Himachal Pradesh High Court
Amit Sood vs Of on 21 September, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1157 of 2005.
.
Judgment reserved on : 31.08.2016.
Date of decision: September,21st , 2016.
Amit Sood ...Petitioner
Versus
of
State of H.P. & Ors ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?1Yes For the Petitioner: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
For the Respondents: Ms. Meenakshi Sharma, Addl.
A.G., with Mr.J.S. Guleria, Asstt.
A.G., for respondents No. 1 to 4.
Mr. B.C. Negi, Senior Advocate, with Mr. Vijay Verma, Advocate, for respondent No.5.
ASI Tilak Raj, I/O, Police Station, Dharamshala and Mr.Vakil Singh, Reader, SDM Office, Dharmashala present alongwith records.
Tarlok Singh Chauhan Judge.
"Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights". (Kishore Singh Ravinder Dev etc. versus State of Rajasthan AIR 1981 SC 625).
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 2
2. The petitioner claims himself to be a victim of custodial torture and has filed this writ petition claiming therein the following .
reliefs:-
"i) Direct that a case be registered against respondent No.5, for having illegally arrested, detained and physically tortured the petitioner in custody; in the most inhuman manner.
of
ii) Award adequate compensation to the petitioner for the custodial torture of the petitioner.
iii) Quash the inquiry conducted by the SDM and the rt consequent reinstatement of respondent No.5.
iv) Direct that the investigation in the case be conducted by an independent high-ranking official of police/ the crime branch.
v) Direct that a copy of the medical report of the petitioner be given to him.
vi) Direct that a copy of the inquiry report conducted by the SDM be given to him.
vii) The respondent No.5 may be directed to be transferred from P.S. Dharamshala to any other place so that he may not influence with course of the investigation.
viii) Proceedings for contempt of Court be initiated against respondent No.5 for having willfully and knowingly violated the directions of the Hon'ble Supreme Court in the case of "D.K.Basu versus State of West Bengal".
ix) Issue any other order, writ or direction that this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the present case."
3. It is averred that the petitioner is a Commerce Graduate and belongs to a respectable family and his father is a very senior and well-known Chartered Accountant. At the relevant time, the petitioner was running a Banquet Hall and Restaurant ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 3 by the name of 'Kashish'. There was only one room attached to the Banquet Hall which was primarily meant for the parties .
booking the hall for changing their clothes or keeping their belongings, but the same was never offered for rental.
4. On 24.08.2005 while petitioner was away, then at about 4.40 p.m., 4-5 ladies accompanied by two or three men of came to the restaurant and after being served water, ordered cold drinks and later placed order for chilly chicken. The waiter called rt the cook, who was on rest, for preparation of the food, however, in the meantime, (within 5 to 7 minutes) of the men and ladies having entered the place, a police party led by SHO, Dharamshala, R.P.Jaswal, accompanied by video camera operator of the local cable channel reached the restaurant and made enquiries from the men and ladies and the restaurant staff.
The long and short of the story is that an FIR No.216/2005 (for short 'FIR') came to be registered against the petitioner under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act (for short the 'Act') on the allegations that there was a sex racket being carried out in these premises.
5. The petitioner claimed to have arrived at the Banquet Hall at about 6.10/6.20 p.m. in response to a telephonic call made by his father at about 5.30 p.m. It is thereafter claimed that while in the lock up, the petitioner at about 11.00 p.m. was asked to sign blank papers and on refusing to do so, he was abused and mercilessly beaten up by respondent No.5 SHO. The beating was ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 4 so severe and relentless that the same caused grievous injury in the ear of the petitioner. On these allegations, the petitioner has .
filed the instant petition for the reliefs as already set out hereinabove.
6. The State of Himachal Pradesh through Secretary (Home), District Magistrate-cum-Deputy Commissioner, Kangra at of Dharamshala and Sub Divisional Magistrate, Kangra, who have been arrayed as respondents No.1, 2 and 4, respectively, have rt filed their joint reply wherein it is admitted that the petitioner is running the restaurant and letting the same for marriage functions, however, it is denied that the rooms of the hotel are not rented out to anyone. It has been averred that the local police of Police Station, Dharamshala, had searched the hotel and FIR had been registered. Regarding arrest etc., it has been stated that in the subsequent inquiry conducted by respondent No.4, it has been established that the hotel of the petitioner had been raided by the SHO (respondent No.5) alongwith police officials pursuant to which aforesaid FIR came to be registered. It is admitted that local cable operators had videographed the entire incident and was also with the raiding party. As regards the allegations of beating, it has been averred that during inquiry contradictory statements have been made by the petitioner. On 24.08.2005, the petitioner told respondent No.3 that he was beaten up by respondent No.5 and other police officials, whereas, in his later statement dated ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 5 31.08.2005, the petitioner clearly denied beating having been given by other police officials except respondent No.5.
.
