It would be of immense significance to note right at the very outset that the Maharashtra State Human Rights Commission (MSHRC) in a most learned, laudable, landmark, logical and latest order titled Ankita Shah Makheja and Anr v. Commissioner of Police, Nagpur and Anr in MAS/Case No. – 2529/13/17/2020 and in SHRC/MASA/6/2023/617 that was pronounced as recently as on June 9, 2022 ordered the payment of Rs 2.5 lakh as compensation to a Nagpur-based advocate and her husband for police harassment. For sure, it must be mentioned here that the case also prompted the MSHRC to direct the State’s Director General of Police (DGP) to hold periodical seminars to sensitize police officers. We thus see that in the present case, the police were clearly found guilty of violating the dignity and honour of the complainants.
At the very outset, this most learned, laudable, landmark and latest order by MSHRC member Hon’ble Mr MA Sayeed sets the ball in motion by first and foremost putting forth in para 1 that, “After having bestowed my anxious consideration on the merits of the rival contentions and the legal principles of human rights, the only issue which merits my consideration is whether a case justifying intervention by the Commission u/s 12 and 18 of the Protection of Human Rights Act, 1993 is made out by the complainants or not?”
To be sure, it is then lamented in para 2 on the unpalatable truth that, “For an effective and complete adjudication of this crucial issue, I would like to throw reflection on the factual background which unfortunately unfolds usual case of apathy, misuse of power by none other than the officers of law enforcing agency and what is more shocking and pinching to note is the fact that victim happens to be a member of legal fraternity, practicing in Nagpur.”
To put things in perspective, while elaborating on the facts of the case, it is then laid bare in para 3 that, “The ordeal started with a small incident of pelting of stones to stray dog by the victim’s neighbor on the night of 25.03.2020. The complainant as a law abiding citizen and being an Advocate approached Lakadganj Police Station for registering their report about the incident in question, and instead of registering her report, she and her husband (co-complainant) were subjected to undergo trauma of illegal detention, physical and mental torture and harassment, which came to be recorded initially by the complainant and then by her husband which resulted in more aggravated action of snatching away of their cell phones and being physically abused by the lady police constables as well as the other male police officials. It is in this peculiar backdrop that complainant Adv. Ankita Shah and her husband Shri Nilesh Makheja moved this Commission u/s 12 of the Act of 1993.”
As we see, it is then pointed out in para 3 that, “Ld. Commissioner of Police Shri Amitesh Kumar, Nagpur submitted detail report dated 24.10.2020, marked Ex. ‘B’, and very candidly admitted the occurrence of the incident in question as reflected from perusal of paragraphs 3 to 5 of the report. It is significant to note that disciplinary action under the Departmental Rules came to be taken against the erring police officers and officials by imposing monetary penalty and censure, as well as transferring them from the concerned police station.”
Do note, the Bench notes in para 4 that, “The Commission by way of abundant caution, directed the Spl. IGP, Investigation Wing attached with the Commission to conduct independent discreet enquiry and accordingly submitted detail report Ex. ‘E’ on 25.01.2021. Perusal of this enquiry report also reveals that occurrence of the incident is admitted and a bold opinion is given that the complainant and her husband were subjected to assault by the police officials/officers, causing voluntary hurt to them.”
Briefly stated, the Bench points out in para 5 that, “With such strong adverse reports on record, the Commission vide order 22.01.2021, issued show cause notices to the erring police officer/officials u/s. 16 of the Act of 1993, seeking their explanations. Accordingly, explanations vide Ex. ‘F’, ‘K’ came to be submitted. (Collective Exhibit is given to these explanations). I have gone through these explanations carefully, in which elaborate details about the complainant’s antecedents etc are set out. At the same time it is asserted that all of them have faced departmental action and the punishment is also imposed on them which infact is the blot on their unblemished service record and therefore, question of intervention by the Commission does not arise. It is asserted that they cannot be punished twice for the same act/default and therefore the complaint as such should be discarded at the threshold. In other words an attempt is made to take shield under the umbrella of Sec. 300 Cr.PC which speaks of “Rule of Double Jeopardy”.”
Quite significantly, it is then enunciated in para 8 that, “First of all I would like to deal with the legal issue raised by the respondent officers as regards the very maintainability of the present complaint on the ground of “Double Jeopardy”. The question therefore is whether the departmental action would bar the prosecution of the present complaint? The law on the issue has been examined and deliberated by the Supreme Court, High Courts in number of decisions/pronouncements and it has been concluded that the only condition precedent for application of principle of “Double Jeopardy” is that the person concerned has been prosecuted and punished for the same offence. No other ingredient can be added. It is further made clear that unless a person is not convicted or acquitted earlier for an offence based on the same facts, the question of Doctrine of “Double Jeopardy” contained in Article 20(2) or even u/s 300 Cr.PC would not come into picture. Reliance with advantage is placed on a decision of re-Imran Khan Sardar Khan, 2012 Cr. LJ 1367. The law on the subject is settled by Supreme Court in re-Mohammad Yusufmia, laying down distinct principle of Law that the purpose of departmental enquiry and of prosecution are two different and distinct aspects.
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