Delhi District Court
Vide This Order I Shall Dispose Off This ... vs State & Anr. 1/12 on 18 March, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
CR No. 8/2021
PS : Karawal Nagar
Sandeep Kumar
S/o Sh. Yogendra Pal
R/o C-502, Jyoti Nagar Police Colony,
Delhi -110032
Presently posted as Sub Inspector,
Special Branch, Delhi
Versus
1. State of GNCT of Delhi
(Through Public Prosecutor) Resp. No.1
2. Sh. Shyam Sunder
S/o Late Sh. Mangat Ram
R/o house no. 375, Gali no. 9,
Phase -5, Shiv Vihar, Karawal Nagar,
Delhi-110094 Resp. No.2
Date of assignment : 23.02.2021
Date of Arguments : 10.03.2021
Date of Pronouncement : 18.03.2021
Order :
1. Vide this order I shall dispose off this Revision Petition filed
by the Revisionist / Petitioner against the order dated 17.02.2021
passed by Ld. MM thereby directing the SHO concerned to register
an FIR against the custodial death of one Deepak @ Popa who was
confined to police lock up and committed suicide under suspicious
CR No. 8/2021 Sandeep Vs. State & Anr. 1/12
circumstances. Revisionist was IO of the case in which accused/
deceased was arrested and Ld. MM has directed to investigate the
matter as per law after lodging FIR and also to file a compliance
report within 7 days.
2. Aggrieved by the order of registration of FIR, revisionist SI
Sandeep Kumar, who was IO in that case, has shown his concerned
on the ground that this FIR is going to affect his future prospects, as
he may be treated as accused in this case for such custodial death,
whereas it was a suicide and Judicial Inquiry conducted by the Ld.
MM has already proved it and has given him a clean chit. Not only
this, revisionist has also faced a departmental enquiry for similar
allegations and has also been exonerated which has further fortified
his innocence. It is further argued that as per allegations of the
Respondent No. 2 before the court of Ld. MM, revisionist allegedly
demanded a bribe of Rs. 30,000/- in lieu of released of accused/ deceased, in failure, he was allegedly threatened to implicate further, but this allegation is false as accused was arrested from Karkardooma Court Complex being wanted in a case and, if he was duly arrested within the knowledge of the family members, then it was not possible to revisionist to release him even after accepting bribe. It is further argued that false allegations have been leveled against revisionist after the death of accused/ deceased. It is further argued that if the allegations of respondent are believed then the alleged suicide was result of failure to pay bribe and has become a case of corruption which is to be dealt with by Special Court under the Prevention of Corruption Act and not by Ld. MM who was not CR No. 8/2021 Sandeep Vs. State & Anr. 2/12 authorized to direct to an FIR and to take cognizance in the case. In support of his argument, Ld. Counsel has relied upon a case titled Anil Kumar v. M. K. Aiyappa 2013 (X) AD SC 386.
3. Ld. Counsel for revisionist has further argued that a prior sanction was required to direct an FIR and to investigate this case pertaining to corruption allegations and revisionist being a public servant is protected from such investigation for the want of sanction before ordering investigation under Section 156 (3) of Cr.P.C. It is further argued that best option available with the Ld. MM was to return the complaint filed by Respondent no.2 in terms of section 201 Cr.P.C. In support of his argument, Ld. Counsel has relied upon case titled Ashoo Surendranath Tiwari v. Deputy Superintendent of Police, EOW, CBI, Criminal Appeal No. 575/2020. Ld. Counsel for the revisionist has further contended that Ld. Trial Court swayed by emotions and exercised wrong jurisdiction, due to impugned order is liable to be set aside.
4. On the other hand, Ld. Addl. PP for State has opposed this revision on the ground that the order of Ld. MM is not bearing any illegality or infirmity and same is liable to be affirmed.
