Milind N. Jadhav, J.
1. Heard Mr. Mundargi, learned Advocate for Applicant and Ms. Tidke, learned APP for Respondent – State of Maharashtra.
2. The present case challenges the order dated 25.10.2002 passed by learned Trail Court rejecting the discharge Application filed by the Revision Applicant who is original Accused No.2. The Revision Applicant shall be referred to as Applicant for convenience.
3. At the outset, what is significant is the timeline in the present case. The incident in respect of which prosecution has been launched, occurred on 29.09.1993. Originally there were six Accused out of which one Accused namely Accused No.1 has been exonerated by order dated 25.10.2002 allowing his discharge Application. The incident led to the death of one suspect who was brought and detained by the police officers / team involved with investigation of Crime No.70 of 1993 registered ten days prior to the date of incident on 19.09.1993 under Section 380 of Indian Penal Code, 1860 (for short ‘IPC’). Applicant before me is the Investigating Officer. He was appointed on probation as Police Sub-Inspector at Taloja Police Station on 19.08.1993 and assigned to undertake investigation as Investigating Officer in Crime No.70 of 1993 registered on 19.09.1993 pertaining to theft of gold ornaments from a residential house.
4. Before I advert to the submissions and merits of the matter as argued by Mr. Mundargi and Ms. Tidke, it is pertinent to refer to the impugned order passed by Sessions Court which is appended at page No.22 of the Application. If the said order is seen then the reason for rejection of discharge Application qua the Applicant before me who had sought discharge is given in paragraph No.6. However on the basis of the same findings returned in paragraph No.6, learned Trial Court has passed order in the same impugned order discharging Accused No.1 - Vinayak Siddheshwar Joshi, however rejecting the discharge plea of present Applicant – Accused No.2. Accused No.1 is the P.I.- Police Station In-charge where the incident took place and Superior Officer of Applicant. In so far as exoneration of Accused No.1 is concerned, adequate reasons have been enumerated in paragraph No.5 of the impugned order. Court has opined and concluded that there is no evidence on record to show that Accused No.1 - Police Inspector - Mr. Joshi had a common object or intention alongwith the other five Accused including the Applicant (Accused No.2) who have alleged to have taken part in committing the offence leading to death of deceased in custody nor there is any evidence on record to show that he aided or helped the other Accused, including the Applicant in any manner in the offence arraigned against them. Thus in the absence of any evidence to indicate that Accused No.1 participated in any manner in commission of the alleged offence alongwith the remaining Accused, is exonerated and discharged. In the same breath in so far Accused No.2 is concerned, the only singular finding returned by the Court to reject his discharge plea is on the ground that he was in-charge of the investigation of crime as I.O. and Accused Nos.3 to 6 acted upon his directions and arrested the deceased. Save and except this finding / observation there is absolutely no other worthwhile discussion, deliberation on the facts and records of the case investigated qua Accused No.2, the Applicant before me. In so far Accused Nos.3 to 6 are concerned, they have been indicted for carrying out the act and commission of offence of causing hurt to deceased resultantly leading to his death while in custody after he was brought in the Police Station. What is found to be strange is that there are no reasons given by the learned Trial Court while rejecting the discharge plea qua the Applicant, though admittedly in criminal law there is no vicarious liability and therefore the facts of the case need to be considered.
5. Prima facie, I find that there are no reasons given by the learned Trial Court when it was duty of the Trial Court to consider the evidence prima facie and ascertain whether it conformed to the case made out by the prosecution against Applicant. The finding returned in paragraph No.6 is vague, insufficient and as cryptic as possible because from what has been argued before me by Mr. Mundargi, I find that the relevant material on record has not been considered at all.
