Vivek Bathla And Another vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

Section 43 of the Code of Criminal Procedure even vests with the power to the private person to arrest any person, who is likely to cause an offence or even apprehended to cause a criminal offence, which is bailable or cognizable offences or arrest could be made by any proclaimed officer so that the delay in causing an arrest of the person accused for cognizable or bailable offence is not left escort free. Section 43 of the Cr.P.C. is quoted hereunder:

"43. Arrest by private person and procedure on such arrest.

(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re- arrest him.

(3) If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released."

But on a simplicitor reading of Section 43 the statute has exclusively given the powers to the private person to arrest a person, on an occurrence of a contingency as referred therein and the sole intention of Section 43, would be attributed only to give a power to the private person for arresting an accused person in relation to the bailable or cognizable offence in order to enable the prosecution to proceed with against the accused person in the absence of the presence of the police officer for affecting of the arrest of an accused person. The purpose of the provision was to expedite arrest, and arrest ought not to delayed or athwarted due to non-availability of competent police officer. It intended to avoid occurrence of public offences.

Section 43 on its reading it had while vesting its power to the private person for arresting it was altogether intended to curb away the delay or avoid the circumstances, which may chance due to the non presence of the police officer for the accused person, who is said to be an accused for commission of the offence, but Section 43 itself cannot be read in a fashion as if it ever intended to override the legal impact and effect of the provisions contained under a special statute, which in the present case happens to be the powers of seizure, which is specially vested with the officer so designated under the Act itself for the purposes of affecting upon the search and seizure for the contrabanded articles under the Narcotic Drugs Act Psychotropic Substances, 1985. The said Act takes the shape of a special statute for making a person accused of commission of an offence under the statute, where seizure plays a vital role, hence, there has to be an establishment of fact of offence after arrest and after a seizure made from a person of the contrabanded article as covered under the said Act. The statute under Section 42 lays down that the powers, which is exclusively being vested for search and seizure of the contrabanded goods has been exclusively vested to be exercised by such officer only, which has been defined under Section 42 of the special Act itself. Meaning thereby, it means that when a special statute confers the power with the special officer designated under Section 42 the same cannot be overridden by a generalized power of arrest vested under Section 43 with the villagers or private powers. Hence, it cannot be extended to give the power of seizure, as it would override Section 42 and power contemplated under the Special Act. Since the statute with its specific intention has not conferred the power to private person under section 43 of Cr.P.C. to search and seizure as because of an alternative provision contained under Section 42 of the NDPS Act of 1985. The argument of the Government Advocate is that in the given set of circumstances at the time when the revisionist was arrested by the private person exercising their power under Section 43 and when they were accused of throwing one bag allegedly containing in it Charas in the river and the second bag, which was recovered by the said villagers, who arrested them contained in it 460 gms. of Charas, that in itself would satisfy the conditions of Section 42 giving the powers of seizure of the contrabanded article, even if arrest is being conducted by the villagers. Section 42 of the Act, which is quoted hereunder:

"42. Power of entry, search, seizure and arrest without warrant or authorisation.-

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

In order to clarify that I am of the considered view that when the statute has specifically conferred an authority on an officer so named in the said provision of special statute, who holds the authority for search and seizure that cannot be borrowed to be delegated to a private individual under the general provisions, as I am of the view that procedure under special statute cannot be overridden under any given set of circumstances in order to establish that the person thus arrested by them under Section 43 was holding with him the contrabanded article as contained and defined under the NDPS Act because it will expose and may lead to misuse of law by arbitrary and malicious exercise of power and planting of contrabanded article cannot be ruled out, which will deceive the very purpose of law.

