Full Text
HIGH COURT OF DELHI
22076/2022 & CRL.M.A. 26306/2022.
STATE (NCT OF DELHI) THROUGH DEPUTY COMMISSIONER OF DELHI POLICE (SOUTH DISTRICT) ..... Petitioner
Through: Mr. Sanjeev Bhandari, ASC (Crl.) with Mr. Sushant Bali, Kunal
Mittal and Mr. Saurabh Tanwar, Advs. for the State with ACP
Ram Sundar, PS: Sangam Vihar Division, SHO/Insp. Sangam
Vihar, IO/WASI Anju Tyagi, PS:
Sangam Vihar, New Delhi.
Through: Mr. Rajan Kumar Prasad, Ms. Vikas Sneha Kumari and Ms. Sonam, Advocates.
JUDGMENT
1. This petition has been filed by the State seeking setting aside orders dated 08th August, 2022, 17th August, 2022, 24th August, 2022, 29th August, 2022 and 31st August, 2022 passed by the Ld. ASJ, South District, Saket Courts in Bail Application 1395/2022 arising out of FIR No.267/2022 PS Sangam Vihar, Delhi as also for expunging extra judicial remarks made against the police officers and setting aside directions of initiating inquiry against the police officers. Besides this specific relief, other directions are sought towards subordinate Courts to not insist upon any reports from any particular officers or rank of officers under signatures of particular officers or rank of officers and further for subordinate Courts to abide by guidelines in relation to monitoring investigations.
2. The issue arose in relation to a hearing (on 08th August, 2022) of a bail petition No.1395/2021 of the respondent in FIR No.267/2022 PS Sangam Vihar by the Ld. ASJ. The Ld. ASJ while hearing the bail petition noted two of his concerns. First, a delay in the registration of the FIR and second, the omission to ascertain the opinion of the doctor on some of the injuries (nail in the leg and glass injury) mentioned in the statement of the victim recorded under Section 164 Cr.P.C. Immediately upon noting these concerns, the Ld. ASJ stated that “This is a serious lapse on the part of Investigating Officer and makes her liable for departmental action. DCP (South) shall take appropriate action against the Investigating Officer for the aforesaid lapses”. The Ld. ASJ then directed DCP (South) to conduct an inquiry into the reasons for delay in registration of FIR, fix the responsibility of police officials who were responsible for such delay and take disciplinary action. DCP (South) was to intimate the Court about the result of the inquiry on the next date of hearing. The matter was listed for 17th August, 2022. On 17th August, 2022, the Ld. ASJ noted that a report had been filed by the DCP (South) stating that an inquiry had been conducted which revealed that the complainant/victim neither stated that a nail was inserted on a leg by accused during her medical examination nor the victim mentioned that she was hit with a piece of glass in her hand by the accused during her medical examination. The Ld. ASJ, however, said that even though these facts did not emerge in the FIR or during medical examination of the victim, it was recorded in her statement under Section 164 Cr.P.C. and the IO ought to have then taken an opinion on these injuries by the doctor. On this issue, the Ld. ASJ noted that no efforts had been made by the DCP (South). Further, on the issue of delay of registration of the FIR, the report by DCP (South) stated that since the family members of the victim were found absconding from their house, and the victim was not traceable, the delay on the part of the IO in registration of the FIR was not intentional. On this, the Ld. ASJ noted that registration of the FIR is the job of the SHO PS Sangam Vihar and that the DCP (South) was oblivious of the law. It was further noted by the Ld. ASJ that the victim was not called by the DCP (South) for the purpose of this inquiry. It was, therefore, concluded by the Ld. ASJ that no proper, fair or impartial inquiry was conducted by the DCP (South) and this report was “nothing but an eyewash to cover up the lapses on the part of concerned delinquent police officials”. The Ld. ASJ then ordered an inquiry into the entire matter by the Commissioner of Police, Delhi on whether the victim along with her mother had visited the PS Sangam Vihar on various dates, and whether the victim was made to sit in the police station for long time without any reason and whether there was a deliberate omission on the part of the IO in obtaining the opinion of the concerned doctor. The matter was listed for 31st August, 2022.
