1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 17 OF 2009 Shri Virendra Pandurang Marathe, Hindu, aged 43 years, occupation spiritual Practice, residing at Sanatan Ashram, Ramnathi, Ponda Goa. .... Petitioner V e r s u s 1. The State of Goa, 2. Shri Dattatray G. Kurne, Police Sub-Inspector, Police Control Room, Kolhapur District Head Quarters, Kolhapur, Dist. Kolhapur ( Maharashtra) 3. Shri Nandkumar R. Kolekar, Head Constable, Buckle No. 893, Miraj Gramin Police Station, Pandharpur Road, Miraj, Tal. Miraj, Dist. Sangli, (Maharashtra) 4. Shri Vinod S. Salunkhe, Constable Buckle No.79, Miraj City Police Station, Miraj, Tal. Miraj, Dist. Sangli, (Maharashtra). ... Respondents Mr. R. D. Kesarkar, Advocate for the Petitioner. Ms. W. Coutinho, Public Prosecutor for the Respondent No.1. Mr. R. Menezes, Advocate for the Respondent no.2 to 4. 2 Coram :- N. A. BRITTO, J. Date :- 5 th October, 2009. ORAL JUDGMENT : 1. This petition is directed against the order dated 6.12.2008 of the learned Additional Sessions Judge, Panaji Goa, upholding the order dated 13.5.2008 of the learned Magistrate ( J.M.F.C.), Ponda, refusing to issue process against the respondents – accused under Sections 166, 340, 348, 350 r/w 34 of the Indian Penal Code. 2. There is no dispute that the respondent no.2 is a Police Sub Inspector attached to Miraj Police Station in the State of Maharashtra, who came down to Goa in connection with investigation of Crime No. 197/2005 of that Police Station registered at the instance of one Advocate Shaikh under Section 153(a), 153(b) and 295(a) Indian Penal Code. Respondent no.3 is a Head Constable and respondent no.4 is a Constable who had accompanied the said Police Sub Inspector. 3. In connection with the said investigation the respondent no.2/PSI accompanied by the officers of Ponda Police Station went to Sanatan Ashram 3 situated at Ramnathi, Ponda Goa, on 6.11.2005 and the complainant was brought to the Ponda Police Station to record his statement in connection with the said crime and subsequently was taken to Miraj City Police Station and after recording his statement the petitioner/complainant was allowed to go. 4. On the same day, the wife of complainant filed a police complaint at Ponda Police Station. Thereafter, the complainant himself filed a police complaint on 29.11.2005 and as no action was taken by the police, he filed a complaint before the learned Magistrate on 31.1.2006. 5. The learned Magistrate did not examine the complainant as required under law but allowed the said examination to be conducted by the Advocate of the complainant. By now there are several decisions of this Court particularly the case of Lance Irwin Lobo ( 2007(1) Bom. C. R. (Cri.) 680 to say that the duty to examine the complainant on oath under Section 200 Cr. P.C is that of the Magistrate and that cannot be abdicated in favour of the Advocate of the complainant. The statement on oath of the complainant therefore, is almost a verbatim reproduction of the complaint. It was stated by this Court in the above case that :- “The recording of the statement on oath of the complainant under Section 200 Cr. P.C., is not an empty formality. Commonly it is nicknamed as verification. To 4 verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the accused persons are responsible therefor.” 6. Be that as it may, after the complainant was examined, and his wife as his witness, the learned Magistrate refused to issue the process against the accused which order has now been confirmed by the learned Additional Sessions Judge, Panaji. 7. The case of the complainant, as can be seen from the complaint is that on 6.11.2005 the complainant along with his wife Vrunda were performing religious services in the Sanatan Ashram at Ramnathi Ponda Goa, when at about 12.00 noon a squad of police officers headed by accused no.1 along with police officers of Ponda Police Station came in the said Ashram and the accused no.1/PSI inquired about Mr. Hajare, Editor of the daily 'Sanatan Prabhat' and the complainant told the accused no.1 that Mr. Hajare has left for Miraj in connection with the offence registered against the said daily 'Sanatan Prabhat' in 5 Miraj Police Station. Whereupon, the accused no.1/PSI told the complainant that he had came from Miraj Police Station and he was to record the statement of the complainant in connection with the offence registered against the Editor of the said daily 'Sanatan Prabhat'. 