On initiation of the proceedings by the registration of the FIR No. 23 of 2016 dated 17.11.2016, an investigation was conducted and thereafter a charge-sheet was submitted as against the present revisionist being Charge-sheet No. 18 of 2017 dated 27.02.2017 during the course of investigation as many as 15 witnesses were examined. On a cognizance being taken on the submission of the said charge-sheet a Criminal Case No. 6 of 2017 'State vs. Vivek Bathla and Others' was initiated as against the present revisionist, in which on 03.07.2017, the revisionist has moved an application invoking the provisions contained under Section 227 of the Code of Criminal Procedure, seeking a discharge and in view of the grounds taken in the application itself they have contended that particularly as those contained in paragraph 5 with regards to the implications of Section 43 and paragraph 2 of the said application with regards to the non-compliance of the provisions contained under Section 42 and 50 of the Act, which under special statute designates officer and lays the procedure to be followed for conducting seizure of the contrabanded articles. Paragraph 2 and 5 are quoted hereunder:

"2. कि एन0डी0पी0एस0 एक्ट की धारा 42 व 50 का अनुपालन किया जाना आवश्यक है जो कि प्रथम सूचना रिर्पोट में वर्णित कथन एवं तथ्यों के आधार पर गिरफ्तार करने वाले पुलिस अधिकारी द्वारा नहीं किया गया है और ना ही इस सम्बन्ध में कोई विवेचना कर समाई साक्ष्य लिया गया है, जिससे स्पष्ट होतो है कि विवेचना द्वारा गलत एवं त्रुटिपूर्ण विवेचना कर आरोप पत्र प्रेषित किया गया है।

कि प्रथम सूचना रिपोर्ट में वादी ग्राम प्रधान है उसके द्वारा यह कथन किया गया है कि दिनांक 07.11.2016 को ग्राम पुड़कनी से फोन आया कि दो लोगों ने मदन सिंह नाम के व्यक्ति के साथ मारपीट की है जिसकी सूचना ग्राम प्रधान पुड़कुनी जो कि घटना के समय बागेश्वर में थे को होने के बाद बगैर बागेश्वर पुलिस इत्तिला दिये ग्राम प्रधान कपकोट को फोन कर उक्त दोनों लोगों को कपकोट में पकड़ने के लिए कहने लगे और स्वयं भी पुलिस को इत्तिला दिये बगैर कपकोट के लिए बागेश्वर के लिए निकले तथाकथित घटना स्थल के पास में कपकोट थाना है वहां भी ग्राम प्रधान द्वारा कोई सूचना नहीं दी गयी और स्वयं के द्वारा ही अभियुक्तगणों को पकड़ना व उनसे मनगढ़ंत कहानी बनाकर कथाकथित चरस बरामद होना दर्शाया गया है इस सम्बन्ध में भी विवेचक द्वारा वादी मुकदमा से पुलिस को सूचना न दिये जाने और स्वयं अभियुक्तगण को गिरफतार करने व तलाशी लिए जाने के सम्बन्ध में कोई भी प्रश्नोत्तर नहीं किये गये जिससे स्पष्ट होता है कि विवेचक द्वारा ग्राम प्रधान से हमसाज होकर एन0डी0पी0एस0 एक्ट के प्रावधानों व धारा 43 सी0आर0पी0सी0 के प्रावधानों का घोर उल्लंघन करते हुए तथाकथित विवेचना कर गलत आरोप पत्र प्रेषित किया गया है इसलिए अभियुक्त को आरोपों से उन्मोचित किया जाना आवश्यक है।"

When the discharge application itself came up for consideration before the Trial Court and as per the findings recorded therein, it is apparent that the present revisionist had specifically prayed for that the entire prosecution story as build up by the registration of the FIR against the present revisionists, the story of arrest by the villagers and the recovery of contrabanded articles made by them would be dehors to the provisions contained under Section 42 and 50 of the NDPS Act to read with Section 42 of Cr.P.C. The said ground was also placed in arguments before the learned Sessions Court contending thereof the mode of recovery as it has been narrated in the FIR and subsequently in the charge-sheet and the manner in which it has been conducted and appreciated by Sessions Court and as it would be also apparent also from the recovery memo prepared, it shows that the recovery in fact made has been of the contrabanded article from the revisionist is not in strict adherence to the provisions contained under Section 42 of the Special Act, because the recovery made by the villagers while exercising the powers under Section 43 cannot be said to be a recovery made in compliance to the provisions contained under Section 42 to be read with Section 52 of the NDPS Act.

