Now, the question is whether detention of these three individuals in a specified place for the purpose of investigation would amount to an offence of wrongful confinement. There was a divergence of judicial opinion on the question whether Section 162, Criminal P.C., applied to a person suspected of having committed the crime. All doubt on the point was resolved by their Lordships of the Privy Council in Narayana Swami v. Emperor AIR 1939 PC 47. It can no longer be disputed that the words "any person" occurring in Section 161, Criminal P.C., which must be read in conjunction with Section 162, Criminal P.C., include any person who may subsequently be accused of the crime. The police officers were fully authorized to require the personal attendance of the suspects during the investigation. The absence of an order in writing as required by Section 160, Criminal P.C., was no doubt an irregularity. It would certainly have justified the failure or refusal of the suspects to obey the order, but it can have no effect when the irregularity was waived by them. At all events it is too trivial to be taken into account. There can be no question that the investigating officers were entitled to summon the suspected no less than others supposed to be acquainted with the facts of the case.
Disobedience of mere verbal order is not punishable.
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Disobedience of mere verbal order is not punishable.
Equivalent Citation: AIR1940Nag186
IN THE HIGH COURT OF NAGPUR
Decided On: 30.11.1939
1. Fourteen persons including the appellants Dinanath, Syed Shabir Hussain, Agardas and Chamru were tried in the Court of the Additional Sessions Judge, Raipur, on the charges of wrongful confinement of and causing grievous hurt to Hatau and his sons Gopal and Mudwa, the first named two persons on the additional charges of abetment of these offences. Ten of them were acquitted, and the first named two persons were found guilty of these offences punishable under Sections 330 and 330/109 and Section 348, I.P.C. and the last named two were convicted of the offences punishable under Section 330, I.P.C. Dinanath was sentenced to one year's rigorous imprisonment with a fine of Rs. 100 and to six months' rigorous imprisonment for causing simple hurt to Hatau and Gopal and Mudwa together respectively and further to six months' rigorous imprisonment for the offence of wrongful confinement of all the three individuals. Shabir Hussain was sentenced similarly to three terms of rigorous imprisonment of six months each. The sentences were directed to run concurrently in each case. Agardas and Chamru were each sentenced to two terms of six months for each of the offences of causing hurt to Hatau and to Gopal and Mudwa together, sentences being ordered to run concurrently.
2. Dinanath was the Circle Inspector at Baloda Bazar and Shabir Hussain was Sub-Inspector at Bilaigarh Station House. Agardas and Chamru were Kotwars of Sendras and Jhumka respectively. Some time prior to June 1938, it was known that several cases of house-breaking occurred at mouza Silyari in Sarangarh and other places within the limits of the Bilaigarh Station House. As they remained undetected the Circle Inspector and the Sub-Inspector undertook vigorous investigation, probably under pressure from higher authorities, of several crimes which will be particularised in the sequel when necessary. These two officers accompanied by a number of constables and Kotwars arrived at mouza Jhumka and stayed at the house of the malguzar, Bahoransao. On Wednesday, 1st June 1938 at 9 A.M. they conducted searches in the houses of Hatau and his four sons Gopal, Mudwa, Ramdas and Ramcharan and seized some property from their houses and some ornaments from the persons of their female folk and children. All these persons, and one Katik and the three informers named Sonu, Sarha and Dhirasai were taken to the malguzar's bada for the record of their statements. It is alleged that all of them were kept confined in the bada from 1st June 1938 to 6th June 1938 during which period Hatau and his two sons Gopal and Mudwa were, on 1st and 2nd June, subjected to violence in the form of trampling upon their thighs and branding them with fire-bricks with a view to extort confession or such other information as would lead to the detection of the crimes. The allegation is that while the Kotwars pinned each of the three suspects to the ground, the Circle Inspector trampled upon their thighs and branded them. The lower Court has negatived the allegation of the branding of Gopal and Mudwa. Upon this appeal the points for determination which arise for consideration are (1) whether these three individuals were wrongfully confined in the malguzar's bada between 1st June and 6th June; (2) whether they were subjected to maltreatment on 1st and 2nd June 1938 as described by the prosecution.
