other police officer specially empowered by the Government in that behalf receives an information that a person has committed suicide, he is immediately required to give intimation thereof to the nearest Executive Magistrate empowered to hold inquest. It is submitted that the provisions of sub-section (1) of Section 174 of the Code have been duly complied with. It is further pointed out that, under sub-section (5) of Section SCR.A/288/2008 14/26 JUDGMENT 174, when the Police Officer for any reason considers it expedient to do so, he shall, subject to such rules, as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government. It is submitted that the said provision does not envisage the presence of a third party during the course of conducting the postmortem examination and as such, presence of an outsider is not permissible under law. It is further submitted that is not permissible to disclose the result of the postmortem examination till the chargesheet is submitted. However, if an outsider is introduced to this process, the result would be known to other persons which is not permissible under the provisions of law. It is submitted that permitting a representative of the respondent to remain present would also prejudicially affect the right of the accused. It is contended that the order passed by the learned Chief Judicial Magistrate is bad in law as the same is against the scheme of the Code, insofar as it orders that a person nominated by a representative of the deceased be permitted to remain present while conducting the re-postmortem examination and can, therefore, be corrected by this Court while exercising powers under Section 482 of the Code. 20.Mr.Patel, learned Senior Advocate has drawn attention of the Court to the averments made in the application to point out that the petitioner had access to the First Information Report and that, the petitioner also agrees that it is a case of suicide, hence, there is likelihood of SCR.A/288/2008 15/26 JUDGMENT bias in the conduct of the re-postmortem. 21.This Court has considered the submissions advanced by the learned advocates for the parties and has also perused the record of the case. 22.Considering the fact that a preliminary objection has been raised as regards the very maintainability of the petition, it would firstly be necessary to deal with the same. By this petition the petitioner has invoked the powers of this Court both in its extraordinary jurisdiction under Article 226 of the Constitution of India as well as inherent jurisdiction under section 482 of the Code. As regards the maintainability of a petition under Article 226 of the Constitution, it would be pertinent to refer to the decision of the Supreme Court in the case of Surya Devi Rai v. Ram Chander Rai (2003)6 SCC 675 wherein it has been held thus: “(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. SCR.A/288/2008 16/26 JUDGMENT (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.” 23.Applying the principles laid down in the aforesaid decision to the facts of the present case, considering the fact that order passed by the learned Magistrate is challenged on the ground that he has exceeded his jurisdiction, inasmuch as he had issued directions which are beyond the scope of his power or authority, it cannot be said that a petition under Article 226 of the Constitution would not be maintainable. Besides the petitioner has also invoked the inherent jurisdiction of this SCR.A/288/2008 17/26 JUDGMENT Court under section 482 of the Code. While dealing with the scope of powers under section 482 of the Code, the Supreme Court in the case of State of Orissa v. Saroj Kumar Sahoo, (2005)13 SCC 540, held thus - “8.