Be that as it may, but the learned Sessions Court while rejecting the application under Section 227 while considering as to whether a prima-facie case based on the set of allegations as leveled in the complaint, i.e. FIR dated 07.11.2016, as well as in the charge-sheet No. 18 of 2017 dated 27.02.2017, as against the present revisionist, whether there had been a compliance under Section 42 and 50 of the Act, it ought to have been of a prime consideration for the learned Sessions Court, while considering the application for discharge, which is lacking therein in the impugned order. Learned Sessions Court has proceeded on a premise that in view of the Hon'ble Apex Court's judgment as referred therein a detailed appreciation of evidence, which has been brought on record, is not necessary to be scrutinize by the Court at the time of considering the application under Section 227 for seeking the discharge. There is a distinction between application of evidence, and the impact of non-appreciation of law and flaw of procedural defect in acting upon the recovery, for which this Court is of the view that an in depth appreciation of evidence was not required to be gone into at all by the Sessions Court.

On the contrary, as argued by the learned counsel for the revisionist is that in view of the ratio as propounded in a judgment on which he has placed reliance as rendered by the Hon'ble Apex Court in SLP Criminal Case No. 634 of 2010 and also he has placed reliance in a judgment reported in 1996 (9) SCC 766 'Satish Mehra vs. Delhi Administration and Another'. Paragraph 9 to 12 and 15 are quoted hereunder:

"9. Considerations which should weigh with the Sessions Court at this state have been well designed by the Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:

"227. Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing."

Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018, and Supdt, & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52).

In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings under Section 209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weight the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the Court to weight the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course the exercise is to find out whether a prima facie case against the accused has been made out.

In Union of India v. Profullakumar- 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and wight the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, there Lordships pointed out that the test to determine a prima facie case would naturally dependent upon the facts of each case and it is difficult to lay down a rule of universal application. "By and large, however, if who view are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspension, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage.

An incidental question which emerges in this context is whether the Session Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone?

But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself."

He has contended that in view of aforesaid ratio of Hon'ble Apex Court at the stage when the Sessions Court or any Trial Court is determining an application under Section 227 of Cr.P.C. for discharge, it is always open for the Trial Court to scrutinize the evidence available on record in order to appropriately and effectively deduce as to whether a prima-facie set of allegations leveled in the FIR or as well as in the charge-sheet is made out as against the accused person for framing of the charge or for the purpose of considering the application for discharge, its always open for the Sessions Court to look into evidence, the purpose is to impart an effective justice so that an innocent should not be forced the apathy of trial. Apparently, on going through the order under challenge though there had been a consistent pleading raised by the revisionist before Sessions Court, with regards to the mode and manner in which the recovery of the article has been made by the villagers, who were the exercising the powers under Section 43 of Cr.P.C., whether they can conduct seizure? There is no such finding recorded by the learned Session Court that the recovery has been made in compliance of the provisions contained under Section 42 and 50 of the NDPS Act and that too by an officer thus named in the said provision and in the absence of the same, it could be said that the impugned order dated 10.07.2017 rejecting the application for discharge could be said to be perverse and without appreciating law as pleaded by the revisionists. Hence, in the absence of there being any finding recorded to the said effect, it would render the judgment to be perverse and without appreciating law as sought to be argued.

In that view of the matter without expressing any opinion on the merits of the matter with regards to the consideration of the application for discharge under Section 227 of Cr.P.C., the impugned order dated 10.07.2017 is hereby quashed. Consequently, the criminal revision is allowed, and the matter is remitted back to the Sessions Court, Bageshwar, to reconsider the application under Section 227 of Cr.P.C. After considering the legal aspect as to what would be the impact for considering the application under Section 227 of Cr.P.C. with regards to non-compliance of Section 42 and 50 of the NDPS Act and whether when the villagers were functioning under Section 43 of Cr.P.C., whether they would be entitled to satisfy the conditions of Section 42 of the NDPS Act.

Subject to the above observation, the matter is remitted back to the Sessions Court to reconsider the application under Section 227 and particularly in the light of the impact of the Section 42 of the NDPS Act and to decide it afresh.