8. Further, it was the case of the complainant that the complainant told the accused no.1 that he was in no way concerned with the alleged offences and inspite of that, if at all the accused no.1/PSI wanted to record his statement, he could record it there in the Ashram itself. But accused no.1/PSI however did not listen to the complainant's request and forced him to accompany him to Ponda Police Station and told that he would record the statement of the complainant at Ponda Police Station in the presence of the Ponda Police Station and therefore he (PSI) had brought the police officers of Ponda Police Station with him, and believing the words of the accused no.1/PSI who made the complainant to travel to Ponda Police Station in Goa Police Vehicle, as if the complainant was a criminal along with the squad of police officers. It was the case of the complainant that on reaching Ponda Police Station, he again requested the accused no.1/PSI to record his statement and allow him to go back to Ashram but the accused no.1/PSI did not allow the complainant to speak anything and accused no.1/PSI with the help of accused nos. 2 and 3 put the complainant in a private Maruti car bearing registration No. MH-10-E-5507 and 6 virtually kidnapped the complainant in the said car and took the complainant to Miraj City Police Station, Miraj, against the will of the complainant and treated the complainant as a criminal during journey from Ponda, Goa to Miraj. The complainant further stated that before the accused nos. 1 to 3 forcibly put him in the said car, complainant told the accused no.1/PSI that if at all he was determined to take him to Miraj for recording statement, the complainant was prepared to come to Miraj Police Station by public transport and was not willing to travel in the private car brought by him. But accused no.1/PSI however turned down the request of the complainant and forced the complainant to travel in the said Maruti car brought by him, putting the life of the complainant to risk. The accused no.1/PSI made the complainant to sit in the said car in such a manner that as if the complainant was a criminal and subjected him to mental and physical torture. The complainant further stated that from the dialogues between the accused and the driver of the said vehicle, he came to know that the driver of the said car was a Muslim person and he was driving the said car rashly and negligently without any regard to the rules and regulations of the traffic on road. The complainant further stated that on reaching Miraj City Police Station at night, the complainant once again requested the accused no.1/PSI to at least record his statement and then allow him to go back to Ponda Goa, but accused no.1 refused to do so and told the complainant that he will not record the statement on that day but would record the statement on the next day, and 7 accordingly the statement of the complainant was recorded on the next day and the complainant was allowed to go back to Ponda, Goa. 9. The Counsel on behalf of the complainant submits that a charge sheet arising from Crime No. 197/2005 has already been filed, and is awaiting framing charge against the accused. Counsel further submits that the statement of the complainant does not form a part of the said charge sheet. 10. The learned Magistrate ( J.M.F.C.) in refusing to issue process against the accused, ( Respondents No. 2 to 4 herein ) came to the conclusion that the complainant was taken to Miraj City Police Station for the purpose of investigation but the provisions of Section 166 of IPC were not attracted because there was no disobedience of law, much less was there an intent to cause any injury to the complainant. The learned Magistrate further held that there was also no case made out to say that the complainant was wrongfully confined, as defined under Section 340 of IPC and similarly there was no offence made out under Section 348 IPC. The learned Magistrate noted that it was the case of the complainant himself that upon reaching Miraj at night, the police told the complainant that they would record the statement on the next day morning and it was done so and the complainant was free to go back to Goa, and thus there was no offence made out under Section 350 of IPC. The learned Magistrate further 8 held that only because the complainant was taken by the police for the purpose of investigation, it cannot be said that there was criminal force used. As to the contention of the complainant that his life was put to risk while travelling in a Maruti car which was driven rashly and negligently without any regard to the rules and regulations of the traffic on the road, the learned Magistrate noted that the main grievance of the complainant was that a private car was used and the said car was belonged to muslim person and it was not the case of the complainant that any accident took place or that they did not reach to Miraj, safely. The learned Magistrate further noted that assuming that there was any misconduct on the part of the police in using a private car, in his view, the case of the complainant would not come under the purview of Section 166 of IPC. The learned Magistrate further observed that if at all the complainant was aggrieved that there was any misconduct on the part of the said police officers, then the complainant was at liberty to exercise his remedy available to him under the