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Police cannot call accuse to question or inquiry in Police Station

Section 160 Cr.P.C. applies to Witness and not to Accused

 

 

 

 

2004 AIR 2282, 2004(2   )Suppl.SCR71  , 2004(5   )SCC729 , 2004(5   )

 

CASE NO.:

 

Appeal (crl.)  575-576 of 2004

 

 

PETITIONER:

 

State Rep. by Inspector of Police & Ors.

 

 

RESPONDENT:

 

N.M.T. Joy Immaculate

 

 

DATE OF JUDGMENT: 05/05/2004

 

 

BENCH:

 

Dr. AR. Lakshmanan.

 

 

JUDGMENT:

 

J U D G M E N T

 

 

(Arising out of S.L.P.(Crl.) Nos. 3143-3144 of  2002)

 

 

Dr. AR. Lakshmanan, J.

 

 

I have had the privilege of perusing the judgment proposed by my learned

 

brother Hon’ble Mr. Justice G.P. Mathur.  I respectfully agree with the opinion

 

expressed by him.  However, I would like to add the following few lines.

 

 

Section 160 of the Code of Criminal Procedure deals with police officer’s power

 

to require attendance of witnesses.  This Section aims at securing the attendance of

 

persons who would supply the necessary information in respect of the commission of

 

an offence and would be examined as witnesses in the inquiry or trial therefor.  This

 

Section applies only to the cases of persons who appear to be acquainted with the

 

circumstances of the case, i.e. the witnesses or possible witnesses only.  An order

 

under this Section cannot be made requiring the attendance of an accused person with

 

a view to his answering the charge made against him.  The intention of the legislature

 

seems to have been only to provide a facility for obtaining evidence and not for

 

procuring the attendance of the accused, who may be arrested at any time, if

 

necessary.  In other words, this Section has reference to the persons to be examined

 

as witnesses in the trial or inquiry to be held after the completion of the investigation.

 

As an accused cannot be examined as a witness either for or against himself, he

 

cannot be included in the class of persons referred to in the Section.  But the police

 

officers are fully authorised to require the personal attendance of the suspects during

 

the investigation.

 

 

In the instant case, the High Court, by an impugned order has given a direction

 

to the State Government to issue circulars to all the police stations instructing the police

 

officials that the woman accused/witness should not be summoned or required to attend

 

at any police station under Section 160 Cr.P.C. but they must be enquired only by

 

women police or in the presence of a women police, at the places where they reside.

 

The High Court has issued a further direction to the Government to ensure that this

 

instruction is strictly followed by the police in future.

 

 

In our opinion, the High Court has committed a serious error in giving such a

 

direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is

 

applicable only to the witnesses and not the accused.  The High Court has also

 

committed a grave error in giving a finding as to the confession and recovery of a nylon

 

rope alleged to have been used in the commission of murder, thereby

 

stifling/foreclosing the investigation into an offence of murder even before a final report

 

in the case as contemplated under Section 173(2) of the Cr.P.C. is filed.

 

 

The High Court, in the present case, while dealing with the revision has not only

 

set aside the order granting police custody, but has held that the consequent

 

confession and the alleged recovery have no evidentiary value in the case.  In other

 

words, what has got to be decided in a full-fledged trial, the High Court merely on the

 

pleadings of the parties has given a finding that the order granting police custody and

 

the consequent confession and the alleged recovery had no evidentiary value

 

whatsoever in the case.  The learned single Judge has also given a finding that records

 

were created to implicate the respondent-Joy Immaculate in the case.  Needless to

 

state that any further investigation in the case permitted by the learned Judge would be

 

an exercise in futility in the context of such finding which could be given only during the

 

course of a full-fledged trial.  The High Court, while disposing of the criminal revision,

 

has given several findings/directions in para 40 of the judgment/order.  In our opinion,

 

the learned Judge has miserably erred in allowing the criminal revision petition against

 

the order of the lower Court in criminal M.P. No. 5171/2001, as the order passed by the

 

lower Court was acted upon, i.e., one day police custody was granted, the accused was

 

taken into custody and surrendered back, and thus the petition to set aside that order

 

has become infructuous.  Further, the learned Judge has erred in directing the State

 

Government to issue a circular to all the police stations instructing the police officials

 

that the woman accused/witness should not be brought to the police station and that

 

they must be enquired only by women police or in the presence of women police at the

 

places where they reside.  The learned Judge has failed to note that the

 

aforementioned findings is contrary to the statutory provisions contained in Section 160

 

of the Cr.P.C.  In fact, the learned Judge has erred in expanding the scope of Section

 

160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating

 

agency.  If the directions of the learned single Judge is accepted, no purposeful

 

investigation into any serious offence involving women accused could be conducted

 

successfully.

