Defence of ‘superior order’ not available where subordinates are well aware of factual matrix; 8 police personnel held guilty under Section 330 IPC: SC

“Police force needs to develop and recognize the concept of democratic policing.”

Supreme Court: The Bench comprising of N.V. Ramana and Mohan M. Shantanagoudar, JJ., addressed an appeal filed against the order and judgment of the Bombay High Court. “The present matter deals with police being the violators of law, who had the primary responsibility to protect and uphold law.”

In the present matter, Police Inspector Narule (A-1) was informed about a case of loot that had occurred 8 days before the information was placed. It is stated in the facts of the appeal filed that, A-1 along with nine other officers was on patrolling along with the informants of the incident of loot and all of them together reached HCP Telgudiya who found out that the person involved in the incident of loot was a person named ‘Anthony’. The HCP later confirmed that a person named ‘Joinus’ (deceased) used to live nearby and was a known suspect. A-1 reached the house of ‘Joinus’ where they all the accused persons molested ‘Zarina’, wife of ‘Joinus’ who was tied to a pole and beaten up with a stick and later all his family members were taken to different parts of the city. Thereafter later in the night, ‘Joinus’ was brought to the police station. The next morning he was found to be dead which lead to the investigation and charging on the ten erring officers.

The Supreme Court dealt with the above-stated matter by intensively taking up 4 questions one after another to reach a decision.

  • First question was “Whether the incident narrated amounted to murder in order to attract Section 302 IPC?” Bench while answering this question analysed Section 299 IPC and stated that causal link between the injuries caused by erring officers and death of deceased are not connected, further not attracting Section 299 which raises no question of attracting Section 302 or 304 IPC.
  • Second question was with respect to the defence of superior order or infamously known as ‘Nuremburg Defence’ pleaded by accused-appellants (sub-ordinate officers). Bench stated that the said argument was raised only to take advantage of the situation where A-1 had passed away in order to seek re-trial, the Court did not take this issue into consideration.
  • Third question was in regard to A-10 not being present with the investigating party at the time of patrolling; thereby his acquittal of the charges framed. For this question, the bench while quoting “It is wrought in our criminal law tradition that the Courts have the responsibility to separate chaff from the husk and dredge out truth”, stated that the presence of reasonable doubt exists on A-10 being there, therefore High Court’s findings on this particular aspect won’t be disturbed.
  • Fourth question to reach the conclusion of the matter concerned punishment under Section 330 IPC, for this the bench stated that no material is found to interfere with the conviction.

Therefore, on consideration of the facts of the case, it was evident that police was well-aware of the fact that the deceased was different from the person against whom they wanted to initiate investigation. Court found it appropriate to increase the term of the sentence to maximum imposable period under Section 330 IPC and directed the appellant-accused to surrender before the authorities. [Yashwant v. State of Maharashtra,2018 SCC OnLine SC 1336, decided on 04-09-2018]

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