The need of self preservation has its root in the doctrine of
necessity.
The right of self defence is therefore basis of necessity and
without such necessity a right to resort thereto does not exist. There are
limits within which the right of private defence can be exercised. The
policemen are public servants. There is no right of private defence against
an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant acting
in good faith under colour of his office, though that act may not be strictly
justifiable by law. Thus, when a public officer acts bona fide under colour of
his office, right of private defence cannot be exercised against him though
his act may not be strictly justifiably by law.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 33 OF 2012
GIRIDHAR DEU DEVSEKAR, Vs STATE OF GOA
A.P. LAVANDE &
U. V. BAKRE, JJ.
Dated;
24th June,2013.
Citation;2013 CRLJ(NOC) 561 bombay,Goa
Mr. Shyamsunder Hadfadkar, Junior Engineer, North Goa Zilla
Panchayat has lodged report dated 22/04/2006, at the Mapusa Police
Station, inter alia, alleging as follows :
During the month of March, 2006, they had undertaken the
work of construction of pathway from the house of Ramakant Kalangutkar
at Satarshet in Aldona constituency and almost 80% of the work was
completed in all
respects and only one strip of pathway leading to the
house of Ramakant Kalangutkar was remaining.
This pathway runs
between the existing compound wall of Mr. Giridhar Devsekar and Mr.
Santan Fernandes. On 22/4/2006 at around 09.00 hours, they started the
work of construction of the said pathway and the complainant alongwith
Zilla Panchayat member by name Shri Freddy Fernandes and Material
Supplier by name Arjun Aroskar along with labourers were present at the
site.
At that time, wife of Mr. Giridhar Devsekar along with her two sons
and one daughter came there and started quarreling with them and
stopped the ongoing work and threatened them with dire consequences.
Mr. Shyamsundar Hadfadkar then contacted Mapusa Police Station and
requested for police assistance as there was likelihood of law and order
problem.
Mapusa Police headed by P.S.I. Prajyot Fadte and lady Police
Constable and Constables came to the spot after which the wife and
daughter of Giridhar Devsekar started giving bad words to the police and to
all of them and the daughter of Giridhar Devsekar came with one wooden
danda and opposed the work. Since the situation was going out of control
more police force was requested and P. I. Mr. C. L. Patil and LPSI Devyani
Ambekar along with two constables came to the spot.
The Police
Inspector requested both the parties to show the property documents and
at that time one of the sons of Giridhar Devsekar went inside the house and
came out with a camera and koita and all these four persons started
quarreling with police and with the complainant and others and the women
slapped and kicked some of the police persons and the boy who was
carrying koita
Constable and
threw the same in their direction which hit
luckily only his pant was torn.
a
Police
Thereafter, the police
arrested all the persons except the boy who threw the koita since he ran
away from the spot. On inquiries, the names of the said four persons were
known as (1) Smt. Laxmi w/o. Giridhar Devsekar (2) Kum. Vrinda d/o.
Giridhar Devsekar (3) Mr. Vikram s/o. Giridhar Devsekar and (4) Mr. Ravi
s/o. Giridhar Devsekar.
It was Ravi Devsekar who has ran away from the
scene after throwing koita at them.
5.
Upon the above report, F.I.R. No. 82/2006 came to be registered at
Mapusa Police Station, for offence punishable under Sections 307, 353,
506(ii), 152 and 504 r/w Section 34 of I.P.C.. Investigation was carried out.
Statement of various witnesses were recorded. The injured policemen were
referred to the hospital. The koita was attached. Upon completion of the
investigation, charge Sheet No. 41/2009 was filed in the Court of Judicial
Magistrate, First Class, Mapusa, against the petitioners for offences
punishable under Sections 307, 353, 506(ii) and 504 read with Section 34
of I.P.C. This charge Sheet came to be registered as Criminal Case No.
85/S/2009/E.
6.
Since the offence punishable under Section 307 of I.P.C. was
exclusively triable by the Court of Session, by order dated 30/9/2010, the
learned J.M.F.C., Mapusa committed the case to the Sessions Court, North
Goa. The case was registered as Sessions case No. 36/2010. The learned
Session's Judge, North Goa, Panaji heard both the parties and held that
there is no material for framing charge under Section 504 of I.P.C., against
any of the petitioners. She held that the material on record reveals that
there is prima facie material to frame charge against accused no. 3-Vikram
and accused no. 4-Ravi (the petitioners of Writ Petitions No. 113 of 2011
and 114 of 2011) for offences punishable under Sections 307, 353 and
356(ii) read with Section 34 of I.P.C.. It was held that the offence under 307
of I.P.C. has not been made out against accused no.1–Laxmi and accused
8
no.2–Vrunda and therefore they are entitled to an order of discharge from
the proceedings.
The learned Sessions Judge, however,
added that the
State shall be at liberty to proceed against said Laxmi and Vrunda for
committing offences punishable under Sections 353 and 506(ii) read with
Section 34 of I.P.C., before the J.M.F.C. , Mapusa.
7.
Accordingly, in Sessions Case no. 36 of 2010, charge has been
framed against the petitioners namely
Vikram and Ravi for offences
punishable under Sections 353, 307 and 506(ii) of I.P.C..
A separate case
under C. C. No. 188/S/2011 has been filed before the J.M.F.C. (E) Court at
Mapusa against the petitioners namely Laxmi and Vrunda
for offences
punishable under Sections 353 and 506(ii) read with Section 34 of I.P.C..