3. On 31st August, 2022, a report was filed on behalf of the Commissioner of Police with the signatures of DCP (South) dated 29th August, 2022. The victim and the mother also stated in Court that they were called to office of DCP (South) for the purpose of the inquiry. The Ld. ASJ then inquired as to why the report was not filed under the signatures of the Commissioner of Police and it was duly responded by stating that the DCP (South) was authorized to file report on behalf of the Commissioner of Police. The Ld. ASJ then issued contempt notice against the Commissioner of Police for non compliance of order dated 24th August, 2022 (when the report had been requisitioned) and also summoned the internal noting of the office of the Commissioner of Police. The DCP (South) stated before the Court that the reply was filed before the Court on 29th August, 2022 on behalf of the Commissioner of Police in compliance of instructions issued vide para (G)(1) of Standing Order No.Lic&Leg./02/2022 issued from the office of Commissioner of Police which states that in cases where replies and affidavits have been sought by the Court from the Commissioner of Police in respect of the matter involving one particular district/unit, the head of the district/unit shall file the reply/affidavit under his signature after getting it approved from the respective Joint CP, Special CP and CP. To this, the Ld. ASJ noted that the Standing Order of the office of the Commissioner of Police could not supersede or have precedence over directions passed by the Court, and that the Court had not asked for the reply affidavit but had asked for an inquiry to be conducted by the Commissioner of Police. It was further noted that no material had been placed to show the reply filed by the DCP (South) had the approval of the Joint CP, Special CP and CP. It was concluded by the Ld. ASJ that there was a deliberate non compliance of orders of the Court and notice was issued to the Commissioner of Police to show-cause as to why contempt proceedings be not initiated for such non-compliance. Further, a notice was also issued to DCP (South) as to why necessary steps for registration of criminal case under appropriate provisions be not taken against her for the offence of signing without authority. The Ld. ASJ further directed stating that “sordid and pathetic state of affairs in the Administration of Delhi Police” requires the entire matter to be brought to the notice of Home Secretary, Ministry of Home Affairs, Government of India for taking remedial steps and sent a copy of the order to the said officer.
4. The Ld. Additional Standing Counsel for the State contended that these remarks and directions by the Ld. ASJ were wholly unwarranted and were outside the ambit of the scope and purview of the bail petition which was being adjudicated by the Ld. ASJ. The delay in the registration of the FIR had no relevance to the said bail petition as also the investigation had been completed and the charge-sheet had been filed and the matter was already listed for framing of charges. Moreover, such directions amounted to interference in the process of investigation which was not countenanced by various decisions of the Hon’ble Supreme Court and other Courts. The Ld. ASC referred to provisions of Section 15 of the Delhi Police Act, 1978 which vests the Commissioner of Police with powers to direct and regulate distribution of duties, order and modes of proceedings for fulfilment of duties by the police force under him. Accordingly, the standing orders are formulated for the smooth and efficient functioning of the force. He stated that it has become a practice by Subordinate Courts to seek reports directly from the Commissioner of Police under his signatures. He placed reliance on Hemant Dhasmana v. CBI, (2001) 7 SCC 536 where the Hon’ble Supreme Court has stated that at the time of passing of orders for further investigation the Courts cannot direct investigation to be done from a particular rank of an officer or a particular officer. The Ld. ASC has further assailed the impugned orders on the following grounds:
(i) The Ld. ASJ had no power to issue notice of contempt of
Court, since that power is only provided to the High Courts under Sections 11/12 of the Contempt of Courts Act, 1971. A subordinate Court can only make a reference to the High Court for initiating contempt proceedings and, therefore, the directions of the Ld. ASJ were in excess of jurisdiction. Reliance was also placed on ICICI Bank Ltd. v. Rashmi Sharma, 2022 SCC OnLine Del 112 at para 13 where this Court has reiterated that only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it and Subordinate courts cannot assume jurisdiction and issue show-cause notice as to why contempt proceedings be not initiated. Subordinate Courts can only make a reference to the High Court for initiating contempt proceedings.
(ii) The Ld. ASC relied on State v. Yogender Singh, 2015 SCC
OnLine Del 14203 where while dealing with a bail application, a Ld. ASJ had commented on the conduct of the investigating agency, the SHO and the DCP as well. Also a copy of order had been sent to the Commissioner of Police to take action against the erring police officials and to submit the Action Taken Report. In this regard this Court had stated as under:
(iii) The Ld. ASC relied on State of Tamil Nadu v. S. Martin &
Ors., (2018) 5 SCC 718 at paras 5, 7 where the Hon’ble Supreme Court categorically stated that when the investigation was yet to be completed then directions made by the High Court midway were deprecated and it was observed that the investigation ought to have been permitted to be taken to its logical conclusion. Similarly, in Om Prakash Chugh v. State of Haryana & Ors., (2000) 10 SCC 612 at para 7 it was noted by the Hon’ble Supreme Court that any finding on the merits of the case including observations and remarks made by the Court were not warranted at a stage when investigation is pending since the investigation must be held in the fairest manner possible.