3. The admitted facts are that Hatau, Gopal and Mudwa, who will be referred to herein as suspects, as well as the informers Sonu, Sarba and Dhirsai were arrested at Jhumka at 5 P.M. on 6th June on the accusation of having committed house-breaking at villages Jamdarrha, Sarsiwa and Deoraha. They were all despatched to Baloda Bazar for being produoed before the Tahsildar (exercising magisterial powers) on the morning of 7th June. It appears that Hatau and his sons were sent in a body and they had to pass through Bilaigarh, Pooni, Matia, Katgi and Kasdol halting at these places. They arrived at Baloda Bazar on 10th June and were produced before the Tahsildar for a remand up to 21st June 1938. The remand was granted and they were kept confined in the lock-up. On 11th June when that officer left his Court to return to his home, his attention was attracted by the shouts of some of the suspects complaining of torture by the police. He had Hatau, Gopal and Mudwa taken out of the lock-up and on examination of their bodies he observed marks of violence. He forthwith sent a note to the A.M.O., Dr. Shetty, who examined them on the following day and found injuries. Hatau was admitted as an indoor patient as his condition appeared to call for special attention. On 19th June it assumed such gravity that Hatau had to be removed to the Victoria Silver Jubilee Hospital at Raipur where he eventually expired on 21st June 1938. The post-mortem examination was made by Dr. Abraham, the Civil Surgeon, Raipur. On the orders of the District Magistrate, Raipur, Mr. D.Y. Askhedkar, S.D.M. held a preliminary enquiry into the matter and found that the injuries found by Dr. Shetty had been caused to them while they were under the control of the police during the investigation from 1st June 1938 to 7th June 1938. This criminal proceeding owes its inception to the formal complaint lodged by that officer.
4. The question which calls for consideration is whether Hatau and his two sons were kept confined in the Malguzar's bada from 1st June to 6th June on which they were arrested. Gopal (P.W. 1), Katik (P.W. 13), Dhirsai (P.W. 15), Mudwa (P.W. 16), Ramdas (P.W. 17), Ramcharan(P.W. 18), Sonu (P.W. 48) and Sarha (P.W. 49) affirm that they were made to stay in the malguzar's bada during the time that the investigation was in progress and they were strictly guarded whenever they had to move out for purposes of nature. They are corroborated by their female relations, viz. Dhana (P.W. 3), wife of Mudwa, Mati (P.W. 4), daughter of Ramdas, Bundkuar (P.W. 11), wife of Gopal, and Mangli (P.W. 12), wife of Ramcharan, who agree in stating that Hatau and his sons were away from their houses staying in the bada during the whole period of the investigation. They are contradicted by Ramsingh Patwari (P.W. 38), Mohanlal, Sub-Inspector of Police, Basna (P.W. 39), Bahoransao (P.W. 42) and Jagmohan Singh (P.W. 45). Thus, there are three batches of witnesses. The first batch consists of persons who are all convicted in the cases of house-breaking and are consequently prone to lie against the police officers who brought their crimes to light and got them punished. Their relations were naturally interested in them. These circumstances indeed dictate caution in weighing their evidence which would become trustworthy in so far as it receives confirmation by the circumstantial evidence. Among the last batch of witnesses Jagmohan Singh (P.W. 45) who had been away from the village on Wednesday, that is 1st June, was called the next morning to Bahoransao's bada while Hatau and his sons were being questioned. He admits that Hatau was in fever eight days before his arrest and that admission invests his statement that he was moving about the village with doubt. Bahoransao (P.W. 42) and Ramsingh Patwari (P.W. 38) had evidently been victims of house-breaking and they would naturally be prejudiced against the criminals not to speak of their usually close association with the police. Both Ramsingh (P.W. 38) and Bahoransao (P.W. 42) speak about 5th June on which day they found Hatau and sons in the bada making their statements to the police.