8.
Case of the petitioners, in short, is as follows:
Mr. Giridhar Devsekar has purchased a property bearing survey
no. 15/20, by Sale Deed dated 02/06/1987, situated at Aldona, for
construction of house. Mr. Giridhar completed construction of house in the
said plot, in the year 1995. There is no access available, as a matter of
right to anyone, through the said plot.
On 11/04/1991, Mr. Ramakant
Kalangutkar, the owner of plot bearing survey no. 15/7, entered into an
agreement with the owners of survey no. 15/18 situated at the Western
boundary of survey no. 15/20 by which agreement Mr. Ramakant purchased
easementary access of the width of one metre through eastern bordering
9
strip of survey no. 15/18, to go to the property bearing survey no. 15/7
situated on the northern boundary of survey no. 15/18.
In survey no.
15/7, Ramakant had already constructed a house prior to the year 1991.
The said survey no. 15/7 is situated at some distance on the north-western
side of Survey no. 15/20, intervened by survey no. 15/19 in between.
On
29/04/1994, Mr. Giridhar Devsekar obtained construction license for
construction of compound wall around the house constructed by him in
survey no. 15/20 between 1991 to 1995.
In the year 1995, Ramakant
Kalangutkar started obstructing construction of compound wall on the
western boundary of survey no. 15/20 and claiming one metre wide access
on the western boundary stretch of survey no. 15/20, which never existed.
Mr.
Giridhar
Devsekar
lodged
complaint
Ramakant at Aldona Police Outpost.
dated
12/01/1995
against
On 13/01/1995 Mr. Devsekar made a
complaint to Mapusa Police Station and also Aldona Police Outpost against
Ramakant. Again on 14/5/1995 and on 15/05/1995, Mr. Devsekar lodged
complaints against Ramakant at Aldona Police Outpost. On 18/05/1995, Mr.
Devsekar filed application before the Mamlatdar of Mapusa claiming police
protection against Ramakant and for constructing the compound wall.
11/03/1996, Mr. Giridhar Devsekar
filed
On
Regular Civil Suit No. 31/96
against the said Ramakant Kalangutkar and his wife in order to restrain
them from interfering
with the construction of the compound wall.
By
Decree dated 01/12/2003, the said Regular Civil Suit No. 31/1996 was
decreed and the petitioners were permitted to construct the compound
10
wall after leaving one metre wide access on survey no. 15/20.
Mr.
Devsekar filed Regular Civil Appeal No. 225/2003 challenging the decree
dated 01/12/2003 to the extent of permitting the construction of compound
wall by leaving one metre wide access on the Western boundary.
26/05/2005, North Goa Zilla Panchayat
Fernandes
On
member by name Freddy
proposed various constructions of
compound wall near the
house of Ramakant Kalangutkar declaring that the work is on public place
and for benefit of members of public.
Committee of North Goa Zilla Panchayat
pathway near the house of Ramakant
Rojgaar Yojana (SGRY).
On the same day the Standing
resolved that construction of
be done under Sanjay Gandhi
By judgment dated 17/06/2005, Regular Civil
appeal No. 225/03 was allowed and condition of one metre wide access on
the western side of survey No. 15/20 was set aside and Ramakant
Kalangutkar and his wife were restrained from interfering with the
construction of compound wall on the western side.
Ramakant and his
wife, however, filed the Second Appeal No. 95 of 2005 against the said
order, which has been admitted on 01/09/2005 and the operation of the
decree dated 17/06/2005 of the First Appellate Court has been stayed by
maintaining the direction given by the Trial Court in the Decree dated
01/12/2003.
Therefore, the petitioners were permitted to construct the
compound wall after leaving one metre wide
boundary of their property.
space on the Western
However, that does not
entitle anyone to
assume that one metre wide pathway is available for public use or for
constructing pathway within the said space of one metre width.
9.
Further the case of the petitioners is as follows:-On 28/09/2005
the District Rural Development Agency (DRDA) conveyed its administrative
approval for the work of construction of pathway near Ramakant's house at
an estimated cost of Rs. 1,94,810/- inter alia, under condition that
ownership documents of the property and proper N.O.C. from the owner be
obtained before the commencement of the work and that such N.O.C.
should be irrevocable and should be in the affidavit form on Rs. 20/- stamp
paper to be registered before Notary/Executive Magistrate. Therefore, it
was necessary and mandatory to obtain N.O.C. from the petitioners,
authorising construction of pathway through the said one metre wide space
permitted by the Trial Court, before commencing the construction of
pathway through the property and anyone commencing work in the
property, without such N.O.C. shall be guilty of criminal trespass thereby
giving legal right to the petitioner to obstruct such work by way of right of
private defence to the property which constitutes no offence in terms of
Sections 96 and 97 of I.P.C.
On 08/04/2006 that is on a second Saturday
and a holiday, at about 11.00 a.m., Zilla Panchayat member Freddy
Fernandes came to survey no. 15/20 with contractor by name Arjun Aroskar
and two police constables
one by name Bhagat
and instructed the
contractor to start the work but was obstructed by one of the petitioners
namely Vrunda.
At that time, the other petitioners were abused and the
12
stones which were brought were kept in the near-by property with an
intention to start the work. On 10/04/2006, Mr.
Giridhar Devsekar filed
appeal under Sections 177, 178 and 201-A of the Goa Panchayat Raj Act,
1994 against the local Village Panchayat, Zilla Panchayat and the
contractor namely Arjun Aroskar for restraining them from constructing the
access through survey no. 15/20.