5. Ld. Counsel for Respondent no. 2 has strongly opposed this revision thereby raising multiple objections. She has vehemently argued that the death of deceased Deepak @ Popa, who was in the police custody/ lock up, was result of police actions and he died by committing suicide under highly suspicious circumstances for which CR No. 8/2021 Sandeep Vs. State & Anr. 3/12 investigation was/is required, but police have not carried out any such investigation regarding the mode and manner of such suicide or the circumstances under which accused died. It is further argued that revisionist is deliberately trying to convert a case of custodial death into a case of corruption just to oust the jurisdiction of the Ld. MM, otherwise that demand of bribe was the reason to implicate the deceased in a false case and also the reason of his death and the conduct of police officials during the entire incident was highly suspicious. It is further argued that deceased was allegedly arrested in a case and was supposed to be medically examined immediately before putting him in lock up, but he was not subjected to medical examination just to manipulate things. It is further argued that it is the duty of the police to investigate every unnatural death and such death cannot be connected to corruption to take away the jurisdiction of the court, whereas police atrocities are not covered under the color of official duties of the police men. It is further argued that every custodial death requires a thorough investigation as well as judicial inquiry, for which, FIR is a condition precedent as laid down in R. Kasthuri v. State, 2014 SCC Online Mad 12579. It is further argued that Ld. Counsel for revisionist has much emphasized on the finding of Judicial Inquiry by Ld. MM, but this Judicial Inquiry is equivalent to inquest report only which is to be conducted to ascertain the cause of death as laid down in R. Nitesan Vs. State, 2016 SCC Online Mad 23110. It is further argued that inquest report under section 176 (1A) of Cr. PC is not possible without lodging an FIR as held in P. Rajakumari V. Additional Director General of Police, 2014 SCC Online Mad 7106. It is further argued that inquest CR No. 8/2021 Sandeep Vs. State & Anr. 4/12 report prepared by Ld. MM cannot be equated to investigation conducted by the police as held in State Of N.CT of Delhi v. Ajay Kumar Tyagi, 2012 (9) SCC 685 and FIR is mandatory.
6. Ld. Counsel for the respondent has further argued that exoneration of revisionist in departmental inquiry is not a ground to refuse investigation as standard of proof to prove misconduct in departmental enquiry is much lesser than standard of proof required in criminal trial and both proceedings are altogether different. It is further argued that police officials are involved in this case and complainant cannot collect evidence from Police Station to prove his complaint under Section 200 of Cr.P.C., due to police investigation is necessary to collect all material evidence and assistance of specialized agency is required. It is further argued that this revision petition is liable to be dismissed as order passed by Ld. MM is not bearing any illegality or infirmity.
7. I have heard the arguments and gone through the record. The arguments of Ld. Counsel for revisionist are two folds. Firstly, he has argued that the complaint of the Respondent no.2 herein is bearing the allegations of demanding bribe of Rs. 30,000/- in lieu of release of one Deepak, who later on committed suicide, due to this case is pertaining to illegal demand of bribe and Ld. MM was not legally authorized to direct FIR in this case. Secondly, a Judicial Inquiry has already been conducted to enquire the cause of death as well as guilt of police officials but no lapse was pointed out on the part of any police officials including revisionist. Even revisionist has also faced a CR No. 8/2021 Sandeep Vs. State & Anr. 5/12 departmental enquiry pertaining to the same incident and has been exonerated and now this investigation amounts to double jeopardy.
8. To decide both the pleas of the revisionist, firstly it is to be seen as to what is the nature and status of Judicial Inquiry con- ducted under section 176(1-A) of Cr.P.C by the Ld. MM. The relevant Section is as under:
176. Inquiry by Magistrate into cause of death.- (1) 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 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.
9. After going through the above said section, it is clear that a power has been conferred upon Ld. MM to hold an inquest regarding the unnatural death of an inmate / accused in police custody to ascertain the "cause of death" and this inquiry shall be "either instead of, or in addition to" police investigation. For conducting such inquest or inquiry, the procedure of section 174 has to be followed. However, this section is well clear that a Judicial Inquiry conducted under this section is confined to the "cause of death"
only and police investigation is not barred simultaneously.
