Tarun Kumar (Executive … vs State (Nct Of Delhi) on 20 July, 2017

$~28

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(CRL) 3225/2016 Crl.M.A. 17477/2016 (stay)

% Date of Decision: 20.07.2017

TARUN KUMAR (EXECUTIVE MAGISTRATE)
….. Petitioner
Through Mr.Rakesh Kumar, Adv. with
Ms.Anubha Singh, Adv.

versus

STATE (NCT OF DELHI) ….. Respondent
Through Mr. Piyush Singhal, Adv. for
Mr.Ashish Aggarwal, ASC.
ASI Jaiveer Singh PS Khajuri
Khas.

CORAM:-
HON’BLE MR JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J (ORAL)

1. The petitioner, an Executive Magistrate, had conducted the
inquest proceedings in connection with FIR No.390/2012 dated
26.10.2012 (P.S.Khajuri Khas) which was instituted for the offences
under Sections 498A/306 IPC read with Section 4 of the Dowry
Prohibition Act, 1961. The accused persons of the case were
chargesheeted and were tried.

2. The petitioner appeared before the Trial Court as PW-5.

W.P(Crl.)3225/2016 Page 1 of 18

3. The Trial Court, while analyzing the deposition of witnesses in
his judgment dated 05.03.2016, came to the conclusion that the
manner in which inquest proceedings were conducted by the petitioner
was not proper; rather peculiar and objectionable. The Trial Court,
therefore, directed that a copy of the judgment to be sent to the
Secretary, Department of Home, Government of NCT to evaluate and
assess the conduct of the petitioner and take suitable action against
him. The Trial Court also directed that the report in that regard be filed
within eight weeks of the receipt of the order/judgment.

4. The petitioner, therefore, has prayed for setting aside/expunging
the observations made in the judgment, commenting upon the conduct
of the petitioner as an Executive Magistrate who held inquest and the
direction of learned Trial Judge to the Secretary, Department of Home,
Government of NCT to conduct an enquiry and take suitable action
against the petitioner.

5. The petitioner, it has been argued, was posted as an Executive
Magistrate, Seemapuri, Shahdara and was additionally looking after
Seelampur division. He received information on 27.10.2016 about a
lady having suffered burn injuries for which she was being treated at
Safdarjung Hospital. A request was made to the petitioner by the
police to come to Safdarjung Hospital. It has been submitted that
pursuant to the aforesaid request, the petitioner reached Safdarjung
Hospital at 1 pm where and when he was informed that the victim had
died. At that time, the body of the deceased was being shifted to the
mortuary for post mortem. It was then that the petitioner recorded the
statement of the father of the deceased which was written down by a

W.P(Crl.)3225/2016 Page 2 of 18
police officer, on his direction. The statement of the father of the
deceased was read over to him, who thereafter put his thumb
impression on the same. After this, the statement of one Amrita, sister
of the deceased was also recorded in the same manner. The statement
of mother of the deceased was also recorded which was taken down by
her daughter in the presence of the petitioner and the statement, after
being explained to her, was signed by her as well. All these statements
were counter-signed by the petitioner. The petitioner, then, handed
over those statements to the IO of the case to be handed over to the
SHO of the concerned police station for the sequel action. On
27.10.2012, the petitioner also went to the Safdarjung hospital
mortuary and completed the inquest proceedings. Inquest report was
prepared on which the petitioner made his endorsement. Thereafter,
the case was investigated and the accused persons were sent up for
trial.

6. The petitioner, it has been submitted, appeared before the
learned Trial Court on summons and gave his deposition as PW-5.

7. The Trial Court acquitted the accused persons on the ground
that though the PWs.1, 3 4 namely Lokender Singh, father of the
deceased; Amrita, sister of the deceased and Smt.Bela Devi, mother of
the deceased, respectively, stated about the cause of death of the
deceased to be the dowry demand by all the accused persons and
harassment of the deceased but failed to prove the aforesaid charges.
The Trial Court also took note of the fact that the deceased had denied
any harassment to her. Her last statement was recorded by PW-6, SI
Balbir Singh, in the hospital in presence of one Dr.Sanjay. However,

W.P(Crl.)3225/2016 Page 3 of 18
while analyzing the statements of aforesaid PWs namely PWs.1, 3
4 and PW-7 namely Rohin who is the son of the deceased, the Trial
Court found that the aforesaid PWs categorically denied their having
made any statement before the petitioner.