7. Respondent No.3 has filed its separate reply wherein it has been averred that the petitioner was taken in custody from the spot in the presence of his father at 9.40 p.m. on 24.08.2005 from the spot and the said fact finds mention in the Zimini No.1 dated of 24.08.2005. The petitioner was lodged in the police station lock up at 10.30 p.m. and an entry to this effect was made in the rt station diary vide DD No.32 dated 24.08.2005. It is averred that the police had associated their videographer which speaks volume of the fairness on the part of the police. The respondent admitted that the medical report indicated two bodily injuries (simple in nature) sustained by the petitioner within the past six hours when he was examined at 12.14 a.m. on 25.08.2005. Respondent No.3 then placed respondent No.5 under suspension and ordered Additional S.P.,Kangra to conduct departmental inquiry in the incident. However, the next day the ENT Specialist reported grievous injury to the right ear of the petitioner. Thus, as per the Punjab Police Rule 16.38 as applicable to the Himachal Pradesh before proceeding further departmentally, the matter was referred to D.M., Kangra. The SHO i.e. respondent No.5 was suspended by respondent No.3 only to ensure that he did not influence any inquiry into the incident by misusing his position, status or posting.
The suspension was ordered to ensure free and impartial inquiry.
::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 68. Respondent No.5 has filed his separate reply raising therein various preliminary objections by alleging that the petition .
is nothing more than a counter-blast to the FIR registered against the petitioner. It is averred that though the petitioner had got himself medically examined, but he has not chosen to place on record such medical examination report and, therefore, adverse of inference ought to be drawn against him. Even otherwise, the petitioner at best, had suffered injury which was purely temporary rt and had not got the audiometry test conducted so as to establish any permanent loss of hearing. It is also averred that the present petition depicts no enforceable cause of action and concocted ipse-dixit of the petitioner cannot withstand the presumption of truth attached to the official records as prepared during the course of the duty.
9. On merits, it is averred that as per the investigation conducted in the FIR it had come to light that the premises of the petitioner where the raid was conducted was being used for carrying on a prostitution racket and the same was being carried out with the active support of the petitioner. The raid had been conducted pursuant to a complaint made by one Sarabjeet, who had informed the police that he had met one Veena Devi, who had agreed to arrange 4-5 girls. The amount to be paid to these girls had been fixed and Sarabjeet was required to pay the advance amount. The girls were provided at the premises of the petitioner at about 7 in the evening on 24.08.2005, as according to Veena ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 7 Devi, these premises were very safe. According to her, the writ petitioner was related to some police official, hence no one dared .
to raid the premises of the writ petitioner and even on earlier occasions, she had used these premises in collusion with the writ petitioner.
10. After preparing decoy customers, the raid was carried of out which was witnessed by independent witnesses like Pradhan, Gram Panchayat, Dari and other witnesses and the incident was rt also video filmed. The raid was started at about 7.00 p.m. and concluded at about 10.15 p.m. It is specifically stated that when the raid was being conducted, the writ petitioner had run away from the spot and was chased by the police and later over-
powered. In this process, there was a major scuffle as the writ petitioner very strongly tried to resist being captured and in this process may have sustained some injury. It is specifically denied that the petitioner was asked to sign blank papers and it is further categorically denied that the petitioner was abused and mercilessly beaten up by the replying respondent and, therefore, there was no question of the petitioner having sustained any ENT related injury.
I have heard the learned counsel for the parties and gone through the records of the case.
11. Before dealing with the contentions on merits, it needs to be observed that no civilized law postulates custodial cruelty, an inhuman trait that springs out of a perverse desire to cause ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 8 suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the .
one who is overpowered or a collective wrath of hypocritic thinking. It is one of the worst crime in the civilized society.
Torture in custody flouts the basic rights of the citizen and is affront to him and his dignity. Custodial torture is a collective of assault on human dignity and nothing can be more dehumanizing as the conduct of the police in practicing torture of any kind on a rt person in custody.
12. At the outset, it may be noticed that the criminal case filed against the petitioner pursuant to FIR No.216/05 dated 24.08.2005 has been dismissed and all the accused therein including the petitioner have been acquitted of the offences for which they had been charged.
13. It is also not in dispute that the petitioner while in police custody was got medically examined by the police i.e. on 25.08.2005 at about 12.20 a.m. at Dr. Rajendra Prasad Government Medical College and Hospital, Dharamshala, the said report is annexed as Annexure R3/A with the supplementary affidavit filed by Superintendent of Police pursuant to directions passed by this Court on 22.11.2006. In addition to this, respondent No.3 has also placed on record the letter dated 27.08.2005 whereby on the request of respondent No.5, respondent No.3 had asked for constitution of a Medical Board and the said report is annexed as Annexure R3/G. The necessity ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 9 of Medical Board arose because respondent No.5 had made an allegation that he did not find the opinion of the ENT Expert to be .
fair as the Expert was personally known to the petitioner, who was levelling false allegations of having been beaten up in police custody only because he had been booked for a serious offence.
14. Notably, there was a perforation of the size of of approximately 2 x 2 mm on the center of the tympanic membrane which was noticed in the right ear of the petitioner and the Medical rt Board had clearly found the injury to be grievous and had been caused within duration of 2-5 days earlier.
