SADIQ ALI Versus STATE
The applicant was convicted by the learned Civil Judge and F. C. M., Mehar, for an offence under section 217, P. P. C. and sentenced to pay a fine of Rs. 500, or in default to undergo R. I. for 3 months. The conviction and sentence were maintained in appeal, resulting in this revision application.
2. The facts involved in brief are as follows. .
3. It is alleged that on 9‑11‑1967, two persons had fallen down from; the roof of a bus bearing No. DAU‑969, in between Faridpur and Mehar. One of them was Moharram, the cleaner of the bus, and the other was a pass enger by the name of Muhkumdin. Muhkumdin was allegedly taken away by his relations, while Gul Hassan, the conductor of the bus and Moharram had gone to the Police Out Post, Faridabad. H. C. Amir Bux, the incharge of the Police Out Post had refused to record the report. While they were returning they had come across the applicant on the way, and the three of them had gone to the Police Out Post where Gul Hassan gave information of the incident which came to be recorded by the Head Constable Amir Bux in the Station Diary, and the entry was duly signed by the applicant. It was to the effect that while attempting to unload a gunny bag from the bus when it had stopped near the village Kamager, Moharram and Muhkumdin had fallen on the ground and sustained some injuries. It was also mentioned therein that Muhakumdin had gone away to his village. The matter rested there till the next day, whelp one Mazan reported the death of Muhkumdin to the S. H. O. Ahmed Bux of Mehar Police Station. The S. H. O. made inquiries from a number of witnesses, and later on had also the dead bode of Muhkumdin exhumed from the grave, in the presence of the Medical officer and the Mukhtiarkar, whereafter the autopsy was held there at the spot. Later on, the case against applicant was sent up for offences under sections 201, 213 and 217, P. P. C.
4. The applicant in his statement denied the allegations made against him, and alleged that he had been run down in the case at the instance of the District Police officials who bore grudge against him. He also examined some witnesses in support of the contention.
5. A number of witnesses have been examined in regard to the circumstances in which Moharram and Muhkumdin had fallen from the bus. One set of the witnesses had stated that the two of them were seated at the top of the bus and had lost the balance when the bus had sustained a jerk ; the other set saying that these two persons had fallen down while unloading a gunny bag.
6. It is an admitted position that the applicant was not present when the incident had taken place. It is further an admitted position that Muhkumddin had been taken away to his village. It is also nobody's case that any of the passengers was present when the applicant bad met Moharram and Gul Hassan. Gul Hassan was the conductor and Moharram was the cleaner of the bus. Quite a number of witnesses, including the S. H. O. had stated that Moharram had also sustained injury and that he was in the hospital, but the Medical Officer has not been examined at ail. What we know for well is, as was deposed by Moharram, that he and Gul Hassan had met the applicant and had accompanied him to the Police Out Post where Gul Hassan had lodged the report. The very perusal of the report shows that it was of a non‑cognizable nature. Moharram does not say that he had any serious injury, nor for the matter of that any of the other witnesses. This is apart from the fact that there is no medical evidence that way. So in the absence of Muhkumdin, there was nothing 'before the applicant to have any suspicion as to what had really happened. The S. H. O. has gone to the extent of saying that the applicant had neither gone to the wardat nor inspected the bus.
7. The next stage is, when the applicant reaches the Police Out Post and the entry in the Roznamcha is made. On the showing of the prosecution witnesses, the entry had been made by H. C. Amir Bux, though signed by the applicant. H. C. Amir Bux had not been examined at all, and therefore it cannot be said that it was dictated by the applicant himself. Even Moharram and Gul Hassan did not say that a false report was get recorded by the applicant. The third stage will be when some of the, witnesses are alleged to have gone to the applicant at the Police Out Post and apprised him of the real happenings. Then there are others who hack mentioned about the demand of Rs. 5,000 as bribe, which subsequently came to be scaled down to Rs. 200 and was paid in two instalments. However, none of these witnesses says that he had tried to lodge the report about the death of Muhkumdin, or the circumstances in which it came to a pass, or that the applicant had declined to lodge the report. Sanaullah is the uncle of N4ubkumdin and, on his own showing, had been to the Police Out Post on the night of the incident, when the permission for burial was accorded. He does not say however that he wanted to lodge the report and the same was declined from his side, the matter was closed.
7A. Be that as it may, there was never a case against the applicant for offence under section 218, P. P. C. The applicant was sent up for offence under sections 201, 213 and 217, P. P. C. and was convicted only on the last account. The question therefore to examine would be as to what were the directions of law disobeyed by the applicant in the discharge of his duties as a public servant. The further question as to what the intention was in discharging the directions of law, would arise thereafter. The simple position which arises in the case is that what was before the applicant at the material time was the report made by Gul Hassan which was patently of a non‑cognizable nature. Gul Hassan has got nothing to say apart from what was mentioned therein. As mentioned earlier, there was nothing to arouse the suspicion of the applicant as the injuries of Moharram are not substantiated from any where. It was therefore not for him to investigate the matter on his own. Section 155 of the Code of Criminal Procedure is very clear on the point.
8. Mr. Hussain Adil Khatri however preferred to section 23 of the Police Act and rule 25 (2) of the Police Rules, but they are very much wide of the mark. The applicant was in charge of a Police Out Post only and was therefore not an officer incharge as defined in section 4 of the Code of Criminal Procedure, even to proceed under section 174 of the Criminal Procedure Code. Nor is there any indication, that he was specially empowered in that behalf.
9. I am therefore of the opinion that the conviction of the applicant for an offence under section 217, P. P. C. cannot be sustained. 1 will therefore set aside the conviction and sentence, and allow the revision application. The fine which has been deposited by the applicant will be refunded to him. Revision allowed.