On 12/04/2006, Mr. Devsekar lodged
complaint with the Incharge of Mapusa Police Station against Freddy
Fernandes for forcibly trying to construct access in his property and for
showering filthy words.
On 13/04/2006, the local Panchayat requested
the Chief Officer, North Goa Zilla Panchayat to direct the contractor to
stop the intended work in survey No. 15/20 in order to maintain peace and
harmony amongst the neighbours.
10.
It is further alleged by the petitioners that: On 22/04/2006, ten
policemen, headed by P.S.I. Prajyot Phadte
and Freddy Fernandes,
complainant Shyamsundar Hadfadkar , Contractor Arjun Aroskar and his
workers came to survey no. 15/20 and started bringing stones into the
property to which the petitioners objected.
In the meantime, more
policemen came to the site in another police jeep. The Police Inspector Mr.
Patil checked the Court papers and stated that the petitioners have not
obtained any stay order from the Director of Panchayats and therefore the
work can proceed. All the petitioners, except Vikram, were arrested when
they insisted that work should be stopped. The said three petitioners were
13
taken to Police Station at Mapusa and were detained and work of
construction of pathway thereafter continued and was completed past
midnight.
Pursuant to the complaint lodged by
Junior Engineer, Mr.
Shyamsundar Hadfadkar, F.I.R. was registered and charge sheet was filed.
The said charge sheet does not disclose offences under Sections 307, 353,
506(ii) read with Section 34 of I.P.C.
The Police Officers on duty at the
scene of offence were not performing any public duty much less in good
faith.
The said three petitioners were illegally arrested and detained at
Mapusa Police Station until they were released on bail and they had not
committed any cognizable offence.
Section 96 of I.P.C. provides that
nothing is an offence which is done in the exercise of the right of private
defence and Section 97 mentions that every person has a right to defend
the property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.
The Police Officers
whose statements have been recorded are guilty of trespass into the plot
belonging to the petitioners and are also guilty of misuse or abuse of police
power vested in them. The respondents are guilty of illegally setting
criminal law into motion. The respondents are guilty of judging their own
case and carrying out unfair and one sided criminal investigation.
11.
Affidavits-in-reply have been filed on behalf of the respondents
14
in Writ Petition No. 33/2012, wherein, inter alia, it is stated as follows :
The petition is grossly barred by delay and laches.
The
incident complained of occurred on 22/04/2006 whereas the Writ Petition
No. 33 of 2012 has been filed in the month of March, 2012. The petitioners
have not filed any police complaint nor any proceedings before any other
Authority.
The petition raises several disputed questions of fact which
cannot be decided in a petition under Article 226 of the Constitution.
On
22/04/2006 at about 09.15 hours, PSI Haldankar was on “Station House
Officer” duty at Mapusa Police Station and he received call regarding the
ongoing work of Zilla Panchayat at Aldona which was obstructed and there
was likelihood of law and order problem.
On account of the same, PSI
Prajyot Fadte, LHC-3473 namely Manisha Khot, LPC-4030 namely Shobha
Satish Naik, PC-3991, Santosh B. Parab, PC-4094, Sanjay Kudav, PC-4440,
Jeetendra B. Naik, and PC-4616, Dinesh Satelkar left for protection duty at
the spot at Satarshet Aldona.
At about 09.30 hours, a phone call was
received from PSI Prajyot Fadte stating that two males and two females
were obstructing the on-going work and creating problems, abusing the
Police and had behaved violently. Hence, P.I., Chetan Patil along with other
policemen went to the spot and saw that the women and men who were
obstructing the work had become very violent and were absuing the police
and Zilla Panchayat Engineer and other workers and one of the ladies by
name Vrunda was carrying a wooden danda.
Mr. Patil inquired with the
said persons as to whether any Court order was passed restraining the Zilla
Panchayat
from carrying out any work.
At that time Vikram Devsekar
went inside the house and came out with a Koita and camera and all the
four persons started assaulting the police and others with kicks and
wooden dandas.
Ravi Devsekar took koita from Vrikram Devsekar and
flung it in the direction of police which was intended to hit the head of PC-
3991 namely Santosh Parab; but PC-4094 namely Sanjay Kudav tried to
block the said koita with the help of his lathi and after hitting the lathi, it
hit PC-4094, Sanjay Kudav on his right thigh near the private part and he
sustained injuries and his pant got torn.
injury on her hand.
LPC- 4030 also received a simple
Ravi Devsekar after having thrown the koita, ran away
from the spot and the other three persons namely Laxmi alia Sunita
Devsekar, Vrunda Devsekar and Vikram Devsekar were taken into custody.
Shyamsunder Hadfadkar, Junior Engineer of North Goa Zilla Panchayat
lodged complaint upon which LPSI Devyani Ambekar registered Crime No.
82/06 for offences punishable under Sections 307, 353, 506(ii), 504 read
with Section 34 of I.P.C. In view of the above, the investigation cannot be
said to be biased.
The facts clearly disclose that the action taken by the
Police Officers was in the course of performance of duty.
After completion
of investigation, charge sheet was filed against the petitioners which was
registered as Criminal Case No. 85/S/09/E and the case was committed to
the court of Session at Panaji and was registered as Sessions Case no. 36
of 2010.