(iv) As regards the scathing remarks made against police officials, the Ld. ASC relied upon Section 6 of Chapter 1, Part H ('The Judgment') of the Delhi High Court Rules for "Practice in the Trial of Criminal Cases" which states as follows: “6. Criticism on the conduct of Police and other officers-It is undesirable for Courts to make remarks censuring the action of police officers unless such remarks are strictly relevant of the case. It is to be observed that the Police have great difficulties to contend with in this country, chiefly because they receive little sympathy or assistance from the people in their efforts to detect crime. Nothing can be more disheartening to them than to find that, when they have worked up a case, they are regarded with distrust by the Courts; that the smallest irregularity is magnified into a grave misconduct and that every allegation of ill-usage is readily accepted as true. That such allegations may sometimes be true it is impossible to deny but on a closer scrutiny they are generally found to be far more often false. There should not be an over-alacrity on the part of Judicial Officers to believe anything and everything against the police; but if it be proved that the police have manufactured evidence by extorting confessions or tutoring witnesses they can hardly be too severely punished. Whenever a Magistrate finds it necessary to make any criticism on the work and conduct of any Government servant, he should send a copy of his judgment to the District Magistrate who will forward a copy of it to the covering letter giving reference to the Home Secretary's circular Letter No. 920-J-36/14753, dated the 15th April, 1936.” (emphasis added)
(v) Reliance was placed on S. Palani Velayutham v. Collector,
(2009) 10 SCC 664 where the Hon’ble Supreme Court has stated:
(vi) It was submitted that disciplinary inquiry against a police officer is the discretion and prerogative of superior police officers and is conducted as per procedure laid down by various regulations and rules including Delhi Police (Punishment and Appeal) Rules, 1980.
(vii) Reliance was placed on the State of NCT of Delhi v. Anwar
Khan, Crl.M.C. 2784/2021 decision dated 10th November, 2021 where a Coordinate Bench of this Court had noted in para 24, after the Ld. ASJ allowed the application seeking anticipatory bail, it became functus officio and as such could not have continued with the matter, more particularly on the aspects of investigation in the case. Such an observation was passed relying on the decision of Nathu Singh v. State of U.P., (2021) 6 SCC 64 of the Hon’ble Supreme Court. In the said matter, this Court stated that it was clearly beyond the scope of ASJ, while adjudicating a petition under Section 438 Cr.P.C. to issue bailable warrants against Additional DCP (South), DCP (South) and Joint CP and accordingly had quashed the said directions.
(viii) The Ld. ASC submitted that the Delhi Police has to perform a vast array of functions and duties for which the Commissioner of Police as the Head of the Organization is assisted by Special Commissioners, Joint Commissioners, Additional Commissioners, Deputy Commissioners, Additional Deputy Commissioners and Assistant Commissioners of Police besides other staff and the organization functions through may jurisdictional and functional verticals. Accordingly, powers and duties have been decentralized so as to enhance the efficacy of the system. Section 8 of the Delhi Police Act delegates powers to the DCPs and Addl. DCPs or the ACPs to perform duties of the Commissioner of Police as specified in internal orders. Reliance for this was placed on Kaushalya v. State, 1987 SCC OnLine Del 265 where this Court noted that the Commissioner of Police was competent to delegate his functions to police officers and they would be duly authorized accordingly.