8. The petitioner as PW-5 had stated before the Trial Court that on
the date of the incident i.e. 26.10.2012, he reached Safdarjung
Hospital at 1 pm on information from Khajuri Khas police station. By
that time the deceased had been declared dead and her dead body was
being sent for post mortem. At that time, the parents of the deceased
and the police officials were also present. The statement of the father
of the deceased (PW-1) was recorded by him (Exh.PW-2/D) but
written down by the IO of the case. Similarly, the statements of the
sister and the mother of the deceased namely PWs.3 4 were also
recorded. Their statements are Exh.PW-3/D and PW-3/D1. It was
clearly deposed by the petitioner that on 29.10.2012, he had gone to
the mortuary of the Safdarjung hospital and had completed the inquest
proceedings. The dead body was identified by witnesses. The
petitioner had filled up the inquest form and had made a request to the
doctor for post mortem. The petitioner also had signed the death
summary. On his endorsement, the dead body was released in favour
of the relatives/family members.

9. While deposing before the Trial Court, the petitioner made a
categorical statement that he had recorded the statements of PWs.1, 3
4 in the park situated in front of the Burn Ward of the Safdarjung
hospital.

W.P(Crl.)3225/2016 Page 4 of 18

10. However, SI Dhyan Singh, PW-10 has stated that he had
informed the SDM, Seelampur about the incident but since SDM,
Seelampur was on leave, SDM, Seemapuri division i.e. the petitioner
visited the Burn Ward, Safdarjung hospital and conducted the
proceedings there. According to his statement, the petitioner reached
the Safdarjung Burn Ward at about 2.45 pm but by that time the
deceased had already expired. He has also affirmed before the Trial
Court that the petitioner visited the mortuary, inspected the dead body
and recorded the statement of PWs.1, 4, 5 6.

11. Constable Satbir, PW-13 deposed before the Trial Court that the
petitioner did not record the statements of the witnesses but their
statements were recorded by SI Dhyan Singh, PW-10.

12. It is in this context that the Trial Court observed that because of
the peculiar manner of holding the inquest proceedings, the witnesses
denied that they were ever interrogated by the petitioner in his
capacity as SDM. The Trial Court also took exception to the fact that
the entire inquest proceedings were conducted in the park in front of
the lawns of the hospital and that also in presence of the police
officials.

13. The Trial Court, therefore, recorded as follows:-

“57. With the similar object, PW5 was informed to
conduct the inquest proceedings and he also conducted
the proceedings, but he presumed that the death occurred
within seven years of marriage of deceased (whereas it
was beyond seven years) and conducted the entire
proceedings. But, still he conducted the proceedings in
such vague manner. PW5 was supposed to conduct the
inquest proceedings in proper and magisterial manner

W.P(Crl.)3225/2016 Page 5 of 18
especially when proceedings were being conducted in the
manner of dowry death. However, the procedure adopted
by him was an open enquiry and in the presence of police
officials.

58. In fact, the presence of police is not to be considered
safe during the examination/interrogation of witnesses by
the SDM/Executive Magistrate, in this case, PW5 not
only carried out the inquest proceedings in the presence
of police officials but also utilized the services of IO in
recording the statement of PW1 and PW3 at hospital.
Besides it, PW5 got recorded statement of PW4 through
PW3 despite the fact that she was witness to this case and
there were serious allegation of dowry death. Even the
presence of in-laws of deceased was also not avoided and
entire proceedings were conducted in their presence as
well.

59. Even the conduct of PW5 also could not be
appreciated on one another aspect as well. As per the
testimony of PW5, he reached Safdarjung Hospital at
1.00 pm and by that time deceased had already expired.
But, PW10 SI Dhian Singh has deposed that deceased
was alive when the SDM reached the hospital. Even the
document EXPW5/4 prepared by PW5 has also proved
that the time of death was 2:45 pm. It is beyond
explanation if deceased had already expired then why he
noted down the time of death of deceased at 2:45 pm in
the inquest papers in contradiction to the death summery
of deceased which is EXPW5/6. In such circumstances, if
deceased was alive, PW5 was supposed to verify the
statement/suicide note of deceased from her and to
record it again or to certify it, but nothing such was done
by him.