The matter was argued before charge and by order dated
06/06/2011, the Sessions Court discharged the accused Laxmi and Vrunda
for offence under Section 307 of IPC and ordered that a separate charge
sheet
be filed against them, before J.M.F.C., Mapusa for offences under
Sections 353, 504 and 506 (ii) of I.P.C.
Accordingly, a separate charge
sheet has been filed against the said accused persons in the Court of
J.M.F.C. , Mapusa and the same is registered under No. 188/S/2011/E.
12.
The petitioner namely Vrinda Devshekar has filed affidavit-in-
rejoinder denying the averments made in the affidavits-in-reply.
13.
Learned Senior Counsel, appearing on behalf of the petitioners,
submitted that the incident of 22/04/2006 took place because the
respondents wanted to do illegal work of construction in the property of the
petitioners. He invited our attention to the letter dated 28/09/2005 written
by the Project Director of District Rural Development Agency, North Goa to
the Chief Executive Officer, North Goa Zilla Panchayat
wherein it is
specifically mentioned that proper N.O.C. from the owner of the property
was required to be obtained before commencing all the work. He
submitted that no such N.O.C. was obtained from the petitioners. He
submitted that the respondents had entered the property of the petitioners
without consent and therefore even if the petitioners had assaulted them, it
was in the exercise of right of private defence of the property.
Learned
Counsel submitted that the respondents had committed offence but the
petitioners could not lodge complaint as they were in custody. Learned
17
Counsel pointed out that the police personnel were about 20 in number
whereas the petitioners were only four out of which two were females.
According to him prosecution launched by the State against the petitioners
is malicious. Learned Counsel invited our attention to the station diary for
22/4/2006, wherein there is no mention of receipt of any phone call from
the complainant Shri Shyamsundar, regarding law and order problem. He
further submitted that there was no sufficient ground for filing charge
sheet. He pointed out that all the statements of witnesses are stereotype
recorded on one day that is on 21 st April.
Even otherwise, he submitted
that the charge sheet does not disclose any offence and more particularly,
considering the ingredients of Section 307 of IPC, the said Section was not
at all attracted. He relied upon following Judgments:
(i).
(ii).
State of Haryana Vs. Bhajan Lal [1992 Supp.(1) SCC 335].
Yogesh alias Sachin Jagdish Joshi Vs. State of
Maharashtra, [(2008) 10 SCC 394].
(iii).
Pepsi Foods Ltd and another Vs. Special Judicial
Magistrate and others, [(1998) 5 SCC 749].
(iv). Parsuram Pandey and others Vs. State of Bihar, [(2004)
13 SCC 189].
(v).
Harshendra Kumar D. Vs. Rebatilata Koley and others,
[(2011) 3 SCC 351].
(vi). Lakshmi Singh and others Vs. State of Bihar, [(1976) 4
SCC 394].
18
(vii). Ravishwar Manjhi and others Vs. State of Jharkhand,
[(2008) 16 SCC 561].
(viii). Ramchandra Shankar Deodhar Vs. State of Maharashtra,
[(1974) 1 SCC 317].
(ix). G. Sagar Suri and another Vs. State of U.P. and others,
[(2000) 2
(x).
SCC 636].
State of Karnataka Vs. L. Muniswamy and others, [(1977)
2 SCC 699].
14.
Learned Public prosecutor, on behalf of the State, submitted
that entire material on record cannot be looked into for the purpose of
quashing of the F.I.R. and it is only the F.I.R. which can be looked into. He
submitted that the petitioners had constructed the compound wall by
leaving one metre wide space and therefore it could be presumed that
there was N.O.C. from them. He further submitted that on 22/04/2006 the
Junior Engineer of Zilla Panchayat had gone to the spot and he had
informed the police that there is disturbance at site and law and order
problem.
He submitted that therefore the police had gone to the spot. He
pointed out that as per the F.I.R. as well as the statements of witnesses it is
clear that koita was thrown in the direction of the police with an intention to
hit Police Constable Buckle No. 3991 on his head but only because PC 4094
intervened and tried to block the said koita with the help of his lathi, the
said koita hit said P.C. Buckle no. 4094 on his right thigh near the private
19
part and he sustained injury and his pant was torn.
The learned Public
Prosecutor pointed out that during the said incident, L.P.C. 4030 had also
received simple injury on her hand.
He submitted that one of the female
petitioners was carrying wooden danda and all had threatened the police
and others with dire consequences. The learned Public Prosecutor
therefore contended that the incident was of criminal nature and cannot be
discarded merely because there was also a civil dispute with regard to the
place at which the construction was sought to be made and by claiming
right of private defence of property.
The learned Public Prosecutor
submitted that there are on record statements of various witnesses, hurt
certificate and the recovery of the weapon and therefore there is sufficient
material on record to frame the charge.
He submitted that High Court
should be slow in interfering with the order of framing of charge. The
learned Public Prosecutor has relied upon following judgments:
(i). Sarju Prasad Vs. State of Bihar, [AIR 1965 SC 843].
(ii). Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal
Chordia and another [(1989) 1 SCC 715].
(iii).
M. Narayandas Vs. State of Karnataka and others, [(2003)
11 SCC 251].
15.
On behalf of the police personnel (respondents no. 2, 3, and 4,
in Writ petition No. 33/2012), Mr. Lawande, learned Additional Public
Prosecutor submitted that there are no malafides alleged against the said
police personnel and that no counter complaint has been filed by any of the
petitioners.
He further pointed out that allegations against the police
personnel are vague and there is nothing to show as to how and why the
investigation is faulty.
