Rajan Priyadarshi, Dy. Commissioner of Police and Others vs Premilaben Indravadan Patel and Another

D.C. Gheewala, J.—These petitions are directed against the order passed by the learned Metropolitan Magistrate, Court No. 17, in Criminal Case No. 757/ 75 on his file. The opponent No. 1 Premilaben Patel had filed a complaint against the present petitioners. The petitioners were and are serving as Police officers in various cadres. In the said complaint it was inter alia contended that during the antireservation disturbances which were prevalent in the Gujarat State in general and more particularly in Ahmedabad city, during the month of April, four petitioners who were cited as accused bad beaten the complainant and hence she filed a complaint before the learned Metropolitan Magistrate, Court No. 17, for offences punishable under Sections 147, 148, 307, 325 read with Section 149 of the I.P. Code and 114 of I.P. Code. The said complaint came to be filed on 12-4-1985. Her verification was recorded on the same day and on the same day she gave an application that the accused had tried to kill her and if they were allowed to enter the Asarwa area, then once again they would try to do the same, and hence pending the hearing of the complaint and till the same was disposed of, they should be prevented from catering Asarwa area. The learned Metropolitan Magistrate passed an order below the said application in following terms:

Heard. The complainant has been examined on oath. Considering the circumstances mentioned, I am of the opinion that accused be restrained from entering the limits of Asharawa Police chawky. Yadi be written to the Commissioner of Police.

Pursuant to the said order by outward No. 204 of 1985, of even date, communication was sent to the Police Commissioner. By these two petitions, the said order has been challenged and it is prayed that the order and outward No. 204 of 1985 written pursuant to the said order to the Police Commissioner be quashed. Initially the State of Gujarat was cited as a petitioner, but subsequently it was transposed as opponent No. 2.

Mr. J.U. Mehta, the learned P.P. appearing on behalf of the State of Gujarat, urged that the complaint was being inquired into by the learned Metropolitan Magistrate u/s 202 of Cr. P. Code and the court had no jurisdiction to pass the order that it passed. The learned Advocate General appearing for the petitioners urged that the Police Officers who have been cited as an accused and who have been petitioners before this Court were discharging their duties and the learned Advocate General urged that a blanket order restraining the Police Officers from entering particular area would virtually tantamount to exercising jurisdiction which the court did not possess. Such an order could have been passed only in the exercise of some inherent jurisdiction, vested in the court and while u/s 482 of Cr. P. Code, the High Court does possess such inherent jurisdiction, no inherent jurisdiction is vested in the criminal court, subordinate to the High Court and hence the order was ex-facie bad and it should be quashed and the communication of even date bearing outward No. 204/1985 should also be quashed.

The learned Advocate General in support of his contention drew my attention to Section 482 of the Criminal Procedure Code, where under the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, have been safe-guarded. The learned Advocate General further urged that regarding such inherent power there is no provision to be found in the entire Code which might even remotely give an idea that the subordinate courts of Criminal Jurisdiction possess such inherent powers. Mr. Thakore, therefore, urged that an order passed by the learned Magistrate was beyond his jurisdiction, beyond his competence and as such requires to be quashed.

The learned Advocate General drew my attention to 14th and 41st report of the Law Commission and drawing my pointed attention to certain paragraphs from the said Volumes, the learned Advocate General urged that even though the Commission had recommended that subordinate courts should be vested with some inherent powers even in the amended Code of 1973, the Legislature had not thought it fit to vest the subordinate courts with such powers and when the learned Metropolitan Magistrate did not possess those inherent powers he should not have passed the impugned order. In this behalf, the learned Advocate General drew my attention to a case reported at 1978 (2) Criminal Law Journal P. 1310 Ghanshyam Das v. Cuttack Municipality where the learned Single Judge of the Orissa High Court in para 5 of the judgment observed:

At the outset it must be stated that unlike a Civil Court, a Criminal Court other than a High Court does not possess any inherent powers. u/s 482 Cr. P. Code the High Court alone has inherent power to rectify injustice and prevent abuse of process of the Court.