60. Though the testimony of PW10 is against the death
summery of deceased Ex. PW5/6 prepared by the doctor
and certified by PW5 which has proved that she died at
12:20 pm, yet the PW5 did not go through it before

W.P(Crl.)3225/2016 Page 6 of 18
conducting the inquest proceedings and reflects the
casual approach of the PW5 in conducting inquest.

61. The statement of deceased had been recorded by
PW6 in the presence of Dr. Sanjay but PW5 did not
bother to go through that statement and even did not try
to interrogate or record the statement of the concerned
doctor Sanjay, who provided the certificate of fitness to
deceased to make statement, to ascertain the statement of
the deceased especially when the complainant and other
witnesses enraged the allegations against the police. Had
it been done so by the PW5, the controversy would have
rested upon, but he did not try to do so and generated a
new controversy that the statements of witnesses were not
recorded by him. It is beyond explanation as to who
precluded the PW5 to record the statement of that doctor.

62. PW6 had already recorded the statement of deceased
at 11:00 am in the presence of Dr. Sanjay who gave
certificate at point A on Ex. PW6/1 that she was
“conscious, oriented and not under seduction and is fit
to give statement “, but PW5 did not examine him to
prove this fact. In fact, the lapses on the part of the then
SDM Sh. Tarun Kumar cannot be considered bonafide
lapse on his part. Rather it was a casual approach or
negligence to deal with a serious matter in which life of a
person was on stake. Even he did not go through the
documents properly to ascertain the period of marriage
to come to the conclusion that it was not a dowry death
within the period of seven years of marriage in terms of
section 304B IPC. As such, PW5 had failed to discharge
his statutory duty properly in terms of section 176 the
Code of Criminal Procedure.

63. In fact, the allegations of family members of deceased
may be because of the modus operandi adopted by PW5
in recording the statements of family members through
IO and they might have presumed that PW5 never
conducted any such proceedings at hospital. Though the
mode and manner of conducting inquest proceedings by

W.P(Crl.)3225/2016 Page 7 of 18
PW5 was not in consent with admitted norms of inquest
proceedings, yet it cannot be said that no proceeding was
carried out at hospital. As such, the statements of family
members of deceased in exclusion of their earlier
statements have failed to prove that accused instigated
the deceased to commit suicide.

XXXX XXXX XXXX XXXX XXXX

79. The copy of this judgment is sent to the Secretary,
Deptt. Of Home, Govt of NCT, Delhi to appraise the
conduct of the then SDM/Executive Magistrate Sh. Tarun
Kumar to take suitable action against him. Report be
filed within eight weeks on receipt of copy of judgment.”

14. The learned counsel appearing for the petitioner submits that the
petitioner, as an officer holding the inquest proceedings was to
evaluate the criminal intent of the accused persons in case of an
unnatural death. The petitioner, under Section 176 Cr.P.C, it has been
urged, was not beset with the investigation of the case for which only
the investigating officer is responsible. It has also been submitted that
there are no rules or guidelines for holding any inquest proceeding and
whatever appeared prudent under the circumstances, the petitioner did
the same with all the diligence at his command. It is thus argued that
in the absence of any malafide intentions and without putting the
petitioner on notice regarding any animadversion about his conduct,
adverse comment ought not to have been made by the Trial Court. The
petitioner laments that the Trial Court did not stop at making adverse
comments on the manner in which inquest proceedings were
conducted but also directed the Secretary Home department to conduct
proceedings against the petitioner and take suitable action. The

W.P(Crl.)3225/2016 Page 8 of 18
Secretary Home was also directed to report to the Trial Court about the
action taken against the petitioner. The petitioner, therefore, submits
that such a comment and direction, which is uncalled for in the facts of
this case, has damaged his reputation as an officer and has caused
irreparable harm to him which has a prejudicial effect on the service
career.