16.
On behalf of Mr. Shyamsundar Hadfadkar, Mr. Karpe, learned
Counsel submitted that the incident had occurred on 22/04/2006 but the
Writ Petition No. 33 of 2012 has been filed in the year 2012 whereas the
other two Writ Petitions have been filed in the year 2011 and therefore
there is gross delay and laches.
He submitted
that the F.I.R. and the
statement of witnesses provide sufficient material to prove the offences
with which the petitioners have been charged. He adopted the submissions
made by the learned Public Prosecutor.
17.
We have gone through the entire material on record and
considered the submissions made by the learned Counsel for the parties
and also the judgments cited by the parties.
18.
No doubt, there is a long background for the incident which
occurred on 22/04/2006.
The said background reveals that there is civil
dispute between the petitioners and one Mr. Ramakant Kalangutkar,
regarding the access.
The said dispute
is not yet resolved but is still
pending and now in Second appeal. The learned Civil Judge Senior Division,
21
in Regular civil Suit No. 31/1996, had directed Devsekar to leave one metre
wide access on the western side of the suit property bearing survey no.
15/20. The learned First appellate court, in Regular Civil Appeal No.
225/2003, had set aside the said direction of the trial court. But in Second
Appeal No. 95/2005, this Court by order dated 01/09/2005, has stayed the
operation of the judgment and order of the First appellate Court and has
ordered that the direction given by the trial court in the judgment and order
dated 1/12/2003 shall remain operative. The Second Appeal is still pending.
The Petitioners, therefore, are under obligation to reserve the access of one
metre width till the disposal of the Second Appeal and there is no injunction
against anyone thereby restraining him from interfering with the said space
of the width of one metre. Admittedly, the petitioners have constructed the
compound wall by leaving the space of one metre width.
No doubt, in
terms of the letter dated 28/09/2005 of the District Rural Development
Agency, addressed to the Chief Executive Officer, North Goa Zilla
Panchayat, N.O.C. from the owner was required to be obtained before
commencement of the work of construction of pathway. The incident which
occurred on 22/04/2006 does not involve said Ramakant Kalangutkar but
involves police personnel.
19.
The F.I.R. dated 22/04/2006 and the statement of witnesses
reveal that it was the informant namely Shyamsundar Hadfadkar, the Junior
Engineer of North Goa Zilla Panchayat, who had called the police at the
22
spot
saying that there was likelihood of law and order problem. In the
station diary dated 22/04/2006, there is mention of PSI Fadte, HC 3476, LPC
4030, PC 4440, 3991, 4094, etc., leaving the police station for bandobast
duty at Nasnora. It is true that, there is no mention that a phone call was
received from Shyamsundar that there is law and order problem. But that
would not prove, at this stage only, that the policemen were not called by
the complainant Shri Shyamsundar, alleging that there was law and order
problem. It may be that the said fact becomes a disputed fact. The said
F.I.R. and the statement of witnesses further reveal that one of the
petitioners was armed with wooden danda and the petitioners had started
quarreling with the police; had threatened them with dire consequences
and had slapped and kicked some of the police persons and one of the
petitioners i.e. Vikarm had brought the koita and the other petitioner
namely Ravi had thrown that koita in the direction of the police which hit a
Police Constable on his right thigh near the private part and had caused
simple injury to him. The records further reveal that one L.P.C. had also
sustained simple injury. In this regard, besides the statement of witnesses,
there are hurt certificates and the panchanama of the recovery of the said
koita. At the stage of framing of charge, the trial Judge is not supposed to
see whether the trial will end in conviction or not. The judge has to see
whether the materials on record, if unrebutted, would warrant conviction.
20.
In the case of “Yogesh alias Sachin Jagdish Joshi”(supra)
the Apex Court has held as follows :
“It is trite that the words "not sufficient ground for
proceeding against the accused" appearing in the Section
227 CrPC postulate exercise of judicial mind on the part of
the Judge to the facts of the case in order to determine
whether a case for trial has been made out by the
prosecution.
However, in assessing this fact, the Judge
has the power to sift and weigh
the material for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out. The test to
determine a prima facie case depends upon the facts of
each case and in this regard it is neither feasible nor
desirable to lay down a rule of universal application. By
and large, however, if two views are equally possible and
the Judge is satisfied that the evidence produced before
him gives rise to suspicion only as distinguished from
grave suspicion, he will be fully within his right to
discharge the accused. At this stage, he is not to see as
to whether the trial will end in conviction or not.
The
broad test to be applied is whether the materials on
record, if unrebutted, makes a conviction reasonably
possible.”
21.
It is the case of the petitioners that no N.O.C. was taken from
them before the commencement of the work and that they had a right of
private defence of property and that the respondents no. 2, 3 and 4 of writ
Petition No. 33/2012 had committed offences of criminal trespass, house
trespass, assault, mischief, outraging of modesty, wrongful restraint and
wrongful confinement.
22.
Admittedly, in Second Appeal No. 95 of 2005, the Judgment
and decree passed by the District Court, Panali on 17/6/2005 has been
stayed and the direction given by the trial Court in the Judgment and
Decree dated 1/12/2003 has been ordered to remain operative, during the
pendency of the said Appeal. The petitioners, therefore, were bound to
leave the said space of one metre. Accordingly, the petitioners have
constructed the compound wall by leaving the space of one metre.
