A.P. Ravani, J.
1. In case of conflict between the notes of injury on the person of accused made by the Magistrate and the deposition given by the Medical Officer who examined the accused, should it be necessary for the learned Magistrate to transfer the case? Can it be a valid and sufficient ground for transfer of a case? The application is filed with a view to seek an answer to this question. But other questions concerning the protection of basic human rights of citizens also arise in this case. They are -
Is there any warrant for assumption that complaints of ill-treatment in police custody is 'mostly' made by habitual offenders? Even if it be so, will a Magistrate be justified in adopting a callous and superficial approach when complaint of custodial violence is made before him? Has the police got any express or implied licence to inflict torture on persons in custody? Is it not that mostly the people belonging to the poor and middle class section of the society (both taken together form 95% of our population and they really constitute the nation) suffer the pangs of custodial violence? What should be the approach of courts when such complaints are made before them?
Before adverting to the aforesaid questions, the facts of the case be examined.
2. The applicants, who are original accused of Criminal Case No. 656 of 1982 of the Court of Chief Metropolitan Magistrate, Ahmedabad, are employees of Police Department. Applicant No. 1 is a police Sub-Inspector, applicants Nos. 2 and 3 are police Constables. They have preferred this application under Section 407 of the Criminal P.C. for transfer of the case pending in the Court of Chief Metropolitan Magistrate, Ahmedabad, to the court of any other Metropolitan Magistrate or to the court of Chief Judicial Magistrate, First Class, Narol.
3. The facts of the case as it appears from the application are to the effect that, on May 11, 1982 at about 7.00 p.m., opponent No. 1, i.e. original complainant along with his father was at his house situated in Murlidhar's Chawl, Khokhra, Ahmedabad. At that time the applicants-accused along with other police officers and constables had gone there. The accused took out currency notes from the pocket of opponent No. 1. Thereupon, the father of opponent No. 1 protested. At that time the applicants started to give blows with a stick to opponent No. 1 complainant. On account of beating opponent No. 1 sustained injuries. It further appears to have been alleged that opponent No. 1 along with his father was forcibly taken to Amraiwadi Police Station and kept there till evening of May 12, 1982. On May 12, 1982 they were produced before the Chief Metropolitan Magistrate as accused in a gambling case.
4. When the opponent-complainant was produced before the learned Magistrate, he made complaint regarding beating by policemen. The learned magistrate after hearing the complainant made certain notes with regard to the injuries on his person. It is stated in the application that according to the notes made by the learned Magistrate, there were no external marks of injury. However, opponent NO. 1 was sent to Civil Hospital, Ahmedabad, where Dr. S. K. Chaudhri examined him and found the following injuries:
(1) Tenderness - Great Toe bleeding;
(2) Wheel mark 3' X 1/2' on Lt. forehead oblique in diameter
(3) Wheel mark 3' X 1/2' over both Gluteal area;
(4) Wheel mark 3' X 1/2' Lower Eyelid;
(5) Wheel Mark 3' X 1' back of Chest oblique.
It appears that the learned Magistrate recorded the complaint and ultimately issued process against the applicant-accused. The applicants appeared in the case and pleaded not guilty to the charge and claimed to be tried.
5. The prosecution examined opponent No. 1, i.e. the complainant and one Amratlal Mafatlal Patel and the Medical Officer Dr. S. K. Chaudhuri, who examined opponent No. 1 complainant on May 12,1982. It appears that the Doctor was examined in the case on July 15, 1983. The applicants submitted an application before the trial court (in the copy produced before the Court, no exhibit number is mentioned) stating that opponent No. 1 was produced before the Court on May 12,1982 at about 5.30 p.m. At that time the Court had recorded the complaint made by opponent No. 1 and put an endorsement below the same that there were no external marks of injury on the person of opponent No. 1. Opponent No. 1 complainant was immediately sent to Civil Hospital where he was examined by the Medical Officer who has given his evidence today, i.e. July 15,1983. As per the deposition of the Medical Officer it transpired that there were wheel marks below the eye and on the back of the body of opponent No. 1 and these marks of injuries were visible by eye. On this basis it was submitted that there was discrepancy between the notes made by the learned Magistrate and the deposition given by the Medical Officer. This apparent conflict or inconsistency will have to be resolved in the ease and will have to be decided as to whether the deposition given by the Medical Officer is correct or the notes made by the learned Magistrate is correct. Therefore it was prayed that, in the interest of justice, the case be transferred to any other court. The application was given by only one of the accused, i.e. applicant No. 3 Natwarsinh Shivsinh. After hearing the parties the learned Magistrate passed an order to the effect that he felt no embarrassment in deciding the case and therefore he did not think it fit to grant the application. However, he observed that it would be open to the accused to make appropriate application before the court of proper forum and adjourn the case for a period of 15 days.
