Bombay high court: Police officer cannot be compelled to disclose the name of informant

 It is a cardinal principle of Criminal Jurisprudence that a police officer cannot be compelled to disclose the name of informant. It is based on sound principle of jurisprudence. Furthermore, wisdom and common life prudence tells that a police officer should not be compelled to expose his informant so as to endanger his life, personal safety or personal interest. If police officers are compelled to disclose the names of the informants, the informants would be put to jeopardy because they would be exposed in criminal world. Another point which needs to be considered in this context is that, if police officers are compelled to disclose the names of the informant, they would not be getting information freely and truthfully informants would be shy in giving the information, and would not open their hearts in giving information. The result would be that the information would be partly true and partly false, misguiding, restricted, concealed and not from the heart. That would be totally detrimental to the society at large and social interest in general. The learned Additional Sessions Judge has blamed P.S.I. Koli 'for not' disclosing the name of the informant for coming to the conclusion that the complaint which has been filed by him against deceased Jalinder Hogade and Yashwant Vibhute and their associates is false.

Bombay High Court

Babasaheb Dadasaheb Koli vs State Of Maharashtra on 29 August, 2002

Equivalent citations: (2003) 2 BOMLR 283, 2003 (3) MhLj 366

Bench: J Chitre

1. The petitioner is hereby assailing correctness, propriety and legality of the judgment and order passed in Criminal Revision Application No. 66 of 2000 (Old No. 227 of 1998), by the Additional Sessions Judge, Karhad.

2. Some facts need to be mentioned for the purpose of unfolding the controversy and existence of this petition. The petitioner Babasaheb Koli, P.S.I. working in Karhad City Police station at relevant time, received information on 29-4-1997 at about 11 p.m. that some persons were gambling in a public place, when he was in Annapurna hotel along with his staff members, constable Salvi, BK. No. 2106 and constable Katkar Bk. No. 618, driver Shinde Bk. No. 225. Driver Shinde took his meal and others took tea and proceeded towards a tin shed (Tapari) near the place known as Kolhapur Naka. The said place was being used as office by Mathadi Kamgar at Karhad. The Petitioner Koli parked his jeep at some distance from the said tin shed (Tapari) and proceeded towards said tin shed. It is his contention that he saw some rickshawmen gambling by cards and money. One Yashwant Vibhute, (who had lodged complaint against Koli, wherein he alleged that Koli had murdered Jalindar Hogade) were amongst those persons. Petitioner Koli contended that he seized the packet of playing cards, money-used as instrument for gambling by apprehending those persons. He contended that at that time he noticed that deceased Jalindar Hogade was ill and therefore, he took him to Civil Hospital, where he was declared dead. He further contended that as, he had taken said Jalindar Hogade to Civil Hospital, he was late in lodging the complaint against Jalindar Hogade, Yashwant Vibhute and others who were found gambling in public place. He further contended that he was under the surveillance of his superior police officers and therefore, also he was late in filing the complaint against deceased Jalindar Hogade, Yashwant Vibhute and their associates in respect of the said offence of gambling in public place, which was punishable under provisions of Section 12(a) of Bombay Prevention of Gambling Act, 1987 (hereinafter referred as Gambling Act for convenience).

3. Yashwant Vibhute alleged in his complaint that P.S.I. Koli (present petitioner), pulled deceased Jalindar and caught his hair and hit him by knee on his scrotum, which injured him seriously, as the result of which, he died. Yashwant Vibhute had alleged in the said complaint that P.S.I. Koli, the present petitioner had a motive to kill deceased Jalinder Hogade because he had conspired with the wife of Jalinder Hogade, who wanted to get the possession of rickshaw, which Jalindar Hogade was driving and which his wife wanted through the help of P.S.I. Koli. He further alleged that on account of that, P.S.I. Koli, on false accusation of gambling in a public place assaulted deceased Jalindar Hogade and murdered him.

4. The death of Jalindar Hogade created a commotion in Karhad City and on account of that commotion, as contended by P.S.I. Koli, he was late in lodging the complaint against Jalindar Hogade, Yashwant Vibhute and their associates who were gambling in a public place.

5. The commotion created on account of death of Jalindar Hogade was the reason of shifting the investigation from local police to Crime Branch. Crime Branch, after doing necessary investigation registered a crime against P.S.I. Koli for committing murder of Jalindar Hogade.