Therefore, the question is whether the respondents bona fide presumed
that there was N.O.C. from the owners, and whether such a presumption
was justifiable or not. This is a disputed question which will have to be
decided after the evidence is produced by the prosecution and the same is
tested by cross-examination. If the respondents no. 2, 3 and 4 of writ
Petition No. 33/2012 had committed criminal offences, as alleged, then
nothing had prevented the petitioners from lodging police complaint
against them. Admittedly, the petitioners have not lodged any complaint.
23.
Section 96 of I.P.C. provides that nothing is an offence which is
done in the exercise of the right of private defence. Section 97 of I.P.C.
provides as follows:
“Every person has a right, subject to the restrictions
contained in section 99, to defend-
First.-- His own body, and the body of any other person,
against any offence affecting the human body;
Secondly.-- The property, whether movable or immovable,
of himself or of any other person, against any act which is
an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.
Section 99 of IPC provides as follows :
“There is no right of private defence against an act
which does not reasonably cause the apprehension of
death or of grievous hurt, if done, or attempted to be
done, by a public servant acting in good faith under colour
of his office, though that act may not be strictly justifiable
by law.
There is no right of private defence against an act
which does not reasonably cause the apprehension of
death or of grievous hurt, if done, or attempted to be
done, by the direction of a public servant acting in good
faith under colour of his office though that direction may
not be strictly justifiable by law.
There is no right of private defence in cases in which
there is time to have recourse to protection of the public
authorities.
The right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for
the purpose of defence.
Explanation 1.- A person is not deprived of the right
of private defence against an act done, or attempted to be
done, by a public servant, as such, unless he knows or has
reason to believe, that the person doing the act is such
public servant.
Explanation 2.- A person is not deprived of the right of
private defence against an act done, or attempted to be
done, by the direction of a public servant, unless he
knows, or has reason to believe, that the person doing the
act is acting by such direction, or unless such person
states the authority under which he acts, or if he has
authority in writing, unless he produces such authority, if
demanded.”
24.
The need of self preservation has its root in the doctrine of
necessity.
The right of self defence is therefore basis of necessity and
without such necessity a right to resort thereto does not exist. There are
limits within which the right of private defence can be exercised. The
policemen are public servants. There is no right of private defence against
an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant acting
in good faith under colour of his office, though that act may not be strictly
justifiable by law. Thus, when a public officer acts bona fide under colour of
his office, right of private defence cannot be exercised against him though
his act may not be strictly justifiably by law.
25.
That the statements of witnesses are stereo-type, is a defence
to be taken in cross-examination of the investigating officer and effect of
the same is to be considered on merits. That there was right of private
defence of property and that the petitioners acted under the said right and
they did not exceed the same are also defences which will have to be taken
by the petitioners and proved during trial. In the case of “Ravishwar
Manjhi and others”(supra), it has been held that accused can show that
they were entitled to exercise right of private defence from the materials
on record brought by the prosecution. Therefore, the prosecution should be
first allowed to bring on record the material and thereafter the petitioners
can show that they were entitled to exercise right of private defence and
had not exceeded the right while doing so. In the circumstances above, it
28
cannot be said that there is no prima facie evidence against the petitioners,
for having committed offences under I.P.C.
26.
In the case of “Bhajan Lal and others”(supra), the Hon'ble
Apex Court has stated some categories of cases by way of illustration
wherein the extra ordinary power under Article 226 or the inherent powers
under Section 482 Cr. P.C. can be exercised by the High Court either to
prevent the abuse of the process of any Court or otherwise to secure the
ends of justice. The said categories are as follows :
(a)
where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety, do not prima
facie constitute any offence or make out a case against
the accused;
(b) where the
allegations in
the
First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code;
(c)
where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused;
(d)
where the allegations in the FIR do not constitute a
cognizable
offence
cognizable offence,
but constitute
only
a
non-
no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
(e)
where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which
no
prudent person can ever reach a
just
conclusion that there is sufficient ground for proceeding
against the accused;
(f)
of
where there is an express legal bar engrafted in any
the provisions of the Code or the concerned
Act
(under which a criminal proceeding is instituted) to the
institution
where
and continuance of the proceedings and/or
there is
concerned Act,
a specific provision in the Code or the
providing
efficacious redress
for the
grievance of the aggrieved party;
(g)
with
where a criminal proceeding is manifestly attended
mala fide and/or where the proceeding
is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge.
30
27.
It has further been held that in the same case of “Bhajan Lal
and others”(supra) that the power of quashing a criminal proceeding
should be exercised very sparingly and with circumspection and that too in
the rarest of rare cases. It has been held that Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness or otherwise
of all the allegations made in the F.I.R. or the complaint and that the extra
ordinary or inherent powers do not confer an arbitrary jurisdiction on the
Court to act according to its whim or caprice.
28.
In the case of “G. Sagar Suri and another”(supra), the Apex
Court has held as follows :
“Jurisdiction under Section 482 of the Code has to be
exercised with a great care. In exercise of its jurisdiction
High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature,
has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies
available in law. Before issuing process a criminal court
has to exercise a great deal of caution. For the accused it
is a serious matter. The Supreme Court has laid certain
principles on the basis of which High Court is to exercise
its jurisdiction under Section 482 of the Code, Jurisdiction
under this Section has to be exercised to prevent abuse of
the process of any court or otherwise to
secure the ends of justice. Merely because the accused
persons had already filed an application in the Court of
Additional Judicial Magistrate for their discharge, it cannot
be urged that the High Court cannot exercise its
jurisdiction under Section 482 of the Code. Though the
Magistrate trying a case has jurisdiction to discharge the
accused at any stage of the trial if he considers the charge
to be groundless but that does not mean that the accused
cannot approach the High Court under Section 482 of the
Code or Article 227 of the Constitution to have the
proceeding quashed against them when no offence has
been made out against them and still why must they
undergo the agony of a criminal trial.”
