It is also observed that several Metropolitan Magistrates have tendency of calling police officers to their Courts without their presence being required in any particular case, just because they want to demonstrate their power to call police officers in Court. Such a tendency must be curbed and such orders cannot be looked upon kindly. No police officer should be called to the Court unless his presence is required specifically for any cause or for any purpose and if a senior police officer is called to the Court he should not be allowed to waste his time in Court at the cost of public duties.
Section 129 gives power to the Executive Magistrate and other officers to give command to the unlawful assembly to disperse and where it is seen that unlawful assembly is determined not to disperse, the power has been given to the police officer to disperse such unlawful assembly by use of force. How much force is necessary to disperse the unlawful assembly has to be the decision of Executive Magistrate or the police officer concerned.
An unlawful assembly is unlawful assembly irrespective of the fact whether the people have assembled for a good cause or a bad cause. Neither there is a golden scale of quantum of force to be used, nor such a yardstick can be laid down by the Courts. The quantum of force to be used has to be determined by the officer concerned, the Court cannot substitute its own opinion or decision about the quantum of force which should have been used.
(2007) 10 AD(Delhi) 83 : (2007) 4 JCC 2886 : (2007) 4 LRC 110
DELHI HIGH COURT
( Before : S.N. Dhingra, J )
COMMISSIONER OF POLICE AND OTHERS — Appellant
MANOJ SHARMA AND ANOTHER — Respondent
Writ Petition (Criminal) No’s. 1014-16 of 2006
Decided on : 03-10-2007
Constitution of India, 1950 – Article 226, Article 227
Criminal Procedure Code, 1973 (CrPC) – Section 129, Section 156, Section 156(3), Section 190, Section 200, Section 202, Section 204
Amitabh Bachchan Corpn. Ltd. Vs. Mahila Jagran Manch and Others, (1997) 10 JT 686 : (1997) 3 SCALE 17 : (1997) 2 SCALE 21 : (1997) 7 SCC 91
Tula Ram and Others Vs. Kishore Singh, AIR 1977 SC 2401 : (1978) CriLJ 8 : (1977) 4 SCC 459 : (1978) 1 SCR 615
Counsel for Appearing Parties
Mukta Gupta, Rajdipa Behura and Akshai Malik, for the Appellant; Virender Rawat, for R-1, for the Respondent
Shiv Narayan Dhingra, J.—This petition under Article 226/227 of the Constitution of India has been filed by the petitioners seeking quashing of order dated 27th April, 2006 and 28th April, 2006 passed by ACMM, New Delhi in a complaint case.
2. A complaint was filed before ACMM by an advocate on 27th April, 2006 stating therein that he was shocked on reading newspaper reports about the excess force used by the police officials against the peaceful demonstrators/ medical protestors/students protesting against the reservation policy in higher studies. The learned ACMM passed an order on the same day directing DCP, New Delhi to appear in person in Court on 28th April, 2006 and furnish a report in respect of the allegations of use of excessive force on demonstrators on 26th April, 2006. ACMM also sought a report regarding number of demonstrators arrested and their condition.
3. It is submitted that ACMM entertained the complaint without there being any victim of alleged use of force, only on the basis of newspaper report. There were no allegations of an offence having been committed by petitioner No. 2, but ACMM directed petitioner No. 2 to appear in person in the Court. Petitioners claimed that on 26th April, 2006 the agitating students were tried to be stopped from proceeding further however, students burnt effigies, shouted anti-reservation and anti-government slogans and without any provocation, a group of students became volatile and started running here and there. Police tried to stop the students on various points on Janpath by putting barricades and creating human chains of police officials but the students were bent upon reaching at 17, Akbar Road, New Delhi, residence of the Minister concerned. When the police was not able to control the students by peaceful means and students converted themselves into an unruly crowd, police was constrained to use water canon and two tear-gas shells. In controlling the mob four police officials sustained injuries however, no injury was sustained by the demonstrators.
4. On 28th April, 2006 learned ACMM directed petitioner No. 2 to place on record the rules/Office Orders/official standing orders and rules authorizing police to use minimum force and petitioner No. 2 was directed to investigate and identify the officers responsible for misbehavior and exploding the third tear gas shell as reported in one of the newspapers viz. The Statesman. It is submitted that orders dated 27th April, 2006 and 28th April, 2006 were beyond the jurisdiction and power of the learned ACMM. ACMM had not cared about the procedure laid down in Code of Criminal Procedure for entertaining a complaint.
5. It is undisputed that in the present case, complainant had not filed a complaint with any police station for registration of an FIR and he directly filed a complaint before ACMM on the basis of newspaper report. Complainant himself was not a witness to any of the incidents mentioned by him. Complainant is an advocate practicing in Patiala House Court.
6. There is a procedure prescribed under Cr.P.C. for entertaining a complainant by an MM/ACMM and it has been emphasized by this Court several times that Criminal Court is bound by the procedure as prescribed under law in respect of complaints and cannot transgress the limits of the law, Cr.P.C. does not give inherent powers to courts below High Court. The Court of ACMM could not have devised a procedure other than the one provided under Cr.P.C.