10. Further, section 176 (1-A) of Cr.P.C. contemplates for conducting an independent inquiry by a Judicial Magistrate or by a Metropolitan Magistrate and this inquiry cannot be treated as substantive piece of evidence as held by the Hon'ble High Court of CR No. 8/2021 Sandeep Vs. State & Anr. 6/12 Madras in case tilted R. Natesan v.. State represented by Deputy Superintendent of Police, 2016 SCC Online Mad 23110. Even this inquiry is in addition to the inquiry or investigation by the police and scope of such inquiry is just to ascertain the "cause of death". A Magistrate holding such inquiry cannot go beyond its scope and there is no scope for a Magistrate conducting such inquiry to give finding in his inquiry report as to who are the persons responsible for the death and the manner in which the injuries were caused. In fact, ascertainment of name of the assailants is within the ambit of investigation to be conducted by the police. This judicial inquiry report based on the statements recorded during enquiry cannot have any better position than an inquest report; therefore, it cannot be treated as substantive piece of evidence and can be used either to contradict or to corroborate the makers of the statements.
11. In fact, inquest report under section 176(1-A) is to be conducted in terms of the procedure of section 174 Cr.P.C. which mandates lodging of FIR before such inquest. Even any suicide under unnatural or suspicious circumstances is to be investigated by the police to investigate the actual reason of death for which FIR is norm. At the time of inception of inquest proceedings, usually it is not to be anticipated that inquest is going to lead to discovery of any incriminating evidence or foul play or involvement of someone, due to FIR is to be lodged in routine. As such, FIR is not barred in such cases and rather necessary to carry out investigation. A similar legal proportion has been laid down in 2017 SCC Online Ori 563, titled Sushil Kumar Nayak Vs. State of Odisha that "an inquiry held by a CR No. 8/2021 Sandeep Vs. State & Anr. 7/12 magistrate u/s 176 (1A) shall not be a bar for the police to investigate simultaneously". A similar proportion has laid down in P. Rajakumari v. Additional Director General of Police, 2014 SCC Online Mad 7106 that "in the absence of any first information report and investigation by the police, it is not possible to have an additional inquiry in terms of Section 176(1A) of Cr.P.C".
12. Further, every unnatural death is a cognizable offence and FIR is mandatory in every such case and this legal proposition is clear as laid down in Lalita Kumari Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1. In fact, FIR is mandatory to investigate any matter or to conduct an inquest by police or Judicial Inquiry and is on the similar footings of inquest conducted by police or SDM in terms of section 174 Cr.P.C.
13. Now comes to pleas of the revisionist. It is the main plea of revisionist that the custodial death of deceased was subjected to Judicial Inquiry in which he was not found guilty, due to he cannot be subjected to further investigation and it amounts to double jeopardy. However, this plea is not sustainable as the Judicial Inquiry contemplated to ascertain the "cause of death" and not to ascertain the guilt of anyone involved during the incident or abetment to suicide or played any foul play in this death. The FIR directed by Ld. MM vide impugned order was ought to be lodged by the concerned SHO itself being a mandatory requirement to conduct inquest in death case, which is per-se cognizable offence involving unnatural death of a young man, irrespective of his antecedents.
CR No. 8/2021 Sandeep Vs. State & Anr. 8/12
14. Ld. Counsel for the revisionist has further argued that revisionist has already faced a departmental enquiry for the same allegation due to no fresh investigation is required. Again, it has no substance. Though Ld. MM has given clean chit to everyone in Judicial Inquiry yet departmental enquiry was conducted by the police department without any instruction from any authority and despite granting clearance to all, but three police officials were found guilty of their misconduct and dereliction in their official duties and have also been punished, though revisionist has been exonerated. This fact itself suggests that much emphasized Judicial Inquiry report, which has given clean chit to all police officials posted with PS at the relevant time, failed to protect some of them who have been punished. In fact, norms of evidence and standard of proof in departmental inquiry and criminal trial are altogether different and a person exonerated in departmental enquiry may be convicted in criminal trial or vice versa. A similar law has been laid down in State (NCT of Delhi) v. Ajay Kumar Tyagi (2012) 9 SCC 685 that "exoneration in departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case"
15. So far revisionist is concerned, he was IO of the case in which deceased was arrested and his liability and responsibility was much more than the others who have been punished, whereas his exoneration may raise a finger of doubt on this departmental inquiry. The deceased was arrested by IO and was put into lock up without medical examination which was in itself a misconduct and explanation tendered to it that IO proceeded to attend some other CR No. 8/2021 Sandeep Vs. State & Anr. 9/12 call thereby entrusting the act of medical examination of accused to someone else, who was not part of investigation team, was lapse in itself, but it is not a dispute before this court due to it is not to be discussed much. However, clean chit to revisionist on the basis of a Judicial Inquiry report, which is not a substantive piece of evidence and merely an opinion on cause of death, cannot put a bar on criminal investigation to ascertain the involvement of actual culprit, if any. Even the Ld. MM has just directed to lodge an FIR and to fairly investigate the matter which does not amount to pointing out towards the guilt or involvement of the revisionist or anyone else. Accordingly, exoneration of revisionist of his liability in departmental enquiry is not a bar to this investigation.