 

 

Above all, the learned Judge has committed a grave error in awarding a

 

compensation of Rs. 1 lakh on the ground that the police personnel committed acts of

 

obscene violation, teasing the respondent herein.  The learned Judge has relied upon

 

only on the basis of the affidavit filed in the case for coming to the conclusion and also

 

on the basis of the assumption that the respondent was not involved in the incident

 

which will foreclose the further enquiry ordered by the learned Judge in the matter.

 

There is no justification for awarding compensation to a person who is facing

 

prosecution for a serious offence like murder even before the trial has started.

 

The learned Judge has also directed to take immediate departmental action

 

against P-1 Inspector of Police and P-4 Inspector of Police and other Police Personnel

 

who were responsible for the detention and other alleged acts committed on the

 

respondent at P-4 police station.  This direction, in our opinion, is not warranted in view

 

of the fact of our allowing the criminal appeal and setting aside the judgment of the

 

learned single Judge.  The said direction issued by the learned Judge is set aside.

 

 

We, therefore, set aside the order in the criminal revision to prevent abuse of

 

process of court or otherwise to secure the ends of justice.  It is a principle of cardinal

 

importance in the administration of justice that the proper freedom and independence of

 

Judges and Magistrates must be maintained and they must be allowed to perform their

 

functions freely and fearlessly and without undue interference by anybody.  At the same

 

time, it is equally necessary that in expressing their opinions, Judges and Magistrates

 

must be guided by considerations of justice fair play and restraint.  It is not infrequent

 

that sweeping generalization defeat the very purpose for which they are made.  It has

 

been recognised that judicial pronouncements must be judicial in nature, and should not

 

normally depart from sobriety, moderation and reserve, as observed by this Court in

 

The State of Uttar Pradesh vs. Mohd. Naim AIR 1964 SC 703.  It is also very apt to

 

quote para 13 of the judgment in A.M. Mathur vs. Pramod Kumar Gupta AIR 1990 SC

 

1737 which reads thus:

 

“Judicial restraint and discipline are as necessary to the orderly

 

administration of justice as they are to the effectiveness of the army.  The

 

duty of restraint, this humility of function should be a constant theme of our

 

Judges.  This quality in decision making is as much necessary for Judges to

 

command respect as to protect the independence of the judiciary.  Judicial

 

restraint in this regard might better be called judicial respect; that is, respect

 

by the judiciary.  Respect to those who come before the Court as well to

 

other coordinate branches of the State, the Executive and Legislature.

 

There must be mutual respect.  When these qualities fail or when litigants

 

and public believe that the judge has failed in these qualities, it will be

 

neither good for the judge nor for the judicial process.”

 

 

This Court, in a number of other decisions, has also observed that the Courts

 

should not make unjustifiable observations and directions beyond the scope and ambit

 

of the lis pending before it and that such a direction and observation issued will only

 

hamper the free-flow of justice and cause lot of inconvenience to the litigants who come

 

before the Court for redressal of their genuine grievances.

 

 

It is also apt to quote hereinbelow the observations made by this Court in Kashi

 

Nath Roy vs. State of Bihar [(1996) 4 SCC 539] wherein this Court held that granting

 

of bail on the ground of an infirmity in evidence in the criminal trial was not a glaring

 

mistake or impropriety so as to attract adverse remarks and suggestion for initiation of

 

action against the Judge-Subordinate from the High Court Judge.  While stating the

 

proper course to be adopted in such a case, this Court held as follows:

 

“The courts exercising bail jurisdiction normally do and should refrain from

 

indulging in elaborate reasoning in their orders in justification of grant or

 

non-grant of bail.  For, in that manner, the principle of “presumption of

 

innocence of an accused” gets jeopardized; and the structural principle of

 

“not guilty till proved guilty” gets destroyed, even though all sane elements

 

have always understood that such views are tentative and not final, so as to

 

affect the merit of the matter.  Here, the appellant has been caught and

 

exposed to a certain adverse comment and action solely because in

 

reasoning he had disclosed his mind while granting bail.  This may have

 

been avoidable on his part, but in terms not such a glaring mistake or

 

impropriety so as to visit the remarks that the High Court has chosen to

 

pass on him as well as to initiate action against him, as proposed.

 

 

Whenever any such intolerable error is detected by or pointed out to

 

a superior court, it is functionally required to correct that error and may, here

 

and there, in an appropriate case, and in a manner befitting, maintaining the

 

dignity of the court and independence of judiciary, convey its message in its

 

judgment to the officer concerned through a process of reasoning,

 

essentially persuasive, reasonable, mellow but clear, and result-orienting,

 

but rarely as a rebuke.  The premise that a Judge committed a mistake or

 

an error beyond the limits of tolerance, is no ground to inflict condemnation

 

on the Judge-Subordinate, unless there existed something else and for

 

exceptional grounds.”

 

 

 

I respectfully agree with all other directions and the observations made by

 

brother G.P. Mathur, J. in allowing the criminal appeal and setting aside the impugned

 

judgment of the High Court dated 11.04.2002.

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