5. It is urged that since the property was recovered from them and their confessions had been recorded on 2nd of June there was no necessity to detain them any longer. The answer is given by these witnesses who actually saw them making statements on the 5th. Why were they in the bada on the 5th? The explanation is traceable in the police diaries, which disclose that the investigation was not limited to the villages (Sarsiwa, Jamdarrha and Siliari) only but comprised others such as Muchhwalda, Deorah, Piperdola, Beladolah, Kusum-kundra and Balodi. In Ex. P-73 B, it is noted against date 2nd June 1938 as follows: "Further enquiry is being made about other undetected cases and property with these people. Halted at Jhumka." Against date 3rd June 1938, there is reference to Beladolah " Khan " case and it is noted "Further enquiry is being made to unearth the activities of these criminals of Jhumka." On the 4th it records information received from Katik against Hatau, Gopal and Mudwa. On the 5th it records the information given by Ponharu against them in regard to theft at Kusumkundra and Balodi. They were arrested on the 6th.
6. It is clear that the investigation covered much wider ground than three villages and the police suspicion was directed against Hatau and his sons in connexion with the thefts at other villages as well. That being so it is highly improbable that they would be allowed to remain at large. It is unnecessary to pursue the enquiry into other diaries. At the conclusion of the diary, Ex. P.40, even after the arrest of Gopal and Mudwa, it was noted that they were required in Crimes Nos. 35 and 51 of 1937. It has also to be borne in mind that they were all produced before the Magistrate for a remand up to 21st June. That leaves no room for doubt that the investigation involving these persons was not complete on the day of their arrest and that confirms the evidence of the first two batches of witnesses who say that they were detained in the bada since they had been brought there. Now, the question is whether detention of these three individuals in a specified place for the purpose of investigation would amount to an offence of wrongful confinement. There was a divergence of judicial opinion on the question whether Section 162, Criminal P.C., applied to a person suspected of having committed the crime. All doubt on the point was resolved by their Lordships of the Privy Council in Narayana Swami v. Emperor AIR 1939 PC 47. It can no longer be disputed that the words "any person" occurring in Section 161, Criminal P.C., which must be read in conjunction with Section 162, Criminal P.C., include any person who may subsequently be accused of the crime. The police officers were fully authorized to require the personal attendance of the suspects during the investigation. The absence of an order in writing as required by Section 160, Criminal P.C., was no doubt an irregularity. It would certainly have justified the failure or refusal of the suspects to obey the order, but it can have no effect when the irregularity was waived by them. At all events it is too trivial to be taken into account. There can be no question that the investigating officers were entitled to summon the suspected no less than others supposed to be acquainted with the facts of the case.
7. The question is: were the police legally empowered to detain the suspects during the whole period that the investigation lasted ? It may in view of the amendment of Section 157, Criminal P.C., be conceded that it was not imperative on them to arrest them as soon as they seized some property from their houses and elicited confessions from them. They had indeed a discretion in arresting them. This however does not fully answer the question. The police were entitled to get the suspects at the place of investigation and also to record their statements under Section 162, Criminal P.C., and further to defer their arrest at their discretion; but does all this power by necessary implication authorize the police to detain the suspects? Abdul Karim v. Emperor AIR 1930 Oudh 505 is relied on for the answer, but that is an authority which could well have been cited for the Crown. In that case the suspect was only taken to the police station in the course of an investigation that was being conducted by the Sub-Inspector and he was made to wait under a tree outside until the Sub-Inspector interviewed him. The learned Judge who decided the case particularly remarks "there is not the slightest suggestion that any restraint was placed," indicating what view he would have taken in that event. It is suggested that their presence at the bada was indispensable as they were required to be confronted with the statements made by others and identification of the seized articles, by keeping them aloof from disturbing factors. Some such view was forcefully advocated before the Police Commission (1903) on the plea of an unavoidable irregularity, but it was totally rejected in unequivocal terms as being altogether improper and as constituting a serious breach of the law. It was pointed out that such abuses as informal detention serve only to intensify the indifferent and hostile attitude of the people. It is in accordance with this principle that para. 757 of Section 7 (examination of suspects) of the Police Regulations 1937 explicitly provides:
When the suspect's examination is over, he must either be arrested or allowed to depart. Informal detention without arrest is prohibited.