6. Thereafter the applicants-accused preferred an application being Criminal Misc. Application No. 303 of 1983 in the court of City Sessions Judge, Ahmedabad. The learned Addl. City Sessions Judge who heard the application rejected the same by his order dated September 7, 1983. Feeling aggrieved by the aforesaid orders passed by the lower courts, the applicants-accused have approached this Court by invoking the provisions of Section 407 of the Criminal P.C. The applicants pray that the case be transferred as stated hereinabove.
7. The learned Magistrate has made certain observations in the order from which following points can be safely deducted:
1. While recording such complaints of beating, casual superfluous approach is adopted.
2. Necessary care as required is not being taken and that he did not hesitate in confessing that he was no exception to this rule.
3. That persons making such complaints are mostly habitual offenders.
4. That in case question arises of making selection between such persons (habitual offenders) and police, ordinarily the sympathy would lean in favour of police.
5. Despite the clear provision that the body of the person making such complaint of the treatment should be examined by the Magistrate, the same is not being complied with strictly.
6. That ultimately while appreciating the evidence regarding injury, the evidence of medical officer would prevail.
7. That in the facts and circumstances of the case he felt no embarrassment in deciding the case.
8. The learned Addl. City Sessions Judge who heard the Criminal Misc. Application No. 303 of 1983 filed by the applicants-original accused rejected the same on Sept 7, 1983 by making observations to the effect that 'the factual background arising before the learned Magistrate often takes place in a number of cases' and 'such background does not justify transfer of case from that court to another.'
9. I see no reason to differ with the conclusion arrived at by both the lower courts, but at the same time it is difficult to agree with all the reasons given and observations made by the lower courts. The ground sought to be advanced by the applicants-accused for transfer of the case cannot be accepted as genuine ground. At the most what is sought to be pointed out by the applicants is that on one particular point there are two inconsistent or conflicting circumstances which appear on the record. One circumstance is based on the notes made by the learned Magistrate and another circumstance is based on the deposition given by the Medical Officer. How and in what manner these two conflicting and/or inconsistent circumstances are to be resolved is a question to be decided by the court after hearing the parties. Simply because there may be some inaccuracy or even mistake in making notes by the learned Magistrate, it cannot be made the basis for transfer of the case. Imagine a reverse situation a magistrate making notes of injuries; omission by Medical Officer to note the injuries. Surely it cannot be made a ground for transfer of the case.
10. It was sought to be argued that in some another case against the complainant under the provisions of Bombay Prevention of Gambling Act when he was produced as accused before the court he was questioned by the learned Magistrate. Therein also certain endorsement has been made. It was submitted by the applicants herein that to prove the notes made by the learned Magistrate, in that case it will be necessary to examine the learned Magistrate as witness for defence. Therefore, it was submitted that the case should be transferred. I do not see any merit whatsoever in this ground for two reasons:
(a) Assuming that there is some such endorsement in the record of another case which may be relevant and which may be helpful to the applicants in their defence, the applicants can very well obtain a certified copy of the same and produce in the case. For the purpose of bringing on record such document, it should not be necessary to examine the learned Magistrate as a witness.
(b) Moreover, in view of the provisions of Section 121 of the Evidence Act, no Magistrate can be compelled to answer any questions as to his own conduct as such Magistrate. Therefore also, the applicants cannot be permitted to adopt this course. In above view of the matter, this additional ground is also required to be rejected.