6. P.S.I. Koli, present petitioner, raised objection for taking cognizance of that murder case against him, by the Court, by contending that he was having the protection of law in context with said murder case because, at the relevant time he was discharging his duty as a police officer.

7. The Crime Branch Officer, and the State of Maharashtra moved an application, after necessary investigation in respect of the allegation of P.S.I. Koli, that deceased Jalindar Hogade, Yashwant Vibhute and their associates were gambling in a public place at the relevant time in the said night and prayed for issuance of order granting "B" Summary and declaring that the complaint which was filed by P.S.I. Koli against deceased Hogade, Yashwant Vibhute and their associates was a false complaint. The State of Maharashtra and prosecution contended that the investigation revealed the material which was showing that P.S.I. Koli filed that complaint falsely against deceased Jalindar Hogade, Yashwant Vibhute and their associates for creating his own defence.

8. It was argued before the learned Magistrate in that context that at the time of proceeding towards Kolhapur Naka area, P.S.I. Koli had not informed his colleagues P. C. Salvi, Katkar and driver Shinde that he had received information that some persons were gambling in a public place near said Kolhapur Naka and therefore, he was going to effect a raid. It was contended on behalf of the State that while proceeding to that area, P.S.I. Koli had not taken the panch witnesses with him, which shows that there was no intention to effect any raid as claimed in his complaint filed against those persons. It was also contended that no panchanama in respect of recovery of pack of cards and money was drawn on the spot. According to the State, all these things in addition to the delay in filing complaint showed that the said complaint was false. P.S.I. Koli contended in that context that as he had taken said Jalindar Hogade to hospital for saving his life and giving him medical aid, and as he was under the surveillance of his senior police officer he was late in filing the said complaint against Jalindar Hogade, Yashwant Vibhute and others. It was also contended by Shri Koli, P.S.I., that for saving his own skin, Yashwant Vibhute has filed this false complaint against him alleging that he committed the murder of deceased Jalindar Hogade by assaulting him, more particularly on scrotum. P.S.I. Koli contended that the complaint which was lodged against deceased Jalindar Hogade, Yashwant Vibhute and others in respect of an offence punishable under the provisions of Gambling Act was true and correct and therefore, the prayer for issuing "B" Summary deserves to be dismissed.

9. The learned Magistrate, after hearing the submissions advanced on behalf of litigating parties, concluded that, there was no cause for granting "B" Summary order and declaring that the complaint filed by P.S.I. Koli was false. He directed further investigation in context with the complaint which was lodged by P.S.I. Koli against Jalindar Hogade, Yashwant Vibhute and others. The learned Magistrate refused to grant "B" Summary order as prayed for by the State.

10. The said order was challenged by the Slate by filing Revision Petition which was decided by Additional Sessions Judge, Karhad, wherein he observed that the investigation touching the complaint filed by Yashwant Vibhute against P.S.I. Koli in respect of the alleged murder of Jalindar Hogade was disclosing that P.S.I. Koli had molive to commit the murder of Jalindar Hogade, because he was in conspiracy with the wife of deceased Jalindar Hogade, who wanted to get his rickshaw by the help of P.S.I. Koli. The learned Additional Sessions Judge pointed out that before proceeding to that spot, P.S.I. Koli did not inform his colleagues about the information which was received by him in respect of said act of gambling in a public place. He also pointed out that no panch witnesses were taken with him by P.S.I. Koli, when he was going to said spot for effecting the raid. The Additional Sessions Judge, also pointed out that P.S.I. Koli did not disclose the name of the informant who gave that information to him when he was at Annapurna Hotel with his colleagues. He also pointed out that the complaint which was filed by P.S.I. Koli was late and therefore, the learned Magistrate had committed the error in passing the said order by ignoring all these facts, He set aside the judgment and order, which was passed by J.M.F.C., Karhad and granted "B" Summary, in favour of the State and against P.S.I. Koli and the judgment and order of the learned Additional Sessions Judge, Karhad in that context is the subject matter of challenge in this Writ Petition.