15. In order to appreciate as to what was expected of the petitioner
as SDM conducting inquest proceedings, it would be necessary to
refer to Sections 174 and 176 of the Code of Criminal Procedure:-

“174. Police to enquire and report on suicide,
etc.

(1) When the officer in charge of a police station or
some other police officer specially empowered by the
State Government in that behalf receives information
that a person has committed suicide, or has been
killed by another or by an animal or by machinery or
by an accident, or has died under circumstances
raising a reasonable suspicion that some other
person has committed an offence, he shall
immediately give intimation thereof to the nearest
Executive Magistrate empowered to hold inquests,
and, unless otherwise directed by any rule prescribed
by the State Government, or by any general or
special order of the District or Sub- divisional
Magistrate, shall proceed to the place where the body
of such deceased person is, and there, in the presence
of two’ or more respectable inhabitants of the
neighbourhood, shall make an investigation, and
draw up a report of the apparent cause of death,
describing such wounds, fractures, bruises, and other
marks of injury as may be found on the body, and
stating in what manner, or by what weapon or
instrument (if any); such marks appear to have been
inflicted.

W.P(Crl.)3225/2016 Page 9 of 18

(2) The report shall be signed by such police officer
and other persons, or by so many of them as concur
therein, and shall be forthwith forwarded to the
District Magistrate or the Sub- divisional Magistrate.
(3) When-

(i) the case involves suicide by a woman within seven
years of her marriage; or

(ii) the case relates to the death of a woman within
seven years of her marriage in any circumstances
raising a reasonable suspicion that some other
person committed an offence in relation to such
woman; or

(iii) the case relates to the death of a woman within
seven years of her marriage and any relative of the
woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death;
or

(v) the police officer for any other reason considers it
expedient so to do, he shall. subject to such rules as
the State Government may prescribe in this behalf,
forward the body, with a view to its being examined,
to the nearest Civil Surgeon, or other qualified
medical man appointed in this behalf by the State
Government, if the state of the weather and the
distance admit of its being so forwarded without risk
of such putrefaction on the road as would render
such examination useless.

(4) The following Magistrates are empowered to hold
inquests, namely, any District Magistrate or Sub-
divisional Magistrate and any other Executive
Magistrate specially empowered in this behalf by the
State Government or the District Magistrate.

176. Inquiry by Magistrate into cause of
death.

(1) When any person dies while in the custody of the
police or when the case is of the nature referred to in
clause (i) or clause (ii) of sub- section (3) of section
174] the nearest Magistrate- empowered to hold

W.P(Crl.)3225/2016 Page 10 of 18
inquests shall, and in any other case mentioned in
sub- section (1) of section 174, any Magistrate so
empowered may hold an inquiry into the cause of
death either instead of, or in addition to, the
investigation held by the police officer; and if he does
so, he shall have all the powers in conducting it
which he would have in holding an inquiry into an
offence.

(2) The Magistrate holding such an inquiry shall
record the evidence taken by him in connection
therewith in any manner hereinafter prescribed
according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient
to make an examination of the dead body of any
person who has been already interred, in order to
discover the cause of his death, the Magistrate may
cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section,
the Magistrate shall, wherever practicable, inform
the relatives of the deceased whose names and
addresses are known, and shall allow them to remain
present at the inquiry.”

16. Thus in cases involving suicide by any woman within seven
years of her marriage or if the case relates to death of a woman within
seven years of marriage under suspicious circumstances, a Magistrate
is required to hold an enquiry into the cause of death either instead of,
or in addition to, the investigation held by the police officer. While
holding the inquest proceeding, a Magistrate has all the powers as if he
were holding an enquiry into an offence. However, with the addition
of Section 1A to Section 176 Cr.P.C, the inquest proceedings have
become mandatory if it relates to cause of death of a person while in
police custody.

W.P(Crl.)3225/2016 Page 11 of 18

17. The original purpose of Section 174 was that an enquiry into a
suspicious death ought not to be limited upon the holding of inquest by
a police officer but there should be a further check, enabling the
Magistrate to hold an enquiry. Magisterial inquest becomes mandatory
when a woman dies within seven years of her marriage, raising
reasonable suspicion that some person has committed the offence and
on the death of a person in police custody. Thus, in dowry death cases,
apart from custodial death cases, a Magisterial enquiry need be
conducted.