11. A Magistrate may be inaccurate or he may even commit mistakes in making notes of injury on the person of an accused. As stated hereinabove, this cannot be a ground for transfer of a case. But, should such inaccuracy or mistake be an order of the day? If it is a regular phenomenon, it surely provides a cause for feeling disturbed and dismayed, and at the same time for becoming alert.
12. The learned Magistrate is candid enough to confess failings on his part. Justification given for prevalence of superfluous and/or callous approach in such matters is that mostly such grievances are made by habitual offenders and therefore ordinarily sympathy would lean in favour of police. It can never be assumed that such grievances of illtreatment are made 'mostly' by habitual offenders. Even if it be so, police has not been granted licence to ill treat habitual offenders. At any rate the lower courts cannot take shelter under any such a priori assumption and refrain from performing their statutory *' duty. Such casual approach in matters of ill-treatment of accused while in custody appear to have become the order of the day as observed by both the learned Magistrate and the learned Addl. City Sessions Judge. Therefore it is necessary to emphasise the need for change in the approach and outlook of the lower courts. There is no basis for assumption that such complaints will be made by habitual offenders only. Even if such complaint is made by habitual offenders and even if there be sympathy for the police personnel the same would not justify adopting a casual and/or superfluous approach. The ' basis for sympathy towards police appears to be on account of the belief that discerning judicious use of torture or ill-treatment is necessary for detection of crime. Therefore there is implicit assumption that custodial torture and/or violence by police in certain circumstances has got to be recognised as necessary evil. Such belief runs counter to the constitutional provision and the express provision made in the Criminal Procedure Code and the directions given in the Criminal Manual.
12A. In Chapter 1 para 3 of the Criminal Manual issued by the High Court for the guidance of the Criminal Courts and Officers subordinate to it (1960), it is provided that whenever any allegation of ill-treatment is made by a prisoner, the Magistrate shall then and there examine the prisoner's body, if the prisoner consents, to see if there are any marks of injuries as alleged, and shall place on record the result of his examination. If the prisoner refuses to permit such examination, the refusal and the reason therefore shall be recorded. If the Magistrate finds that there is reason to suspect that the allegation is well founded, he shall at once record the complaint and cause the prisoner to be examined by a Medical Officer. He is also required to make a report to the Sessions Judge. There are certain directions in respect of the Medical Officers in charge of jails and in respect of Medical Officers to whom the person in police custody is brought for examination.
13. Section 54 of the Criminal P.C., 1973 contains provision for examination of the body of the accused when requested by him is made. The aforesaid provision with a view to protect the basic human rights of citizens. If the state of affairs in lower courts is such as described by the learned Magistrate and approved by the learned Addl. City Sessions Judge, one has to infer that the aforesaid provision is honoured more in breach rather than in compliance. It may be noted that the mandate given by the legislature equally applies in cases where the complaint of ill-treatment is made by habitual offender also. It is not permissible to make distinction on the supposed ground that the complaints of ill-treatments are mostly made by habitual offenders only. The aforesaid statutory provision is made with a purpose/As per the Scheme of the Criminal P.C. there is a well-defined and well-demarcated function of crime detection and crime punishment. Investigation of a cognizable offence is exclusively reserved for the executive through police department. Even High Court either in its inherent jurisdiction or in writ jurisdiction will not ordinarily interfere with the powers of police to investigate into cognizable cases see King Emperor v. Khawaja Nazir Ahmad and also see State of Bihar v. J. A.C. Saldana : 1980CriLJ98 . Moreover, as per the constitutional scheme, the different organs of the State are assigned powers and duties in respect of the subjects which fall within their respective field. Just as the executive cannot transgress its limits, judiciary cannot transgress its limits and interfere with the subjects specially assigned to the executive. In Saldana's case (supra) in para 1, the Supreme Court has stated that encroachment in other field is likely to be viewed with seriousness and approach of shoot-at-sight, meaning thereby no transgression whatsoever in the field assigned to another organ of the State is torbe tolerated in our constitutional scheme. In this view of the matter, when judiciary is assigned the task of protecting the basic human rights of citizens and provision is made to check custodial violence by police, slackness and/or casual approach in such matters by lower courts can never be tolerated. To do so would amount to becoming a party to the most debased and inhuman form of punishment in the shape of inflicting torture on a person while in custody.