29.
By taking into account the above principles, in the present
case, we are satisfied that no case is made out for quashing of the F.I.R. or
the Charge Sheet.
30.
What remains to be seen is as to what offences are attracted in
the facts and circumstances of the present case. The learned Sessions
Judge, in the order dated 06/06/2011, has held that the
offence under
Section 504 of I.P.C. was not attracted to the case against the petitioners.
32
The petitioners have been discharged of the said offence under Section 504
of I.P.C. There can be no dispute that there is no sufficient material on
record for framing charge under Section 504 of I.P.C. The Sessions Judge
has further held that the offence under Section 307 of I.P.C. is attracted to
the acts of Vikram and Ravi since Vikram had gone inside the house and
had brought the koita and it was used by Ravi. Therefore, let us see if the
material on record is sufficient to apply Section 307 of I.P.C., which is a
serious offence.
31.
In the case of “Parsuram Pandey and others”(supra) it is
observed as follows :
“To
constitute
an
offence
under
Section
307
two
ingredients of the offence must be present:-
(a)
an intention of
or knowledge relating to
commission of murder ; and
(b)
the doing of an act towards it.
For the purpose of Section 307 what is material is the
intention or the knowledge and not the consequence of
the actual act done for the purpose of carrying out the
intention.
Section clearly contemplates an act which is
done with intention of causing death but which fails to
bring about the intended consequence on account of
intervening circumstances. The intention or knowledge of
33
the accused must be such as is necessary to constitute
murder. In the absence of intention or knowledge which is
the necessary ingredient of Section 307, there can be no
offence 'of attempt to murder'. Intent which is a state of
mind cannot be proved by precise direct evidence, as a
fact it can only be detected or inferred from other factors.
Some of the relevant considerations may be the nature of
the weapon used, the place where injuries were inflicted,
the nature of the injuries and the circumstances in which
the incident took place. On the evidence on record, where
the prosecution has been able to prove only that the
villagers have sustained injuries by indiscriminate firing
and it was an open area with none of the injured nearby
there is a complete lack of evidence of intention to cause
such injuries for which the accused persons Parshuram
and Bishram could have been convicted under Section 302
IPC.
Nature of the injuries sustained by the villagers is
simple.
None of the witnesses have stated that the
firearm causing injuries was being used by any particular
accused for causing injuries to them. In fact the injured
have not seen any of the accused persons using fire arms.
There is no evidence about the distance from which the
said two accused fired. The only evidence led by the
34
prosecution is indiscriminate firing by Parshuram and
Bishram which has caused simple injuries to the villagers.
Amongst the injured villagers, only PW1 and DW-1 were
examined.
Thus this evidence does not constitute the
intention or knowledge of the accused persons for
committing the murder or doing of an act towards it. The
evidence only shows that the villagers have sustained
simple
injuries.
In
the
circumstances,
we
acquit
Parshuram and Bishram under Section 307 IPC”.
32.
In the present case, admittedly, there was no enmity between
the petitioners and the respondents no. 2, 3 and 4 who are policemen.
There was dispute between the petitioners and one Ramakant Kalangutkar
regarding access.
The said access was admittedly claimed through the
property of the petitioners. According to the petitioners, there was no right
of access to any person through their property. Junior Engineer and
member of North Goa Zilla Panchayat, along with materials supplier and
labourers had gone to the site to do the work of construction of pathway
and the junior Engineer had called the police due to which the respondents
no. 2, 3 and 4 had gone there. The petitioners or any of them cannot be
said to have had any intention to kill the said policemen or any of them
particularly. They only wanted to stop the work.
There was no pre-
meditation. One of the petitioners namely Vikram had brought the koita,
35
but he did not use it. The other petitioner namely Ravi took the koita from
Vikram and threw it at the police. If the petitioner wanted to kill the
policeman, then he would not have thrown the koita towards policemen
from a distance but would have hit the same on vital part of the body by
going close to the policeman. The koita allegedly struck the groin area of
the police constable and caused only a simple bruise. The distance from
which the koita was thrown is not known. In the above facts and
circumstances, we are of the considered opinion that Section 307 of I.P.C. Is
not attracted but Section 324 of I.P.C. Is applicable. The other Sections
applicable are 506(ii) and 353 of I.P.C. There is also prima facie evidence on
record to establish that all the petitioners acted in furtherance of their
common intention, insofar as the offences under Sections 353 and 506(ii)
are concerned.
33.
In the case of “Stree Atyachar Virodhi Parishad”(supra) the
Apex Court has observed that Section 227 which confers power to
discharge an accused was designed to prevent harassment to an innocent
person by the arduous trial or the ordeal of prosecution. The power has
been entrusted to the Sessions Judge who brings to bear his knowledge
and experience in criminal trials.
counsel for the accused
both sides
Besides, he has the assistance of
and Public Prosecutor. He is required to hear
before framing any charge against the accused or
for
discharging him. If the Sessions Judge after hearing the parties frames a
36
charge and also makes an order in support thereof, the law must be
allowed to take its own course. It has been held that self restraint on the
part of the High Court should be the rule unless there is a glaring injustice
which stares the Court in the face. The opinion on any matter may differ
depending upon the person who views it. There may be as many opinions
on a particular matter as there are courts but it is no ground for the High
Court to interdict the trial. It would be better for the High Court to allow
the trial to proceed.
