State of Rajasthan vs Shri Akhilesh Sharma

Bela M. Trivedi, J.—The present petition arises out of the letter dated 31.1.09 written by th District & Sessions Judge, Sawai Madhopur addressed to the Registrar General, Rajasthan High Court, Jodhpur, forwarding the letter dated 29.1.09 written by the Chief Judicial Magistrate, Sawai Madhopur, referring the matter to the High Court, for taking necessary action against Shri Akhilesh Kumar, who was serving as SHO, Police Station Maan Town, Sawai Madhopur, under the Contempt of Courts Act, 1971 (hereinafter referred to as ''the said Act'') for the alleged non-compliance of his order dated 1.10.08. The court vide order dated 20th April, 2009 had issued the notice to the said Akhilesh Kumar and directed the learned Government Counsel Shri Pradeep Kalwania to represent the interest of the State in the contempt petition. In response to the said notice, the respondent Shri Akhilesh Kumar has filed his reply, to which rejoinder has been filed by the Dy. S.P., Sawai Madhopur on behalf of the State. The record of the case called for by the court, has also been perused.

It appears that one Shri Harphool Meena S/o. Jansi, R/o. Basokala, Tehsil Khandar, District Sawai Madhopur had lodged a complaint on 10.10.06 at Police Station Maan Town, Sawai Madhopur alleging inter alia that his son Hansraj, who was living in Adarsh Nagar was detained in the lockup at the Police Station, Maan Town on 30.9.06, and that on 1.10.06 two constables had come to inform him that his son was in the lockup; that the complainant went with the said constables to the Police Station and at about 12.00, the complainant was taken to the General Hospital, where his son was declared dead. It was alleged in the complaint that the son of the complainant was beaten and murdered by the police officers when he was in police custody. On the basis of the said complaint, an FIR came to be registered being No. 434/06 u/s 143, 302 and 201 of IPC and Section 3(2)(5) of SC/ST (Prevention of Atrocities) Act. It appears that thereafter an enquiry was conducted by the Addl. S.P., CID (CB), who after investigation filed the final report before the Addl. Chief Judicial Magistrate, Sawai Madhopur, who accepted the same vide order dated 25.6.07. It appears that thereafter on 29.10.07 the protest petition having been filed by the complainant i.e. the father of the deceased, the learned Chief Judicial Magistrate vide order dated 1.10.08 appointed the Addl. Chief Judicial Magistrate, Gangapur City to hold judicial enquiry into the matter and directed to complete the inquiry within one month on the receipt of the application from the concerned Investigating Officer. It appears that thereafter the Chief Judicial Magistrate had written the letter dated 3.10.08 to the concerned Addl. Chief Judicial Magistrate, the copy of which was sent to the SHO, Maan Town Police Station, Sawai Madhopur, informing him about the order and directing to cooperate with the enquiry officer in the enquiry. It appears that thereafter the Chief Judicial Magistrate, Sawai Madhopur again wrote a letter dated 15.11.08 to concerned SHO informing him as to what documents were produced by him before the enquiry officer. It further appears that in response to the letter dated 7.1.09 written by the Chief Judicial Magistrate, the Addl. Chief Judicial Magistrate vide letter dated 16.1.09 had replied that no documents were submitted by the SHO, Maan Town Police Station in the enquiry proceedings. The Chief Judicial Magistrate thereafter had written the letter to the Registrar General, Rajasthan High Court, Jodhpur dated 29.1.09 through the District Judge, Sawai Madhopur requesting to take appropriate action for the civil contempt under the Contempt of Courts Act, as there was non-compliance of the order dated 1.10.08 at the instance of the SHO, Maan Town Police Station. The said letter was forwarded by the District Judge, Sawai Madhopur to the Registrar General and accordingly the present petition was registered against Shri Akhilesh Kumar, the then SHO, Maan Town Police Station.

It has been submitted by the learned Govt. Counsel Mr. Pradeep Kalwania for the State that though there is a mandatory provision in the Cr.P.C. for holding judicial enquiry, when the death was caused of the person in police custody, the enquiry was conducted by the Addl. S.P. CID (CB) and, therefore, the Chief Judicial Magistrate vide order dated 1.10.08 had directed the Addl. Chief Judicial Magistrate to conduct the judicial enquiry. According to him in the said order it was directed to inform the concerned SHO, Maan Town Police Station to remain present before the enquiry office and to cooperate in the enquiry proceedings, however the concerned SHO had not complied with the said order. He also submitted that the Chief Judicial Magistrate had thereafter also written the letters to the concerned SHO, however he had not paid any heed to it. According to him, the present respondent was the concerned SHO at the relevant time and hence he had committed the civil contempt as contemplated u/s 2(b) of the Contempt of the Courts Act.

However, the learned counsel Mr. B.N. Sandu for the respondent has submitted that the respondent has tendered an unconditional apology for the alleged non-compliance of the order passed by the Chief Judicial Magistrate. According to him, earlier the enquiry was conducted by the Addl. S.P., CID (CB) who had filed the final report which was already accepted by the concerned Addl. Chief Judicial Magistrate on 25.6.07 and hence he was under the bonafide impression that nothing was required to be done by him. He further submitted that even otherwise the Addl. Chief Judicial Magistrate who conducted the judicial enquiry, has also submitted his report dated 28.5.11, observing inter-alia that there were no injuries found on the dead-body of the deceased Hansraj Meena. Mr. Sandu also submitted that there was no deliberate disobedience on the part of the respondent in not complying with the order dated 1.10.08, and hence the present proceedings be dropped.