18. Under section 1A of Section 176 Cr.P.C i.e., in cases of
custodial death, the Magisterial enquiry would definitely involve
enquiry into the conduct of a police officer but may not necessarily be
so in dowry death cases where more often than not, there are specific
complaints by the relatives of the deceased against her husband and
the in-laws. Thus a Magisterial enquiry into a dowry death case, which
is not in the first instance clueless, the enquiry revolves around
ascertaining as to whether the deceased has died in doubtful
circumstances and if so, what is the apparent cause of death. The
object of proceedings under Sections 174 176 are limited and
cannot be undertaken to mean a full fledged investigation or trial. It is
precisely for this reason that only with respect to cases falling under
Sections 174 (3) (i) (ii) namely suicide of a woman within seven
years of her marriage and death of a woman within seven years of her
marriage in any suspicious circumstances, a Magisterial enquiry is a
must. However, in other cases, there is no compulsion of a Magisterial
enquiry. Thus neither a police inquest nor a Magisterial inquest ought

W.P(Crl.)3225/2016 Page 12 of 18
to be misunderstood as a full fledged investigation or a trial. The
questions regarding the details viz. as to how the deceased was killed,
who was the main person behind the killing and that what are the
circumstances for such death or whether the relatives of the deceased
are falsely implicating the accused persons are beyond the scope of the
inquest proceedings. The object is only to find out as to whether it is
homicidal in nature or not and it is confined to ascertainment of the
apparent cause of death namely whether it was accidental, suicidal or
homicidal or caused by any animal and by what manner or by what
weapon or instrument. Only in cases where there is a custodial death,
there would be a necessity of holding an absolutely independent
enquiry. So far as other enquiry is concerned, it is argued, it may be in
addition to or independently of the enquiry by a police officer.

19. No specific procedure for holding inquest proceeding has been
framed and it has been left primarily to the discretion of the learned
Magistrate. It is only under Section 1A of Section 176 Cr.P.C where
inquest is held with respect to custodial crime that the Magistrate is
required to record the evidence in a manner which is prescribed
according to the circumstances of the case.

20. Thus, the petitioner reached the hospital and recorded the
statement of the relatives of the deceased. Of course, he ought to have
recorded the statement of the doctor PW-6 also who had recorded the
last statement of the deceased but his not doing so cannot be
specifically held against him as he being careless and adopting a
cavalier approach in conducting inquest in a serious case.

W.P(Crl.)3225/2016 Page 13 of 18

21. There is some discrepancy with respect to the time at which the
petitioner reached the Burn Ward of Safdarjung hospital. However,
such discrepancy may or may not have been prejudicial, to either side,
later in the trial. The Trial Court judgment also does not reflect as to
whether charges were proved against anti-timing or post-timing of the
death. In such circumstances, the presence of a police officer, while
the petitioner was holding the enquiry, would not render the
proceedings doubtful. Firstly, it was not a custodial death case and
secondly, the father, mother and sister of the deceased talked about
dowry demand and harassment of the deceased which goaded her to
commit suicide. In the facts of this case, therefore, when there was no
apparent ambiguity about the death being suicidal, recording of
statements of the witnesses by the petitioner but noted down by a
police officer, cannot be seriously faulted with.

22. From the circumstances of the case and materials available it
appears that the relatives of the deceased had assembled at the Burn
Ward of the hospital. Recording of their statements, therefore, in front
of the Burn Ward, in the lawns, is only suggestive of the prompt
nature of enquiry to ascertain whether the death was in unnatural
circumstances, perhaps suicidal. It was only after the ascertainment of
the suicidal nature of death and the allegations leveled by the relatives
about demand of dowry and harassment, that the petitioner directed for
immediate lodging of the case and investigation in the same thereafter.

23. This Court is at a loss to understand as to what was the
expectation of the Trial Court with regard to the manner and the
conduct of the inquest proceedings, from the petitioner.