34.
In the case of “M. Narayandas”(supra), it has been held that
the power to quash F.I.R.
must be exercised very sparingly and with
circumspection and that too in the rarest of rare cases. It has been held
that Court cannot inquire about reliability or genuineness or otherwise of
the allegations made in F.I.R. and Court has also no power to inquire
whether the allegations are likely to be established or not.
35.
The learned Sessions Judge, in the impugned order dated
06/06/2011, has ordered to frame charge against the petitioners namely
Vikram and Ravi
for offences punishable under Section 307, 353 and
506(ii) read with Section 34 of I.P.C. and has discharged the petitioners
namely Laxmi and Vrinda of the offence punishable under Section 307 of
I.P.C, by observing that their common intention with Vikram and Ravi, for
this particular offence is not established. However, at the same time, the
37
learned Sessions Judge has given liberty to the State to proceed against
said petitioners namely Laxmi and Vrinda
for offence punishable under
Sections 353, 506(ii) read with Section 34 of I.P.C. before the learned
J.M.F.C., Mapusa. Thus, It can be understood that according to the learned
Sessions Judge, there is prima facie evidence against all the four petitioners
for having shared common intention in respect of the offences punishable
under Sections 353 and 506(ii)
evidence
of I.P.C., but there is no prima facie
to establish that the petitioners Laxmi and Vrinda
shared
common intention with the petitioners Vikram and Ravi in respect of the
offence under Section 307 of I.P.C.
In our considered view, there is no
evidence to establish that the petitioners Laxmi, Vrinda and Vikram had
shared common intention with the petitioner Ravi, in respect of the offence
of voluntarily causing hurt to the policeman, by means of koita. Vikram
had brought the koita but had not used it. Vikram had not handed over the
koita to Ravi. But, Ravi himself took the koita from Vikram and threw it
towards the policeman and voluntarily caused simple injury to
policeman by name Sanjay Kudav.
the
The order, of bifurcating trial, in our
view, also, is not sustainable in law. It can be understood from the records
that all the offences were committed in the course of same transaction.
Section 220(1) of Cr.P.C. provides that if, in one series of acts so connected
together as to form the same transaction, more offences than one are
committed by the same person, he may be charged with, and tried at one
trial for, every such offence. Section 223(d) of Cr.P.C. provides that persons
38
accused of different offences committed in the course of the same
transaction may be charged and tried together. Besides the above,
the
records reveal that the petitioners Laxmi, Vrinda, Vikram and Ravi, all, had
come out together and started quarreling with Shyamsundar Hadfadkar
and others and had stopped the work and threatened them with dire
consequences.
Prima facie, therefore, the above acts, punishable under
Sections 353 and 506(ii) of I.P.C., done by the said petitioners, should be
taken to have been done in furtherance of common intention of all of them.
However, insofar as the act of causing simple hurt with koita, punishable
under Section 324 of I.P.C., is concerned, Ravi had taken that koita from
Vikram and suddenly flung the same in the direction of police, thereby
causing hurt to P.C. 4094. Therefore, the above act of Ravi is independent.
36.
From the above, it is clear that the order dated 06/06/2011 passed
by the Sessions Judge is illegal and not sustainable in law. Since we have
held that Section 307 of I.P.C. Is not applicable but Section 324 of I.P.C. is
applicable, the offences which remain are those punishable under Sections
353, 506(ii) r/w 34 of I.P.C. as against all the petitioners and under Section
324 of I.P.C. as against the petitioner Ravi.
All the above offences are
triable by the Court of learned J.M.F.C., Mapusa.
37.
We do not deem it necessary to refer to each and every
judgment relied upon by the parties but we make it clear that we have
39
considered the principles laid down in each of them.
38.
In the result, following order is made:-
(i)
Order dated 30/9/2010, passed by the learned
J.M.F.C., Mapusa, in Criminal Case No. 85/S/2009/E,
thereby committing the case to the Court of Session is
quashed and set aside.
(ii)
All the proceedings taken before the learned
Sessions Judge, in Sessions Case No. 36/2010, including
the impugned order dated 06/06/2011, charge framed and
evidence recorded, are quashed and set aside.
(iii)
All the
proceedings
in Criminal Case No.
188/S/2011, taken before the learned J.M.F.C., Mapusa are
quashed and set aside.
(iv)
Original Criminal Case No. 85/S/2009/E stands
revived and the learned J.M.F.C., Mapusa shall proceed
against all the four accused persons named therein for
offences punishable under Sections 353, 506(ii) r/w
Section 34 of I.P.C., and against accused no.4 Ravi
Devsekar for offence punishable under Section 324 of
I.P.C.
(v)
It is made clear that the findings of this Court,
40
above, are prima facie only for the purpose of framing of
charge and the learned J.M.F.C. shall not be influenced by
the same while deciding the matter on merits.
(vi)
Parties to appear before the learned J.M.F.C., Mapusa
(E-Court) on 5th August, 2013, at 10.00 a.m.
39.
Rule is made absolute in all the above Writ Petitions, in the
above terms. The Writ Petitions stand disposed of accordingly.
A. P. LAVANDE, J
U. V. BAKRE, J.
MV
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