6. Briefly stated, the facts in the present case are that on 19.09.1993 one Mr. Bhau Rama Patil of village Tondare, Taluka – Panvel lodged complaint of theft in his house with Taloja Police Station which was registered as Crime No.70 of 1993 for offence punishable under Section 380 read with Section 34 of IPC against unknown persons. Allegation was that some unknown persons had stolen gold ornaments from his house. Investigation in the crime was undertaken. At that time, Applicant was appointed as Police Sub-Inspector on probation and posted at Taloja Police Station on 19.08.1993. He was assigned as investigating officer in this case of theft. Four constables namely Accused Nos.3 to 6 were assigned to assist Applicant in investigation. It it is prosecution case that on instructions of Applicant deceased - Pandurang Dharma Patil being a suspect was directed to be arrested and brought to the Police Station. However there is no prima facie evidence on record of any such direction having been given by Applicant as Investigating Officer to Accused Nos.3 to 6 and admittedly and there is no record / entry of Pandurang Dharma Patil being arrested on the ninth day after the date of above incident of theft in the Police Station diary or any other documentary evidence evidencing his arrest and being brought to the Police Station and detained. Pandurang Dharma Patil was brought to the Police Station by Accused Nos.3 to 6 on the intervening night of 28.09.1993 and 29.09.1993 and he was brutally assaulted at midnight. It is prosecution case that Pandurang Dharma Patil strangulated himself in latrine and committed suicide on the following day i.e. 29.09.1993. What is crucial is that Pandurang Dharma Patil was not only the person who was brought to the Police Station and detained as suspect but alongwith him there were two other persons whose names are Bhagwan Rama Patil and Irfan Usman Shaikh. When the incident occurred in the Police Station and when he was brought to the Police Station of which Accused No.1 was the Police Inspector in-charge of the said Police Station at the relevant time, exoneration of Accused No.1 has been allowed by the Trial Court on the ground that he had no knowledge about it. The role of Applicant as Investigating Officer is therefore required to be seen qua discharge of Accused No.1. In support of his submission, Mr. Mundargi has referred to and relied on the decision of Supreme Court in the case of Ashoo Surendranath Tewari V/s. Deputy Superintendent of Police, EOW, CBI and Another(2020) 9 Supreme Court Cases 636.
7. Before I advert to the merits argued by Mr. Mundargi seeking exoneration and discharge, Mr. Mundargi has placed on record a departmental inquiry order dated 05.11.2019 in the case of Applicant before me pertaining to the subject incident leading to the death of Pandurang Dharma Patil. It is stated in the departmental inquiry order that departmental inquiry pending against the Applicant has been directed to be closed pursuant to recommendation received from the Assistant Commissioner of Police. Needless to state that this direction and order is based upon the material which has been considered by the Police Commissionerate during inquiry. The inquiry officer therein is the Assistant Commissioner of Police who conducted the inquiry and his report has been accepted by the Police Commissioner’s Office / Authority. Appended to the said decision are the details of the departmental charge framed against Applicant and recording of the statements of witnesses including two eye witnesses to the said incident. It is seen that in the said departmental inquiry, evidence of 11 witnesses was recorded whose names are appended on internal page No.3 of the inquiry report. Three out of them are Accused Nos.3 to 6. The evidence of the eye witnesses namely Bhagwan Rama Patil who was brought alongwith deceased Pandurang Dharma Patil and Irfan Usman Shaikh to the Police Station on the date / night of the incident is critical and important. It is seen that Bhagwan Rama Patil and another constable Prabhakar Parshuram Patil of Panvel Police Station have deposed in detail about the incident as eye-witnesses to the incident being Government witnesses. That apart, witness action has already been recorded of the happening of the incident by Accused Nos.3 to 6 in detail. What is relevant for consideration is the evidence of the eye witnesses to the incident namely the incident leading to death of Pandurang Dharma Patil while in custody. It is seen that both eye witnesses have stated as to what exactly transpired. One of the eye witness namely – Prabhakar Parshuram Patil who was working as Police Havaldar has stated that on 28.09.1993 after his duty got over at 21:00 hours at night before that Police Inspector – Mr. Vinayak Joshi directed them to bring Irfan Shaikh and Rashid for inquiry with respect to Crime No.71 of 1993 as according to him there would be probability of proceeding with the investigation in the crime of theft. Thereafter he has stated that the Applicant had given oral directions to bring Pandurang Dharma Patil and Parshuram Rama Patil for inquiry to the Police Station. If such directions were given by Accused Nos.1 and 2 both, verbally, then there is no reason for disparity to be shown to Applicant - Accused No.2 when Accused No.1 stands exonerated.