14. Be it recognised that India is a party to the declaration adopted by the General Assembly of United Nations in the year 1975 regarding the protection of all persons from being subjected to torture and other cruel, inhuman or other degrading treatment of punishment. Article 1 of the declaration describes or defines 'torture' which even includes mental torture. The article takes in its sweep torture inflicted by or at the instigation of a public official on a person in custody for the purposes, such as obtaining information, confession, punishing him or intimidating him or other persons. Article 8 thereof provides for impartial examination by the competent authorities of the State concerned whenever such complaints of ill-treatment are made. Article 9 provides for prompt and impartial investigation even if - there be no formal complaint. Article 10 * enjoins duty upon the State to institute criminal proceedings against the alleged offender or offenders in accordance with the national law. Article 11 provides that where the torture or other cruel inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official the victim shall be afforded redress and compensation in accordance with national law.' The declaration articulates the emergent international trends in this sphere.
15. The Constitution provides for protection of individual liberty and basic human rights even in respect of persons accused of an offence, (see Articles 20 21 and 22) Specific statutory provision is made in this behalf (Section 54 of Criminal Procedure Code) and necessary directions have been given in the Criminal Manual. Custodial violence by police is so notorious that one of the terms of reference of the national police Commission appointed by the Central Government sometime after 1977 was with respect to the system of investigation and prosecution.... 'the use of improper methods and the extent of their prevalence' and proposals for making the system 'efficient, scientific and consistent with the human dignity.
It must be recognised by all concerned that under our Constitution and in our system of administration of justice, torture in any form, for the purpose of investigation into crime is not justified and in no case the same can be looked at with a sympathetic eye. Therefore it is necessary that all concerned must shun the notion that torture or ill-treatment of persons in custody as justifiable. It is barbarous inhuman. It is something which has got to be eliminated and therefore can never be tolerated. There is no justification for sympathy in police in such cases. One must have constitutional inspiration reinforced, by the emerging international trends against cruelty and torture. There is no legitimate ground on the basis of which torture in custody by police can be justified. One must feel with mental and moral agony when a human being whose liberty has been taken away and who is detained in custody is subjected to torture. Torture in any form by police is an evil and custodial torture or violence is an exaggerated form of evil. -..,
16. In the present day status-ridden set up of our society and having regard to the traditional outlook of police and their behaviour pattern, can it ever be imagined that the police would ever inflict torture on a person who is rich and powerful? On the contrary such rich and powerful persons are not likely to be arrested at all. If arrested they are more likely to be treated as 'state guests' rather than prisoners. In our society, if experience and common sense is any guide, it can safely be said with reasonable certainty that mostly the victims of custodial violence would be, people belonging to lower economic strata of the society. Has any Magistrate ever come across a case where a well-to-do person belonging to the upper elite strata of the society been subjected to torture by any policeman at any time? Such may be the rarest of rare cases. Again it may be an accident. Mostly it is the lot of the poor people and people belonging to the middle class who become the Victims of such custodial violence. Is it not the duty of the judicial officers to protect them? Are they not citizens entitled to protection of law at the hands of judiciary? In terms of number they probably form 95% or more of the population of the country. In fact they are the people who constitute the nation. Should the judiciary turn its face away from this reality and leave the lot of the poor and middle class people to the mercy of police? If that is done, will it not amount to betrayal of cause of justice and betrayal of basic human rights? It must be realised that the stakes are very high. Failure to rise to the occasion is likely to result in the loss of respect for the entire judicial institution and may also lead to other serious consequences both to the judicial institution and to the society at large. It is hoped that the far reaching consequences and the inherent dangers in the superfluous and callous approach adopted in such matters will be realised by all concerned and the necessary corrective steps to change one's own approach and outlook in such matters will be taken immediately.
17. In above view of the matter, subject to the observations made hereinabove, this Misc. criminal application fails and is rejected. Rule discharged.