8. It is urged that as they continued to stay in the bada in spite of their being left free to depart they must be deemed to have stayed there voluntarily. It is true that there was no physical impediment put in their way although there is evidence to indicate that they were being shadowed whenever they went out for purposes of nature. The suspects were later on proved to be criminals but their wickedness could not instil into them the knowledge of their own legal rights and endow them with the nerve to protest against any irregularity. Regard being had to their stark ignorance, illiteracy and low station in life, it was manifestly impossible for them to withstand the will of the police officers. It must therefore be presumed that if they stayed in the bada, they did so in obedience to an express or implied order of the police officers (in the absence of a clear and convincing evidence that they were asked to go away after their examination). They therefore stayed there against their will. They submitted to the will of the police officers because they persuaded themselves that they must. That is no willingness. When the restraint is imposed by a will or power exterior to one's own, that restraint is unlawful: see Bird v. Jones (1846) 7 QB 742. It must therefore be held that there was wrongful confinement, in however technical sense it may be. (After considering certain evidence his Lordship concluded as follows.) Taking a cumulative view of the evidence as a whole, the conclusion is irresistible that the injuries found on the persons of Hatau, Gopal, and Mudwa were caused in the malguzar's bada while they were under the control of the police, notwithstanding certain discrepancies, exaggerations and apparent contradictions. The allegations of repeated torture on successive days up to their arrest and the description of the part played by Dinanath are illustrations of exaggerations which can well be discredited. But underneath this froth there lies the substance of truth. They were subjected to maltreatment on the very day (1st June) on which they were brought into the bada (the precise time is immaterial) as a consequence of which each of the sufferers made a full and frank confession on the next day (2nd June) so as to enable the Circle Inspector to make his report to the D.S.P. (Ex. P-79A) on 3rd June in somewhat glowing terms:
Sub Inspector, Bilaigarh, and his staff and some kotwars and a malguzar worked well with us in Deora Khan case for whose reward....
9. The corporeal violence must have been directly applied by Agardas and Chamru and others under the orders of the Circle Inspector with the full concurrence of the Sub-Inspector, probably in their very presence. The Sub-Inspector was, in point of law, as much responsible for the violence as the Circle Inspector since as a police officer he was under a legal duty to prevent the infliction of torture on those who were in their custody, and his failure to discharge that duty makes him a party to the crime. As pointed out in Queen-Empress v. Latifkhan (1896) 20 Bom 394 a policeman who stands by, acquiescing in an assault on a prisoner committed by another policeman for the purpose of extorting confession or information leading to the detection of the crime is guilty of the offence punishable under Section 330, I.P.C. The maxim "Respondent Superior" has no application in such a case.
