Refusing to quash a private complaint by a man who alleged custodial torture by former IPS officer Sanjiv Bhatt and then constable Pravinsinh Zala in 1990 during Jamjodhpur riots, the Gujarat High Court reasoned that “it would be too premature to hold at this stage” that the complaint is malafide.
Bhatt and Zala had petitions before the Gujarat HC in 1999 and 1996 respectively, seeking quashing of the private complaint by Mahesh Chitroda filed before a Bhanvad magisterial court for the offences punishable under IPC sections 325, 323 (voluntarily causing injury) and 114 (abettor present).
Earlier in March, Chitroda had orally informed the court that he wants to withdraw the complaint but two days later, he submitted on oath that he does not wish to withdraw the complaint. Bhatt, who was the additional superintendent of police of Jamnagar district in 1990, along with other police officials, had arrested 133 persons from Jamjodhpur town, including Prabhudas Vaishnani, who later died due to alleged custodial torture, for purportedly indulging in communal rioting during a nationwide bandh by the Bharatiya Janata Party (BJP) and Vishwa Hindu Parishad (VHP). The bandh call was in protest against then BJP national president LK Advani’s arrest during his rath yatra. Chitroda too was an accused and was allegedly arrested for being part of the riotous mob. Bhatt and Zala are facing life sentence after being convicted by a trial court in Jamnagar in June 2019, holding seven police officials (including Bhatt and Zala) guilty of custodial torture and death of Vaishnani.
In a verdict dated May 5, the court of Justice Nikhil Kariel noted that there were varying accounts of the incident put forward by the complainant Chitroda, constable Zala and former IPS officer Bhatt and opined that “in view of the varying stance it cannot be per se accepted that the applicants (Bhatt and Zala) were discharging their official duties at the time when the offense as alleged in the complaint had taken place.”
Three versions of the incident were presented before the court. Zala had submitted that he along with Bhatt had been discharging their official duties on the said date, trying to ensure that assembly that had gathered is dispersed and Bhatt and Bhatt along with other police officials had arrested the accused of the case, along with Chitroda .
Bhatt, on the other hand had submitted, that he had reached the city of Jamjodhpur at 12.30 hours ie after the arrest of the accused in the FIR case had been effected. Chitroda meanwhile had submitted that he was at his residence when the police officials including Bhatt and Zala had arrested him and his friends and in course of the arrest, Chitroda was assaulted. Chitroda in his complaint had also alleged that the cause for such assault was of a prejudice held by the police department against Chitroda and other members of public of Jamjodhpur Town, “more particularly since an agitation by the persons of the Town had resulted in suspension of certain police officials.”
In this regard, the court opined, “In the considered opinion of this court at this stage, without evidence being led it would not be possible for this court to come to a conclusion that the versions of the petition (Zala and Bhatt) ought to be accepted, as compared to the version of the complainant.” The court, however, added that “there is prima facie material to show that the complainant (Chitroda) had sustained injuries on account of an assault,” and going by the varying narration of events by different parties, “ it would be too premature to hold at this stage as regards the complaint being manifestly attended with mala fides.”
Justice Kariel also observed that in the case that led to Bhatt and Zala’s conviction in June 2019, “an independent witness has testedified to the fact that the complainant (Chitroda) was also injured” and the same thus “cannot be overlooked”, while adding that the court had found “no impeccable material on record” to suggest the presence of a riotous mob on the day of the incident.
Bhatt, through his advocate SM Vatsa, challenged Chitroda’s complaint mainly on the ground that the sanction for prosecution has not been granted by the State as required under Section 132 of Cr.PC, as well as Section 197 of Cr.PC
Public prosecutor Mitish Amin had opposed the quashing petitions, stating that the essential requirement to test whether sanction for prosecution while was necessary or not is to ascertain whether the public servant committing the alleged offence or act, was acting in discharge of public duty, and given the serious nature of claims, they required to be tested at the stage of trial.
The court held that the precedent laid down by the Supreme Court does not permit for conduction of “mini trial” for quashing petitions, and opined that in light of varying versions of the incident and limited and the evidence in the case “not being unimpeachable” , “this Court would not be justified, in holding that the petitioners (Bhatt and Zala) were entitled to get the benefit of provisions of (CrPC) Section 132” especially since Bhatt and Zala did not produce any prima facie material to show that their “discharge of duty” was in line with the requirements as laid down by SC.
Further relying on SC decisions, Justice Kariel pointed out that “the power of quashing should be exercised sparingly and with circumspection”, that quashing of a complaint “should be an exception” and only in cases where court’s “non-interference would result in miscarriage of justice, the Court should not quash a complaint”, should the court exercise its discretion.
Justice Kariel pronounced that the present “is not a case where the Court finds that noninterference would result in a miscarriage of justice”.
Refusing to quash the criminal complaint by Chitroda, the court however stayed the operation of the verdict for 12 weeks so as to permit Bhatt and Zala to approach a higher forum to appeal against the verdict.