(ix) In Rakesh Chand v. State (NCT of Delhi), 2015 SCC
OnLine Del 14193, this Court held that “While dealing with the task of administering justice, a Judge, no doubt has to be acting judicially and giving expression to his views but he ought to be circumspect while commenting on the conduct of some. The line of discretion is not to be overstepped. The calm and sangfroid of a Judge should be reflected in every judgment, every order; rather every part of any judgment or order. The immunity which is enjoyed by a judicial officer carries with it the duty of circumspection. A Judge ought to know that any statement against any authority of the Government or any organ of the Government or any person incharge of investigation or discharging executive functions can lacerate, slash and mutilate his reputation into tatters and cause irreparable harm. It may prejudicially affect the career of such persons.” This Court had in this decision relied on an observation by the Hon’ble Supreme Court of the United States in Stump v. Sparkman, 435 US 349, 1978 stating “A Judge is not free, like a loose cannon to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity”. In this matter as well, police officials had sought deletion of observations as no hearing or opportunity was given to explain their conduct. Moreover, the Court noted that there could be a lapse on the part of the investigating officer, but even then before any action is taken, legal or departmental, they should be given notice and should be heard. It was further stated that even if there was a lapse on the part of the petitioners as police officers, the Trial Court could have recorded such lapse and indicated that in future such lapse should not occur, however, directing the administrative authorities/superior police authorities to take legal/departmental action against the petitioners only meant that “the petitioners were also convicted along with the accused persons in the present case” and for proper sentencing, their cases were sent to the superior police authorities. This Court in that matter had also expunged the remarks from the impugned judgment.
(x) In Ajit Kumar v. State (NCT of Delhi), 2022 SCC OnLine
Del 3945 this Court while dealing with a prayer for deletion of remarks made against the SHO and directions to conduct an enquiry against him, noted that “…Use of denigrating remarks against anyone, especially against police officials impeaching their credibility and questioning their sense of dedication towards duty, is not the best course adopted by a judicial officer, that too when the same is not required for the adjudication of the case before the Court. Such criticism may have a devastating effect on the professional career of an officer...” and further that “...Though the police officers are duty bound to discharge their responsibilities with utmost conviction, the practical difficulties which are faced by them cannot be overlooked and disregarded by the Courts...” (emphasis added)
(xi) In Dilip Kumar Deka (Dr) v. State of Assam, (1996) 6 SCC
234, the Hon’ble Supreme Court noted that the nature of remarks made by the Ld. Judge cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career and were made without giving them an opportunity of being heard which was against the principle of natural justice. The appeal before the Hon’ble Supreme Court was also for expunging remarks made by the Ld. Judge against certain doctors while disposing of a revision petition in a murder case. The Hon’ble Supreme Court noted in para 10 as under
5. Having heard the Ld. ASC and perused the records of the Court, in the considered opinion of this Court, the Ld. ASJ has far exceeded his jurisdiction and scope of powers issuing the directions as in the impugned orders as also has been unnecessarily scathing and discordant; firstly, the genesis of these directions arose while hearing a bail petition and, therefore, as noted in the decisions quoted above, was beyond the scope and jurisdiction of the Ld. ASJ who was merely adjudicating on a bail plea; secondly, directions to supplement the investigation or fill in the gaps in the investigation in a particular manner effectively amounted to taking over the manner of investigation and the method of investigation which is the sole prerogative of the investigating agency. Also, these remarks were being made during what was the hearing of a bail application, was itself unwarranted; thirdly, without giving an opportunity to the investigating officers or other police personnel for what seemed to be a lapse by the Ld. ASJ, the Ld. ASJ summarily noted that the IO was liable for departmental action. This was a highly disproportionate prejudgment on the issue and even if the Ld. ASJ had to ascertain certain facts, it could have been achieved by merely making an observation and a request to the investigating agency to look into the same. Departmental action is a serious issue which can affect the career of a police personnel or any other public official for that matter and to make these observations/directions in such a cursory and casual manner is certainly not called for nor necessary; fourthly, once having got the report of the DCP which gave a reasonable explanation to the concerns of the Ld. ASJ, to yet again dismiss the report as simply an ‘eyewash’ concluding that there was a lapse of concerned delinquent police officials, was not warranted; fifthly, further directing an inquiry by the Commissioner of Police is, particularly in these circumstances, uncalled for and was amplifying the issue beyond proportion. The Ld. ASJ could have possibly made a remark or expressed his disapproval rather than directing a full inquiry into the matter where an explanation had already been provided; sixthly, once a report had been filed by the DCP (South) on behalf of the Commissioner of Police, there was no necessity for suspecting foul play considering that the Commissioner of Police is expected to operate and administer various functions through delegations of his powers. This was as per various standing orders and rules & regulations, which have been adverted to above by the Ld. ASC. Directing to see the internal noting of the office of the Commissioner of Police and further observing that there was contempt of the court by the Commissioner of Police in these circumstances was completely outside the scope of powers of the Ld. ASJ, notwithstanding that it was not warranted in the facts and circumstances of the case; seventhly, by ignoring the issue of delegation of powers and the authority which the DCP (South) would have had to file a reply on behalf of the Commissioner of Police, the Ld. ASJ went ahead and observed that prima facie there was an offence of forgery and cheating by the DCP (South). This was an unfortunate exaggeration by the Ld. ASJ and considering the facts and circumstances as above. The Ld. ASJ further directs the Home Secretary, Ministry of Home Affairs, Government of India to take remedial steps, which yet again a pre-judgement. The issuance of all these directions, in quick succession, inexorably escalating and accelerating the matter ignores the fact that a reasonable explanation had been given to the Ld. ASJ at the first instance itself by a senior police official and if at all it had to be doubted, the reasons for the same ought to be specific, substantial, fully articulated, well-reasoned, pursuant to application of mind, in consonance with legal principles and in deference to settled principles of law. The directions were issued which go against the grain of all that has been adverted to above in the decisions of the Hon’ble Supreme Court (supra), extracted above for convenient reference.