W.P(Crl.)3225/2016 Page 14 of 18

24. Lest this Court may not be misunderstood, it is not improper to
expect a higher degree of alacrity from a Magistrate conducting
inquest proceedings but nothing can at all be held against a person if
he has conducted himself in all fairness and promptitude. The
petitioner could have asked the witnesses to come over to his office to
record their statements or could have gone to their respective houses
for recording of their statements. That would have taken time. This
Court does not see anything wrong in recording the statement of the
witnesses in the hospital only and that also immediately after the
occurrence.

25. Any adverse comment on an officer or an authority, in a judicial
pronouncement, can cause immense damage to the reputation of the
concerned person. Strictures in a judgment/order are not uncommon
and are taken as an adjunct of the judicial expression. Many a times
while delivering judgment or writing an order it becomes necessary to
adjudicate the conduct of any person. A Court of law has an inherent
power to act upon and voice its conviction but as a general principle, it
should be resorted to only with lot of circumspection and caution and
definitely not under the circumstances when it is not necessary for the
decision of the case. Such a restraint is necessary because an uncalled
for stricture can be very damaging. The person commented upon, is
not on notice that his conduct also can be commented upon. With an
uncalled for stricture/adverse comment, there is no remedy to the
person commented against and he, in a way, is condemned without
being heard. It is a general principle of law without any dispute that
condemnation of a person without affording him an opportunity of

W.P(Crl.)3225/2016 Page 15 of 18
being heard is a complete negation of his basic rights. It is not
necessary that in every case where stricture is passed, necessarily the
person concerned is to be heard. It will depend upon the circumstances
of any given case. In the present case, the petitioner, in his capacity as
a Magistrate would be rendered a victim because, to his understanding,
he conducted the proceedings in accordance with law and to his
satisfaction.

26. The superior Courts have always applied a three pronged test
for considering whether any disparaging remark or comment ought to
be allowed to remain on record or be expunged – i) whether the
concerned person had an opportunity of explaining or defending
himself; ii) whether there is an evidence on record bearing on the
wrong conduct of the person concerned, justifying the comment and

iii) whether such comment was necessary for the decision of the case.

27. Recording of displeasure in a judgment is one thing and
directing a departmental proceeding is another and more serious
decision of the Court. Directing for taking suitable action against an
officer virtually finds that officer guilty which may not be the
normal/permissible procedure.

28. The Supreme Court of India in Testa Setalvad vs. State of
Gujarat, (2014) 10 SCC 88 reiterated as follows:-

“9. Observations should not be made by courts against
persons and authorities, unless they are essential or
necessary for decision of the case. Rare should be the
occasion and necessities alone should call for its resort.
Courts are temples of justice and such respect they also
deserve because they do not identify themselves with the

W.P(Crl.)3225/2016 Page 16 of 18
causes before them or those litigating for such causes.
The parties before them and the counsel are considered
to be devotees and pandits who perform the rituals
respectively seeking protection of justice; parties directly
and counsel on their behalf. There is no need or
justification for any unwarranted besmirching of either
the parties or their causes, as a matter of routine.

10. Courts are not expected to play to the gallery or for
any applause from anyone or even need to take up
cudgels as well against anyone, either to please their
own or anyone’s fantasies. Uncalled-for observations on
the professional competence or conduct of a counsel, or
any person or authority or harsh or disparaging remarks
are not to be made, unless absolutely required or
warranted for deciding the case.”

29. Even if there was a lapse on the part of the petitioner as an
Executive Magistrate, the Trial Court ought to have recorded, if it felt
like, in its judgment and warned him for being more diligent/serious in
the future. Directing the administrative authorities to enquire into the
conduct of the petitioner and thereafter take suitable action against him
was highly unnecessary and improper.

30. A reading of the judgment leaves an impression that the
petitioner, as a functionary of the State, has been convicted whereas
the accused persons of the case have been acquitted.

31. Thus, the observations of the Court, the comments regarding
holding of inquest proceeding in a peculiar/vague manner by the
petitioner and direction to the Secretary, Home department, Govt. of

W.P(Crl.)3225/2016 Page 17 of 18
NCT of Delhi for “appraising” the conduct of the petitioner and taking
suitable action against him are not in consonance with law and
practice. Such observations and direction are, therefore, expunged and
deleted from the judgment.

32. The petition is allowed but without costs.

ASHUTOSH KUMAR, J
JULY 20, 2017
k

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