10. I have eliminated from consideration certain compromising admissions of fact made by the police officers in the course of the inquiry made by Mr. Askhedkar, S.D.M. It was not under Section 202, Criminal P.C., or under Section 159, Criminal P.C. It purported to be, as stated by the Magistrate himself in the witness-box, an inquiry under Regulation 737. Such an inquiry should have been conducted by a police officer. The Magistrate however would not cease to be a Magistrate because he was doing the work of a police officer under the orders of the District Magistrate as the head of the police. Indeed, he exercised the powers of a Magistrate as he administered oath to them. The statements made by them must be deemed to have been recorded under Section 164, Criminal P.C. In view of the exposition of the law made by their Lordships of the Privy Council in Nazir v. Emperor AIR 1936 PC 253 (2), they could not be used against the accused persons unless they had been formally recorded as confessions under Section 164 read with Section 364, Criminal P.C. Reference was made to authorities such as Barindra Kumar v. Emperor (1910) 37 Cal 467, Emperor v. Banarsi (1924) 11 AIR All 381, Golam Mohammad Khan v. Emperor (1925) 12 AIR Pat 536, Abdullah v. Emperor (1933) 20 AIR Lah 716, Queen-Empress v. Karigowda (1895) 19 Bom 51, Emperor v. Jehangir AIR 1927 Bom 501, Karu v. Emperor (1987) 24 AIR Nag 254 and Sardar Miya v. Emperor (1937) 24 AIR Nag 257 in the course of the debate at the bar but it is unnecessary to discuss them as they do not lend any assistance in the present case which is of an anomalous kind.
11. It is true that the Circle Inspector has a long record of meritorious service to his credit. That record also shows that he did not shrink from taking drastic steps against his subordinates who resorted to such forbidden methods. That is indeed praiseworthy but it is not cogent enough to overcome the effect of the facts proved. The conclusion is fully established that Hatau and his sons were subjected to violence on 1st June 1938 and it is an admitted fact that they confessed on 2nd June. It is obvious that the object was to extort confession or to extract information leading to the detection of the series of reported crimes then under investigation. Nor can the appellants plead good faith. It is true that they were inspired by the admirable motive of discovering the truth but the end cannot justify the means. That doctrine, which is of doubtful validity even in the abstract region of moral philosophy, is totally rejected in the sphere of law. Law does not tolerate the achievement of a lawful purpose by unlawful means, i. e. those which it positively prohibits. The defence of good faith is expressly excluded by Section 79, Penal Code, in regard to a mistake on a point of law. That the police, in the strenuous task of investigation, do, in exceptional cases, succumb to the momentary temptation of employing coercive methods, may well be set down to innate human frailty but it must not be overlooked that it is to restrain such impulses that Section 330, Penal Code, came to be enacted. That Section is manifestly directed against police officers who, while engaged in the detection of crimes, are prone to subordinate their detective skill to the alluring but treacherous means of torturing the suspects to extract clues to guide their course of investigation. The conviction is proper and must be affirmed. It may not be out of place to point out here that the law regards human life and limb, liberty and property, as sacred and that it seeks to protect these fundamental, if not natural, rights of every human being by providing penalties for their infringement. The principle which the law seeks to uphold in regulating the relations between individual operates also in favour of the individual in relation to State. The officers of the State, except in so far as they are invested with authority by positive enactments or rules and regulations made there-under, cannot encroach on and curtail those essentially human rights without inviting the vengeance of law. This principle is embodied in the various provisions contained in the criminal law and the police-regulations which are designed to ensure-stringent control over the police officers engaged in the unquestionably arduous task of investigation of crimes. The infraction of these salutary provisions, proceeding either from temperamental harshness, or a desire to win the tributes of superior officers or to avoid censure for slackness can in no circumstances be excused. The form of criminal trial is not inquisitorial but accusatory. The investigation must therefore be directed not to extract admissions from the suspect but to the discovery of evidence, and let the suspect explain, if it tends to prove his guilt. The investigating officers, in their own interest, would be well advised to arrest the suspect as soon as they are in possession of some relevant evidence and avoid informal detention which is only a euphemism for confinement.
12. As to the sentence, I see no reason to interfere. It is indeed a tragedy that these two police officers, particularly Dinanath, should have lapsed into this atrocious blunder. It cannot be overlooked that the law treats such blunders as crimes not only because they involve liberty and safety of life and limb of the subjects but also because it engenders general contempt for the administration of law itself. The penalty awarded to those who find themselves in the situation of these two police officers serves as a deterrent. The sentences themselves are not unduly severe. The appeal is dismissed. The appellants will surrender to their bail and serve their respective sentences.
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