16. Now come to other defense. The main contention of revisionist is that this FIR was related to the demand of bribe of Rs. 30,000/- allegedly made by the revisionist from Respondent No.2, due to it is a matter pertaining to the domain of P.C. Act and jurisdiction to entertain such matters lies with the Special Court constituted under P.C. Act and Ld. MM was not vested with jurisdiction to entertain this complaint and ought to have returned the same under section 201 Cr.P.C., but this submission again has no substance. Respondent No.2, who is complainant before the Ld. Trial Court, has not sought FIR pertaining to the alleged demand of bribe, but has sought FIR for investigation of the suspicious death of his son and both reasons are not similar. This demand of money has been cited just one of the reasons which might have caused the death of Deepak or the reason to compel him to commit suicide, but it cannot be said that Ld. MM CR No. 8/2021 Sandeep Vs. State & Anr. 10/12 has directed to investigate corruption charges by this FIR. The case titled Satish Chand Gupta Vs. State & Ors., WP (Crl) no. 464/13 based upon Anil Kumar Vs. M. K. Aiyappa 2013 X AD (SC) 386 relied upon by Ld. Counsel for revisionist, in which, it is held that sanction is a pre-condition for ordering investigation u/s 156 (3) of Cr. PC even at a pre-cognizance stage, has no application. This proposition is applicable only in corruption cases which is not the present one.
17. Perusal of the complaint under Section 200 Cr. PC as well as application u/s 156 (3) of Cr.P.C. pending before Ld. MM would show that FIR has been sought to be registered pertaining to the allegations regarding death of deceased Deepak and not for illegal demand of bribe. In fact, at any stench of imagination, it cannot be said that prior sanction is required to investigate an unnatural death in police custody and it was part of official duties. A similar law has been laid down in 1995 (33) DRJ 490 titled Kanshi Ram v. O.P. Chopra and Ors. "that torture to an accused by police or custom officer investigating the matter is not an act which can be said to be in discharge of official duty to seek prior sanction for prosecution". The above said proposition has been further reaffirmed in PP Unnikrishnan and Another v. Puttiyottil Alikutty And Another (2000) 8 SCC 131. As such, the plea taken by Ld. Counsel for revisionist has no substance.
18. Ld. Trial Court has directed to lodge FIR just to ascertain the facts and to solve the mystery surrounded by the suicide of CR No. 8/2021 Sandeep Vs. State & Anr. 11/12 deceased, for which, Ld. Trial Court was well competent and its order may not be faulted. In view of it, plea of revisionist is not sustainable.
19. Besides it, Ld. Counsel for Respondent no.2 has drawn the attention of the court towards some material facts. It is argued that deceased was confined to lock up under the constant gaze of entire police staff, but still he hanged himself with the help of a cloth and that too without noticing by any police official and reached to the roof of lock up by climbing through window to commit suicide and it cast a doubt on the police story. It is further pointed out that FSL scene of crime report has pointed out recovery of shawl and blade etc. besides ligature material and connection of all such things with the death of deceased would clear only by an independent police investigation. All such facts have proved that thorough investigation is required. I found no illegality or infirmity in the order of Ld. MM, accordingly, revision petition is hereby dismissed.
20. Copy of the order be sent to the Ld. Trial Court concerned along with TCR for necessary information and action. Copy also be sent to SHO and DCP concerned for an immediate compliance and be given to revisionist dasti.
Revision file be consigned to record room.
Announced in open court (Devender Kumar)
today on 18.03.2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
CR No. 8/2021 Sandeep Vs. State & Anr. 12/12