Having regard to the submissions made by the learned counsels for the parties and to the record of the case it transpires that the contempt petition has been registered on the basis of the letter written by the Chief Judicial Magistrate to the High Court though the District Judge, Sawai Madhopur, for taking action under the said Act for the alleged non-compliance of his order dated 1.10.08. Having gone through the said letter, it appears that the order dated 1.10.08 was passed by the Chief Judicial Magistrate as earlier the final report submitted by the concerned Investigating Officer of CID (CB) was accepted by the Addl. Chief Judicial Magistrate, in respect of the FIR lodged by the complainant Hansraj and then a protest petition was filed by the complainant.

It is true that when the death of the accused is alleged to have taken place while in the police custody, the concerned Magistrate within whose jurisdiction the offence has been committed, is obliged to hold inquiry, in addition to the enquiry or investigation made by the police in view of Section 176(1A) of Cr.P.C. The very purpose of introducing such provision by the amendment in Section 1976, which came into effect on 23.6.06, requiring the Judicial Magistrate or Metropolitan Magistrate, as the case may be within whose jurisdiction the offence has been committed, appears to be that an independent inquiry could be held in the matter by the concerned Magistrate. Such Magistrate could also examine the dead body if he considers it necessary in view of Section 176(3). Thus, such inquiry is expected to be conducted by the concerned Magistrate, within whose local jurisdiction the offence is committed, and should be conducted at the earliest on the information received by him about the commission of the alleged offence.

So far as the facts of the present case are concerned, it appears that though the FIR for the alleged offence was registered on 1.10.06, the concerned Addl. Chief Judicial Magistrate, Sawai Madhopur had not conducted any inquiry as contemplated u/s 176(1A). Not only that, he appears to have mechanically accepted the Final Report submitted by the concerned Investigating Officer, Maan Town Police Station, as per the order dated 25.6.07. Under the circumstances, the Chief Judicial Magistrate, Sawai Madhopur appears to have passed the order dated 1.10.08. It is required to be noted that it was highly improper on the part of the concerned ACJM, Sawai Madhopur, in not conducting the inquiry u/s 176 (1A) and in accepting the final report mechanically. However, on close reading of the order dated 1.10.08 passed by the Chief Judicial Magistrate, Madhopur, it appears that he directed such inquiry to be held by the A.C.J.M., Gangapur City, though the offence was committed within the local jurisdiction of Sawai Madhopur. As such the concerned Magistrate within whose jurisdiction the offence was committed, should have been directed to hold inquiry, as per Section 176(1A). Be that as it may, this court is not required to go into the legality of the said order in the present proceedings, It further appears that the Chief Judicial Magistrate while appointing the Addl. Chief Judicial Magistrate Gangapur City as the enquiry officer, had directed him to conclude the enquiry within one month of the application received from the concerned Investigating Officer. Simultaneously a direction was also given to inform the concerned SHO Maan Town Police Station to remain present before the enquiry officer and produce necessary record. Thereafter it appears that on 3.10.08 he himself had written one letter to the Addl. Chief Judicial Magistrate informing him about the said order passed by him and sent a copy thereof to the SHO, Maan Town Police Station, Sawai Madhopur. Thereafter also the said Chief Judicial Magistrate appears to have written letters to the concerned Magistrate at Gangapur City and the SHO, Maan Town Police Station, however the concerned SHO did not remain present in compliance with his order, and hence referred the matter to the High Court. In the meantime, the ACJM, Gangapur City appears to have held inquiry and submitted the report dated 28.5.11. The said report is part of the record.

Since, the present respondent Akhilesh Kumar was the SHO, Maan Town Police Station during the period 9.7.08 to 18.1.09, the matter is referred to take action against him under the Contempt of Courts Act.

In the reply filed by the respondent, it has been stated that when the file was closed by the Addl. Chief Judicial Magistrate vide order dated 25.6.07, he was under the bonafide impression that nothing further was required to be done in the matter. He has also tendered the unconditional apology if any unintentional non-compliance of the order was made at his instance. As such, when the Chief Judicial Magistrate had intimated about his order dated 1.10.08 to the SHO, Maan Town Police Station, it was the duty of the respondent who was in-charge of the said Police Station to cooperate with the inquiry. Even if he did not have the papers or record and even if he was under the bonafide impression that nothing further was required to be done, he was required to go before the concerned Magistrate and appraise him about the facts. Hence, such conduct of the respondent in not responding to the letters written by the Chief Judicial Magistrate is strongly deprecated. At this juncture, the court cannot restrain itself from observing that the Chief Judicial Magistrate also should not have personally entered into the correspondence with the SHO of the Police Station. It is needless to say that if any direction is contained in the judicial order against any police officer, it is for the office of the court to convey such order to the concerned police officer, and not for the Judge himself to write letters personally. Now, without stretching the matter any further, having regard to the fact that now the judicial enquiry conducted by the Addl. Chief Judicial Magistrate, Gangapur City is also over, and in view of the unconditional apology tendered by the respondent, the court is of the opinion that the present contempt proceedings deserve to be dropped by accepting the unconditional apology and discharging the respondent, in view of the proviso to Section 12 of the Contempt of Courts Act. In view of the above, contempt proceedings against the respondent are dropped and the contempt notice is discharged. The petition stands disposed of accordingly. The office is directed to send back the record forthwith.