Tenant’s Premises Demolished While They Were “Illegally” Detained By Police: Bombay HC Orders CID Probe Against Officers, Says No Sanction Required

Justice RM Joshi at the Aurangabad bench held the police’s acts were not in discharge of their duties and therefore no Sanction u/s 197 of the CrPC was required to prosecute them.

“Prima facie perusal of facts on record indicates that cognizable offences are committed by petitioners and in such circumstances, it was not open for the Magistrate to refuse investigation under Section 156(3) of Code of Criminal Procedure,” the court observed regarding Magistrate’s decision to order an enquiry under Section 202 of the CrPC instead of ordering an investigation u/s 156(3).

The High Court dismissed a clutch of petitions by the original landlord’s bother, purchasers of the property and the police officers challenging an order of a Sessions judge directing CID investigation and registration of FIR u/s 156(3) of the CrPC.

Facts

In 2021 a landlord sold his flats to a third party. Subsequently the tenants filed a civil suit seeking an injunction against the landlord and purchasers. The landlord committed suicide in March 2022 blaming the tenants. Twenty-five days later, the police called the tenants to the police station for investigation and illegally detained them there while their homes were demolished using JCBs.

The tenants were further allegedly coerced into signing letters surrendering their tenancy to the landlord’s wife. The tenants narrated the incident in an application to the Magistrate seeking an FIR u/s Section 156(3) of the CrPC. However, they were constrained to approach the Sessions court after the Magistrate simply directed a police inquiry u/s 202 of the CrPC.

The Sessions court allowed the application and ordered an FIR against the accused and further directed a CID enquiry.

Arguments

In all the three petitions before the HC it was contended that no offence was committed and the tenants surrendered the tenancy on their own. Purchasers said they had nothing to do with the transaction, while the landlord’s brother said he hadn’t witnessed anything.

The police officers however claimed that without prior sanction from the department u/s 197 of the CrPC they couldn’t be investigated. Moreover, they claimed that once the Magistrate had taken cognisance of the complaint and issued directions u/s 202 of the CrPC, an FIR couldn’t be ordered in retrospect under section 156(3) of the CrPC.

Lastly, they contested that the Sessions court did not have powers to direct a CID investigation when such a prayer wasn’t made.

Turn The Clock Back

At the outset the court observed that it can’t be said the Magistrate had taken cognisance of the matter as the case was simply put up for verification, as is often done my magistrates. Taking cognisance requires application of mind, which is not reflected from first order passed by the court before the petitioners approached the Sessions Court.

“Even otherwise, applicants (tenants) had asked for direction under Section 156 (3) of Code of Criminal Procedure and if Magistrate was not inclined to issue such directions, he could have simply dismissed applications.”

SANCTION

By an amendment to Section 156(3) of the CrPC the court noted Magistrate’s were barred from issuing process against Public Servants without sanction under 197 of the CrPC regarding acts performed as part of their duty. However, the court noted this merely meant the Magistrate had to record their satisfaction that the acts were not conducted as part of their duty before ordering an FIR to be registered against them.

“it would not be open to accept the preposition that no offence can be registered or investigated into against the public servant even in respect of act having no bearing on discharge of his duties.”

The bench further rejected the contention that Magistrates didn’t have the power to decide if acts alleged to have been committed is in discharge of duties or not and it has left to the discretion of sanctioning authority.

“It is neither appearing from the relevant provisions nor it would be appropriate to leave such decision which involves application of judicious mind to the discretion of Administrative Authority,” the court said.

While holding that the Revision court couldn’t have directed the CID to investigate, the HC used its powers under Section 482 of the CrPC to order the investigation to the CID and to an officer not below the rank of Deputy Superintendent of Police.

“It would be travesty of justice if investigation into the crime is entrusted to local police station or even to the Superintendent of Police.”

Appearances – Advocate G. S. Rane for the petitioners Mrs G. L. Deshpande, APP for the State. Mr. A. K. Tiwari, Advocate for respondent No. 2

CRIMINAL APPLICATION NO.1209 OF 2023