8. Be that as it may Accused No.2 was the Investigating Officer and therefore what is crucial is that whether any of the directions or instructions given by the Investigating Officer as alleged were delineated in the station diary or in any other relevant official record is not presented before the Court. The question before me is assuming that even on the instructions and directions of Accused Nos.1 and 2, suspects were brought to the Police Station, whether after they were brought if any entry was made in the Diary or record maintained at the Police Station. The answer to all these questions is “None”. The said departmental order thereafter records statement of another eye witness to the incident which is on the same lines. The conclusion of the said inquiry clearly records that Accused Nos.3 to 6 brought Bhagwan Rama Patil and Pandurang Dharma Patil to the Police Station and had beaten them mercilessly, before bringing them and detaining them. What is crucial to be considered here is that the fact that Bhagwan Rama Patil and Pandurang Dharma Patil were brought to the Police Station was not informed to the Applicant even though he was the I.O. in the case. Further conclusion has been arrived on the basis of statements recorded in the inquiry that Applicant was not even informed about the third degree treatment meted out to the deceased whether previously or in the Police Station ultimately leading to the death of Pandurang. The crucial eye witness Irfan Shaikh brought alongwith Bhagwan Rama Patil and Pandurang Dharma Patil has categorically stated that Applicant never presented himself at the place where he was detained in the Police Station. Another Police officer namely Police Sub-Inspector – Arun Mali who was on night duty on 28.09.1993 has also deposed that even he was not informed by the staff member i.e. the police constables who brought Pandurang Dharma Patil and Bhagwan Rama Patil to the Police Station on the night of the incident. Police Sub-Inspector – Mr. Arun Mali has deposed that he was posted on night duty in the Police Station on that same date. The said inquiry has concluded by returning a finding that no entry was made of having brought the deceased alongwith the other two accused in the Police station diary which is mandatory nor the fact was informed to the Investigating Officer i.e. the Applicant before. This evidence in the departmental inquiry of several eye witnesses to the incident on the intervening night of 28.09.1993 and 29.09.1993 is material and relevant. It is on record. All that the learned Trial Court has stated in the impugned order is that it has gone through the papers of investigation. If that be the case it ought to have found place in the impugned order, sadly it is not so. No purpose will be served after 22 years after having admitted the present Revision Application to remand it back for reconsideration, only because the order is as cryptic as possible. What is crucial and it goes against the case of prosecution is the fact that there is no material placed on record to show that Applicant before me had knowledge of the fact that the three persons were brought to the Police Station by Accused Nos.3 to 6 and going further that he had given any direction to bring them in for inquiry. What has transpired in the interregnum that all three arrested persons were meted out third degree treatment by Accused No.3 to 6, resultantly leading to death of one of them is in respect of which Sessions Case No.172 of 2000 was tried.
9. Prima facie on the basis of material available on record and cryptic reason given by the learned Trial Court in paragraph No.5 of the order dated 25.10.2002, I do not see any reason as to how the said reason can be made attributable to the Applicant before me without there being any prima facie material in support thereof. It is a different case that today the material which has been placed on record is pursuant to departmental inquiry which has been conducted. Had the papers in the departmental inquiry not been placed before the Court, it would have been difficult for this Court to ascertain the role of Applicant in the present case. The depositions and findings in the departmental inquiry corroborate the case of Applicant before me. If challenge is maintained to the order dated 25.10.2002, Mr. Mundargi in his usual fairness would submit that he would not like to challenge the findings returned in paragraph No.5 relating to discharge of Accused No.1. This conduct of Mr. Mundargi of pointing this out to the Court is appreciated by the Court, otherwise it would lead to anarchy, if the impugned order is quashed and set aside in its entirety. On the basis of the above observations and findings, impugned order dated 25.10.2002 is clearly unsustainable in law to the extent of rejection of Applicant’s discharge plea. The Applicant i.e. Accused No.2 deserves the same treatment and parity as that of Accused No.1 who has been exonerated, specifically in view of the fact that not only he was not informed about the bringing of three suspects to the Police Station by Accused Nos.3 to 6 but no instructions were given by him to them so as to indict his role in the death of one of the suspect due to third degree treatment whilst in custody.
10. In view of the above, impugned order dated 25.10.2002 is quashed and set aside to the extent of directions contained in paragraph No.6 and unumbered paragraph No.2 in the operative part of the impugned order. Resultantly, the discharge Application filed by Applicant – Accused No.2 in Sessions Case No.172 of 2000 stands allowed by Court. The Applicant – Mr. Siddappa Kashiraya Savli is hereby discharged from the offence chargesheeted against him.
11. With the above directions, the Criminal Revision Application stands allowed and disposed.