Similarly in a case reported at 1978 Cr. L.J. 187 the Supreme Court also observed that inherent powers u/s 561 are only given to the High Court and unlike Section 151 of Cr. P. Code (Sic Civil Procedure Code) subordinate Criminal Courts have no inherent powers. There cannot be any gainsaying the proposition that the Criminal Courts subordinate to the High Court do not possess any inherent powers which the High Court possesses u/s 482 Cr. P. Code. However, every Court which exercise judicial powers can be said to have that much of inherent powers whereby it can see that the trial is properly conducted, that witnesses are not tempered with; that the ends of justice are not defeated and for preventing such actual or apprehended abuse the orders that may be found necessary for securing that end can always be passed. Mr. D.N. Desai, the learned advocate appearing for the original complainant Premilaben who is opponent No. 1 in the present petition drew my attention to a case reported at 41 Cr. L.J. 251, where the learned Chief Justice of Bombay High Court speaking for the Division Bench observed as under:

In my opinion, every Judge or Magistrate trying a criminal case has inherent power to see that the trial is properly conducted and that the ends of justice are not defeated, and if facts are brought to its attention, which suggest that unless the person who is being tried is placed under arrest, the ends of justice will be defeated, the Court has inherent power to direct his arrest.

In the instant case, the complainant''s apprehension was that if the petitioner Police Officers were not restrained from entering a particular area they might try to kill her. If the Magistrate found substance in the said apprehension then also he could not have passed such a blanket order which he has passed in the present case. The petitioners who were Police Officers were discharging their duties and to prevent them from entering a particular area wherein they were supposed to discharge their duties could not have been restrained from entering the same and more especially so when the situation was so inflammable, that arson, loot, murder and violence in all forms were rampant in most parts of the City. It was a situation where anything could have been happened at any time. The existing police force had to be assisted by the Military for bringing the situation under control and at that time to prevent the Police Officers from discharging their duties in an area allocated to them would have meant a complete transgression of jurisdiction by the learned Magistrate. In the instant case the order of the learned Magistrate clearly transgressed by defined limit inasmuch as the police officers though they were cited as accused were asked not to enter a particular area for discharging their duties. If the officers were arrested and thereafter released on bail by the learned Magistrate, u/s 437 of the Code of Criminal Procedure, naturally he could have levied conditions but while the complaint was under an inquiry u/s 202 of Cr. P. Code and when arrest of the accused was not ordered, and hence the question of their being released on condition did not arise, such a blanket restraint order was clearly beyond the competence of the learned Magistrate. If the apprehension voiced by the complainant was valid and if the learned Magistrate was of the opinion that the petitioners Police Officers should be prevented from contacting witnesses cited by the complainant with a view to suborn them or that the complainant''s physical safety was jeopardized then such an order could have been passed, at the time of releasing them on bail after their arrest because for passing of such an order a specific provision of the Code could have been pin pointed. When the learned Magistrate did not possess any inherent powers such blanket order could not have been passed. Mr. D.N. Desai, the learned advocate appearing for the original complainant, who is opponent No. 1 herein, voiced his objection against Mr. J.U. Mehta, the learned Public Prosecutor appearing on behalf of opponent No. 2 State, and he urged that originally the State of Gujarat was the petitioner. It was deleted as a petitioner and transposed as opponent No. 5 and in that case the learned Public Prosecutor could not have appeared for the State of Gujarat. This particular contention seems to be springing from the misreading of Law Officer''s conditions of service rules. Rule 31 contained in Chapter V of the said Rules, provides for criminal cases in which Public Prosecutor should appear and Clause (h) of the said Rule provides that the Public Prosecutor can appear in any other case in which he it is required to do so by the Government. Mr. Desai, also urged that now the petition does not survive and if an application would have been made by the petitioner to the learned Metropolitan Magistrate, the said order could have very well been modified by him and the petition before the High Court u/s 482 of Cr. P. Code was clearly uncalled for.

While it is true that the learned Metropolitan Magistrate under the changed circumstances might have modified the order but if the petitioners had thought it fit to challenge the said order before the High Court by way of this application, I do not think that the petitioners can be thrown out of the court for that reason.

Under the circumstances, the present petitions are required to be allowed and the order passed by the learned Metropolitan Magistrate and the communication addressed to the Police Commissioner bearing outward No. 204/85 are hereby quashed. Rule is made absolute to the above extent.