6. In a very recent decision of a coordinate Bench of this Court pronounced on 01st March, 2023 in Sanjay Kumar Sain v. State of NCT of Delhi, the Hon’ble Judge has while dealing with remarks being passed by the Ld. ASJ against police officers and ordering issuance of bailable warrants against the petitioner (who was the Deputy Commissioner of Police), expunged the remarks deleting them from the impugned orders and in an addition also noted as under: “Although the Courts must ensure that trials are conducted swiftly, fairly, and impartially, they must take into account the ground realities and position of law. Whenever the judicial officers are inclined to use harsh language against the investigating authorities and police officers on their professional capabilities and devotion towards their duty, more control and caution must be exercised, since passing such comments may impair a person’s confidence, in addition to having a negative impact on his work and reputation. The loss of reputation suffered by an officer may not get restored even if the remarks are expunged by a higher court. Therefore, a thin wall that exists between the adjudicatory liberty to point out the flaws in an investigation or on part of authorities and the obligation to exhibit judicial restraint must be kept in mind and perspective”. “….The Courts are not powerless to indicate any lapse or omission on part of investigating agencies, or any disobedience of the directions of the Court. The courts have to take recourse to the judicial precedents and the High Court Rules instead of taking into their own hands the duty of conducting enquiries, etc., and have to leave the same to the parent department and disciplinary authority of the police officers concerned”. “As also earlier directed in Ajit Kumar v. State (NCT of Delhi) (supra), this Court once again, by way of abundant caution, directs all the learned Judicial Officers to exercise utmost restraint and judicial discipline while deciding the cases before them and refrain from judging the credibility of police officers and passing scathing and disparaging remarks against them, when the same are not required for the adjudication of matters before them”. (emphasis added)
7. Also, no purpose would be served in rephrasing or restating the statements made by the Hon’ble Supreme Court in the decisions cited above, since a referral to the same and perusal of the extracts (supra), would make the position incontrovertibly and categorically clear. All is needed is for Courts to heed these views, observations and directions in their true letter and spirit and avoid unnecessary waste of judicial time.
8. In these facts and circumstances, it is directed that all extrajudicial remarks made against the police officers including the IO, DCP (South) and the Commissioner of Police are expunged from the orders dated 08th August, 2022, 17th August, 2022, 24th August, 2022, 29th August, 2022 and 31st August, 2022 passed by the Ld. ASJ, South District, Saket Courts in Bail Application 1395/2022 arising out of FIR No.267/2022 PS Sangam Vihar, Delhi, as also all directions for conducting inquiries against police officers or notices that have been issued to the police officers for contempt or for criminal proceedings or otherwise are recalled and stand deleted from the said orders.
9. Petition is disposed of. Pending applications, if any, are disposed of as infructuous.
10. As regards the directions sought by the Ld. ASC to subordinate Courts to abide by guidelines in relation to monitoring investigation and not insist upon any reports from any particular rank of officers, suffice it to say at this stage that there can be no doubt that the subordinate Courts have to operate within the framework of the judicial system and structure, within the confines of the roles as assigned to each by law and by the Constitution of India and, therefore, necessarily have recourse to and abide by judicial precedents, High Court Rules and other practice directions issued from time to time.
11. Judgment/order be uploaded on the website of this Court.
JUDGE MARCH 06, 2023