11. Shri Shirish Gupte, Counsel appearing for the petitioner, submitted that it was not proper for the learned Additional Sessions Judge, Karhad to draw such inference against the present P.S.I. Koli, when he was dealing with the prayer by the State for grant of "B" summary order declaring that the complaint, which was filed by P.S.I. Koli against the deceased Jalindar, Yashwant Vibhute and others was a false complaint. Shri Shirish Gupte submitted that it was a premature stage to draw such conclusion. He further submitted that the learned Additional Sessions Judge committed the error of relying on the material which was pertaining to the murder case which was filed by Yashwant Vibhute against P.S.I. Koli, while deciding the prayer made by the State for grant of "B" Summary order. He submitted that the said judgment and order is not correct, proper and legal and therefore, it needs to be set aside and the judgment and order passed by J.M.F.C., Karhad refusing to grant "B" summary to the State needs to be restored.

12. Shri Saste, A.P.P. for the prosecution and State submitted that the learned Additional Sessions Judge was right in drawing this conclusion on the material surfaced on account of investigation done by the Crime Branch. He submitted that the investigation by the Crime Branch revealed that the complaint which was filed by P.S.I. Koli was nothing but a falsehood and it was his attempt to protect himself from the illegal act committed by him by which he had committed the murder of deceased Jalindar Hogade. He prayed that the present Writ Petition be dismissed.

13. The investigation done in respect of the complaint which was filed by Yashwant Vibhute against P.S.I. Koli was totally different from the complaint which has been filed by P.S.I. Koli against deceased Jalindar Hogade, Yashwant Vibhute and their associates in which it has been alleged that they were gambling in a public place. It is pertinent to note that Section 12(a) of Gambling Act provides that a police officer may apprehend and search without warrant - (a) any person found gaming or reasonably suspected to be gaming in any public street, or thoroughfare, or in any place to which the public have or are permitted to have access or in any race-course. It is different from the provisions of Section 6 of Gambling Act, which indicates that it shall be lawful for a Police Officer -(i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and (ii) elsewhere not below the rank of Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and (iii) Without prejudice to the provision in Clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate, (a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house, (b) to search all parts of the house, room or place which he has have so entered, when he shall have reason to suspect that any instruments of gaming are concealed therein, and also, the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to take into custody and bring before a Magistrate all such persons, (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming and which are found therein. Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the Superintendent of Police or Assistant or Deputy Superintendent of Police concerned is satisfied upon making such inquiry as he may think necessary, that there are good grounds to suspect the said house, room or place to be used as a common gaming house.

14. Thus, the provisions of Section 12(a) of Gambling Act empowers a Police officer to apprehend, if he finds necessary to do so as it has been indicated by word "may" and search if he so desires without warrant (emphasis provided) any person found gaming or reasonably suspected to be gaming, in any public street or thoroughfare or any place to which the public have or are permitted to have access. Therefore, when P.S.I. Koli, as he contended, had received an information from his informant when he was in Annapurna Hotel that some persons are gambling in a public place, he was empowered to visit that spot either for verifying such information or for effecting a raid. He could have verified the said information and thereafter could have formed his opinion, whether he should effect the raid or not. That could have been done by him by visiting the said spot directly or by remaining at some distance from it and by watching the activities of concerned persons. Therefore, he was not under the obligation to disclose the information to his colleagues P.C. Salvi, Katkar, and driver Shinde, though they might have been present with him in Annapurna Hotel where the driver Shinde took his dinner and others took tea. On account of that only it cannot be said that the said complaint, which has been filed by P.S.I. Koli, happens to be false and that cannot be said to be so by placing reliance on the investigation done in another crime which is against P.S.I. Koli. Needless to say, the investigation in that matter would be towards finding material against P.S.I., Koli to establish that he is guilty of committing murder of deceased Jalinder Hogade. That would be totally one sided investigation. At least, that could not be tilting towards the contention raised by him and therefore the material which has surfaced by the investigation done in that case would be definitely against the interest of P.S.I. Koli and would be prejudicial to him. At this juncture it is necessary to note that said complaint has been filed by a person who has been indicted as accused by P.S.I. Koli and the said person has filed a complaint against P.S.I. Koli alleging that he had committed murder of his associate who was also gaming in a public place as alleged by P.S.I. Koli. Therefore, the Additional Sessions Judge, Karhad was not justified in coming to the conclusion on the material surfaced in the investigation done by another agency against the interest of P.S.I. Koli. How in that investigation the said investigating officer would be considering the contentions raised by Shri Koli against Yashwant Vibhute? The learned Additional Sessions Judge has misdirected himself and has done an enquiry which he was not suppose to do in his revisional jurisdiction in respect of the prayer made by the State for grant of an order granting "B" summary in its favour and against P.S.I. Koli.