law. Finding that there was no merit in the complaint and learned Magistrate proceeded to dismiss the same. 11. The learned Additional Sessions Judge, in dismissing the revision inter alia, noted that the complainant had not spelled out as to how he was subjected to mental and physical torture by the accused persons except the fact that he was taken in a private car, driven by a muslim person for recording his statement and 9 in case the said muslim driver was driving the vehicle rashly and negligently on the road, the learned Additional Sessions Judge, furher observed that driving of the said car by a muslim man does not amount to mental and physical torture in as much as the said driver was also not prosecuted for driving the said car rashly and negligently and besides there were policemen in the said car. 12. Section 166 of IPC states that “whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”. 13. Shri Kesarkar, learned Counsel on behalf of the Petitioner/complainant referring to Section 166 of IPC submits that the accused disobeyed the directions of law given in Section 160 of the Code ( Code of Criminal Procedure, 1973 ) as no notice was served on the complainant for the purpose of recording his statement. Learned Counsel further points out that the accused no.2 and 3 were in uniform at that time and had accompanied the accused no.1/PSI who was required to give notice. Learned Counsel further submits that injury contemplated under Section 166 of IPC could be either physical or mental i.e. in 10 body, mind, reputation or property, as defined under Section 44 of IPC. Referring to Section 340 and 348 of IPC, learned Counsel submits that the complainant was wrongfully confined because he was put in the vehicle against his will. Referring to Section 350 of IPC, learned Counsel submits that Section is punishable under Section 352 of IPC and the fact that the force was used against the complainant, as stated in the complaint, the accused committed an offence under Section 350 r/w 352 of IPC. Learned Counsel submits, that both the Courts below have not considered the facts and law applicable thereto in proper prospective. Learned Counsel further submits that at this stage the defence of the accused would be immaterial and that would be a matter which is required to be considered at the trial. As regards the accused nos.2 and 3 i.e. Head Constable and Constable having committed the aforesaid offences, the learned Counsel submits that they also helped the accused no.1, and committed the said offences. Learned Counsel has placed reliance on the case of Chandra Deo Singh V/s Prokash Chandra Bos alias Chabi Bose and another ( AIR 1963 SC 1430) wherein it is stated that :- “For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. As stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the 11 truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at his instance.” 14. Learned Counsel has also placed reliance on the case of Nirmaljit Singh Hoon V/s The State of West Bengal and others ( AIR 1972 SC 2639) wherein the Apex Court has interpreted the words “sufficient ground for proceeding” used in Sections 203 and 209 to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and do not mean sufficient ground for the purpose of conviction. The test is whether there was sufficient ground for proceeding and not whether there is sufficient ground for conviction, and where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case and in a revision against such a refusal, the High Court also has to apply the same test. 12 15. Learned Public Prosecutor appearing on behalf of the Respondent no.1/State submits that the police officers of Ponda Police Station only lent assistance to respondent no.2/PSI by accompanying him for the purpose of investigation of Crime No. 197/2005 registered at Miraj City Police Station. 16. Shri Menezes, the learned Counsel appearing on behalf of the Respondent nos. 2 to 4 (accused ) firstly, submits that Section 160 of the Code gives no direction to the police officer but it is only empowering Section and if there is at all any direction or mandate in that section, if it is for the witness whose statement is required to be recorded and not to the police officer who desires to record the statement. Learned Counsel further submits that if at all the complainant was taken to Miraj Police Station for recording his statement he was taken in the comfort of a private car and no sooner his statement was recorded he was allowed to go. Learned Counsel, referring to Section 339 of IPC submits that it is not the case of the complainant that he was wrongfully restrained and that would have been an essential element in case the complainant wanted to set out a case either under Section 341 or Section 348 of IPC but that was not the case of the complainant that he was ever wrongfully restrained by the accused. Learned Counsel further submits that the