7. Section 190 Cr.P.C. provides that a Metropolitan Magistrate may take cognizance upon receiving a complaint, if the complaint discloses commission of an offence. Upon receiving a complaint u/s 190 Cr.P.C. a Magistrate is required to proceed either in accordance with Section 156 Cr.P.C. or in accordance with Chapter XV of the Code. If the Magistrate follows procedure u/s 156(3), Cr.P.C. the Magistrate can ask the police to register an FIR and submit a report after completion of investigation. The Magistrate has no power to ask a particular officer to appear in the Court on the very next day of sending the complaint and submit a report without any investigation. In the present case, the learned ACMM received the complaint in question, made by the complainant on the basis of the newspaper reports and asked the petitioner No. 2 to appear in person on next day in her Court and to give a report about use of force on demonstrators. The ACMM had no jurisdiction to summon the petitioner in Court in person to submit a report about use of force. ACMM has no supervisory jurisdiction over the petitioners, so as to summon them and call an Explanation.
8. A Magistrate can proceed with the complaint only where the complaint fulfills the basic requirement of the law. In Tula Ram and Others Vs. Kishore Singh, , the provisions of Cr.P.C. were considered in detail by the Hon’ble Supreme Court and following observations were made:
1. A Magistrate can order investigation u/s 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation u/s 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by police.
3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking cognizance u/s 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 of the Code (Para 14)
9. In the present case, the learned ACMM raised question about the use of excessive force by the police at the time of controlling the demonstrators. Chapter X of Cr.P.C. deals with maintenance of public order and tranquility and provides how an unlawful assembly should be dispersed. Any Executive Magistrate or Officer in-charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub- inspector has been given power to command any unlawful assembly, which is likely to cause disturbance of public peace to disperse. It shall be the duty of members of such assembly to disperse, if it is commanded to do so. In case, the assembly does not disperse and it conducts itself to show that it is determined not to disperse, the executive magistrate or police officer has been given power to disperse such assembly by force and, if necessary, by arresting and confining the persons, who form part of it.
10. Once law enjoins a duty upon an officer and gives him power to perform the duty, it gives enough discretion to the officer to take decisions necessary for the performance of his duty. Section 129 gives power to the Executive Magistrate and other officers to give command to the unlawful assembly to disperse and where it is seen that unlawful assembly is determined not to disperse, the power has been given to the police officer to disperse such unlawful assembly by use of force. How much force is necessary to disperse the unlawful assembly has to be the decision of Executive Magistrate or the police officer concerned. This decision is to be taken on the spot assessing the situation and the assessment of the situation has to be of the officer concerned. If there are 10 different persons in similar situation, they may have different assessment of the situation and may devise upon different methods of use of force. Since, the opinion of 10 persons may differ, it cannot be said that one person is right and another person is wrong or the assessment of ‘X’ would have been correct and assessment of ‘Y’ would have been incorrect. In a situation of maintenance of law and order decisions are to be taken instantly and there is not enough time for reflection. Such decisions are to be taken by the officer in-charge of the situation. The decisions about the kind of force to be used, where it is to be used, how much force is to be used are required to be left to the discretion of the officer. If this discretion is not given, no unlawful assembly can ever be controlled. A police officer, who is required to control the unlawful assembly cannot take into consideration the purpose for which the assembly has gathered. An unlawful assembly is unlawful assembly irrespective of the fact whether the people have assembled for a good cause or a bad cause. Neither there is a golden scale of quantum of force to be used, nor such a yardstick can be laid down by the Courts. The quantum of force to be used has to be determined by the officer concerned, the Court cannot substitute its own opinion or decision about the quantum of force which should have been used.
11. In Amitabh Bachchan Corpn. Ltd. Vs. Mahila Jagran Manch and Others, Supreme Court observed as under:
We have thought it proper to make this order as we are distressed that the Division Bench of the High Court should have entertained the petition. It was necessary to realise that merely because a section of the people were agitating against the holding of the Pageant, a world event, and had resorted to violence, demonstration etc. an international event could not be grounded or put under severe restrictions. The High Court should have realized that the rights of the organizers and other members of the society had to be protected if a law and order situation was created on account of such agitation, demonstration, etc. If for dealing with the threat to law and order, the State Government was required to use its Police Force or Security Forces, it was not proper on the part of the High Court to interfere and give directions in regard to the type of force to be used because it is very difficult in such situations to visualize what shape the demonstration and agitation may take and the type of law and order situation which may have to be dealt with. To restrain the State from using the BSF or the Armed Forces, it necessary would in certain situations create a very serious problem as the State would not be able to deal with it in case it turns ugly. This is not an area where the Court should exercise its jurisdiction and issue directions because it is difficult to anticipate how the situation will develop in course of time. This is a function which must be left to the executive as the judiciary is not equipped to deal with it.
12. I consider that the learned ACMM exceeded jurisdiction by ordering DCP to appear in person and by making observations about the kind of force used. In case any demonstrator or person got injured or was misbehaved he/she had liberty to approach the Court with the complaint about the assault meted out to him/her. The Court of ACMM could not have taken upon herself the responsibility of determining as to what should have been the quantum of force used. This was not the area within her jurisdiction.
13. It is also observed that several Metropolitan Magistrates have tendency of calling police officers to their Courts without their presence being required in any particular case, just because they want to demonstrate their power to call police officers in Court. Such a tendency must be curbed and such orders cannot be looked upon kindly. No police officer should be called to the Court unless his presence is required specifically for any cause or for any purpose and if a senior police officer is called to the Court he should not be allowed to waste his time in Court at the cost of public duties.
14. The writ petition is allowed. The orders dated 27th April, 2006 and 28th April, 2006 are hereby quashed.