15. It is a cardinal principle of Criminal Jurisprudence that a police officer cannot be compelled to disclose the name of informant. It is based on sound principle of jurisprudence. Furthermore, wisdom and common life prudence tells that a police officer should not be compelled to expose his informant so as to endanger his life, personal safety or personal interest. If police officers are compelled to disclose the names of the informants, the informants would be put to jeopardy because they would be exposed in criminal world. Another point which needs to be considered in this context is that, if police officers are compelled to disclose the names of the informant, they would not be getting information freely and truthfully informants would be shy in giving the information, and would not open their hearts in giving information. The result would be that the information would be partly true and partly false, misguiding, restricted, concealed and not from the heart. That would be totally detrimental to the society at large and social interest in general. The learned Additional Sessions Judge has blamed P.S.I. Koli 'for not' disclosing the name of the informant for coming to the conclusion that the complaint which has been filed by him against deceased Jalinder Hogade and Yashwant Vibhute and their associates is false.

16. The learned Additional Sessions Judge also blamed P.S.I. Koli for the delay in filing the complaint. The recent trend is also that all citizens including police officers should give preference to save the life than following technicalities of duties attached to their post and their official performance. It is well accepted now a days that it is foremost duty to take ill person, may be offender to the hospital and to make efforts for saving his life instead of engaging in technicalities. As contended by P.S.I. Koli because he decided to take deceased Jalindar Hogade to Civil Hospital for giving him medical help and saving his life, it caused delay in lodging complaint against Jalindar Hogade, Yashwant Vibhute and others. When explanation has been given by P.S.L Koli, how that can be thrown as substanceless at the threshold of premature and initial stage? The answer from all corners would be unequivocal "No".

17. Furthermore, P.S.I. Koli has contended that he was under surveillance of Senior Police Officers and that also caused delay in lodging complaint. That cause has to be probed at proper stage and that is not to be dismissed at initial and premature stage and P.S.I. Koli is to be called a liar and his complaint is to be stamped as false one and "B" summary is to be granted against him.

18. It is also important to note that this matter is exhibiting two incidents one a complaint which has been filed by P.S.I. Koli against deceased Jalindar Hogade, Yashwant Vibhute and their associates in respect of alleged offences punishable under Gambling Act and other pointing an indicator towards allegation made by Yashwant Vibhute, an accused in that case, that P.S.I. Koli has committed murder of his associate deceased Jalindar Hogade, who was engaged as per allegations of P.S.I. Koli in gambling in a public place. It means that two counter cases are coupled with each other, tangled with each other and in such a situation prudence demands that none of them should be dismissed at initial stage and at the threshold by stamping either of them as a liar. The Courts should be permitted to apply their judicial mind and to proceed further for the purpose of enquiring the truthfulness of it, in the trial. What learned Magistrate has done? He has directed the police machinery to go for further investigation and has rejected the prayer of the State for granting "B" summary.

19. The learned Additional Sessions Judge was performing his revisional jurisdiction and therefore, he was to see the legality of the order which was assailed before him under the restricted approach as contemplated by the provisions of Sections 397, 398, 399 of Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience). The learned Additional Sessions Judge has gone beyond his jurisdiction and therefore, landed in error of passing the judgment and order which has been assailed by this writ petition.

20. Even while exercising the jurisdiction of superintendence, as envisaged by provisions of Section 227 of Constitution of India, this Court is bound to quash the order, which is not legal and consistent with the provisions of law. While exercising the power of superintendence, this Court is entitled to quash that order which has been passed by subordinate Court by going beyond its legal jurisdiction. What is inconsistent with material on record, what is inconsistent with the provisions of law and normal exercise of the jurisdiction by subordinate Court cannot be permitted to survive for any moment. That has to be quashed by this Court by exercise of its jurisdiction.

21. Thus, this petition stands allowed. The order which has been passed by the Additional Sessions Judge, Karhad which has been assailed by this petition stands set aside and quashed. The judgment and order which has been passed by J.M.F.C., Karhad stands restored. That Court is at liberty to exercise its lawful jurisdiction in proceeding further in view of the order, which has been passed but of course in accordance with the law and consistent with the material which can be considered lawfully.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.