complainant was taken only for the purpose of recording his statement and at no stage there was wrongful confinement of the complainant. Learned Counsel further submits 13 that a citizen has duty to co-operate with the investigation in a case registered against the accused persons. Learned Counsel further submits that nature of force used was also not spelt out by the complainant. Learned Counsel further submits that it is not the case of the complainant that at any stage he has refused to come either to Ponda Police Station or thereafter to go along with the PSI to Miraj Police Station in the said private car. Learned Counsel further submits that the complainant did not allege in the complaint as to what is the nature of the injury alleged to have been caused to him or could have been caused to him. The learned Counsel has placed reliance on the case of Union of India V/s Prafulla Kumar Samal and another ( AIR 1979 SC 366) wherein the Apex Court has observed that :- “The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.” 17. Reliance is also placed on Roshanlal V. Keny V/s State of Goa ( 2002 ALL MR (Cri) 664 ) wherein it was observed that :- “Unless there is some material in the charge sheet which would prima facie disclose the commission of the offence, it would be a travesty of justice to ask the accused to face the rigours of trial to be ultimately acquitted by the Court for want of evidence. While 14 evaluating the material against the accused, the Court is not to make a detailed roving enquiry and appreciate the material against the accused. What the Court has to see is, if the material comprising of statements and documents, taken at their face value, raises grave suspicion against the accused. If the material thus raised grave suspicion or strong suspicion against the accused, the accused is not entitled to be discharged. If, however, the material raises only suspicion against the accused, the accused is entitled to be discharged.” 18. Reliance is also placed on Zandu Pharmaceutical Works Ltd. and another V/s Mohd. Sharaful Haque and another [( 2005) 1 SCC 122 ] wherein the Apex Court has stated that :- “Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.” 19. There is no dispute that the respondent no.2/PSI had come in connection with investigation of Crime No. 197/2005 registered at his Police Station at the behest of one advocate Shaikh in which editor of Sanatan Prabhat was involved and who was residing at the relevant time at Sanatan Ashram of which the complainant is a follower and was at the relevant time doing his religious 15 services. There is also no dispute that the respondent no.3 is a Head Constable and respondent no.4 is a Constable and were accompanying the said accused no.1/PSI. The first question is as to what offences the said Head Constable and said Constable, namely the respondent nos. 3 and 4 have committed against the complainant ? 20. On behalf of the complainant, it is submitted that they acted in common intention with accused no.1/PSI. The only allegation against them as can be seen from the complaint/and or statement on oath that the “accused no.1 with the help of accused nos. 2 and 3 put the complainant in a private car” and “the accused nos.1, 2 and 3 forcibly put him in the said car”. Besides that there is no other allegation against the said respondents no. 3 and 4 ( i.e. to say accused nos. 2 and 3 ). In fact there is no allegation as to how either of them applied force to the complainant nor there is any allegation to any overt acts committed by the said accused nos. 3 and 4 against the complainant. In the absence of such allegations in my opinion on a bare statement that the complainant was forcibly put in a car would not be sufficient to issue process against the said accused under Section 350/352 of IPC which have also not been invoked. Suffice it to observe that, the complaint is vague as against them and in such a vague complaint no process could have been issued against the said Head Constable and Constable who had only accompanied the respondent nos. 2/PSI in 16 connection with the investigation of the said Crime No. 197/2005. 21. Section 166 of IPC deals with public servants disobeying law, with an intent to cause injury to any person etc. It provides that whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. The emphasis is on disobedience of law and according to the learned Counsel the law which has been disobeyed is Section 160 of the Code. Section 160 deals with police officer's power to require attendance of witnesses and provides that any police officer making any investigation under Chapter XII may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station, etc. to attend the police station. As rightly pointed out on behalf of the accused, the provisions of Section 160 only empowers the police officer to require attendance before him of any person who is acquainted with the facts of a