15. Now the moot question arises as to how the petitioner came to sustain such injury. Was it self-inflicted? Was it caused during the process when petitioner tried to flee as per the version of respondent No.5 or was it on account of the beating given by respondent No.5?
16. Insofar as the first probability is concerned, the same is otherwise ruled out as it is not even the case of the respondent that the petitioner had self-inflicted the injury.
17. Therefore, the question now only hinges around to two other probabilities. As already observed, the specific stand of respondent No.5 in his reply to the writ petition is that the petitioner may have sustained injury while he was fleeing from the spot and had been over-powered by the crowd and the police and the said allegation is reproduced in verbatim and reads thus:-
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 10"6. That the contents of paras 6 to 8 are categorically denied. It is submitted that the raid which started at about 7.00 on the premises of the petitioner concluded at about 10.15. At this .
juncture, it would be appropriate to mention that when the raid was conducted the writ petitioner had run away from the spot. The Writ petitioner had been chased by the police. On seeing this the public which had collected there had overpowered the writ petitioner. In the process there was a major scuffle as the writ petitioner had tried to very seriously resist being captured.
of Therefore in the process the Writ petitioner may have sustained some injury....."
18. rt The version put forth in the FIR against the petitioner with regard to an attempt being made by the petitioner to flee reads thus:-
"At this time I, Inspr./SHO alongwith raiding party reach out side Hotel Kashish Civil Station and Video Film maker Pardeep Dogra has also reached at this time, he is also associated with the raiding party and the party raids the Hotel after surrounding it from all sides. When the party entered the main gate the person standing at the counter/reception on seeing the party ran towards the stairs out side the restaurant leading to the rooms upstairs. In his hurry he fell on the stairs and I Inspr./SHO with the help of raiding party over powered him....."
19. There appears to be again yet another version in the challan/final report which does not even mention anything about the petitioner trying to flee from the spot or his being apprehended by the mob or by anybody else and rather suggests that the petitioner has been arrested from the spot itself. The relevant portion of the challan reads thus:-
".....Thereafter during the raid at Kashish Hotel and Restaurant/Banquet Hall Dharamshala in the presence of witnesses, Amit Sood; who was present near the counter;::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 11
produced five currency notes of denomination of Rs.500/- before the police; which were given to him for prostitution. The numbers of the currency notes are (1) 3AH 599963 (2) 3CK .
153499 (3) 4CT 749149 (4) 7AA 42096 (5) 9AL 976672 which bear the signatures of Inspector/S.H.O. and have been seen by the witnesses. The aforesaid currency notes amounting to Rs.2500/- was packed in a cloth and was sealed by Stamp "K"
4 times and the sample of stamp was taken on a separate cloth and were taken into custody of the police. The stamp after use of was handed over to witness Savita Karki. The copy of memo was supplied to witnesses and accused free of cost. The memo signed by Amit Sood and the witnesses by putting there rt signatures and thereafter Sh. Pradeep Dogra produced a video cassette which was recorded on 24.8.2005 in Kashish Rastaurant and Banquet Hall Dharamshala before me (Inspector/SHO) which was sealed in a cloth packet by stamping with Stamp "J" three times and the sample of the stamp was taken on separate cloth and stamp was handed over to witness Balbir Singh after use. Cloth Packet was taken into custody by way of recovery memo as evidence and the memo was signed by witness Balbir Singh and Pradeep Singh by putting their signatures. The spot was examined and spot map was also prepared. The statements of witnesses namely S/Sh.
Sarvjeet Singh, Nirpail Singh, Niraj Kumar, Baldev Singh, Surjeet Singh, Deep Chand Ward Panch, Smt. Savita Karki, Balbir Singh, Pradeep Dogra were recorded as per their version and were penned down. Veena Devi, Meena Devi, Kaushalya Devi, Usha Devi, Suman Devi and Amit Sood were arrested for the offence under Section 3, 4, 5 of Immoral Traffic Act, 1956 and who have been released on Bail Bonds and Surety Bonds by the orders of Hon'ble Court. After investigation, the offences under Section 3, 4, 5 of the Immoral Traffic Act, 1956 in the Challan against the accused mentioned above is proved. The challan was prepared and is submitted before the Hon'ble Court. The accuseds be prosecuted."
20. When the petitioner was made to stand trial, the Ward Panch of Gram Panchayat, Dari, PW-2 Kuldeep Chand has clearly ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 12 stated that the petitioner was not even present at the spot during the raid.
.
21. It is evidently clear from the aforesaid that it is not even the case of respondent No.5 or the other respondents that the petitioner had already sustained injury at the time of his arrest or else he would have straightaway been taken to the hospital.
of Even as per the respondents, the raid was conducted at 7.00 p.m. and concluded at 10.15 p.m. and the petitioner and the rt independent witnesses came to the police station at 10.30 p.m. The petitioner admittedly was examined after his arrest at 12.20 a.m. on 25.08.2005 and it was found that the petitioner had suffered perforation of the right ear. This was thereafter confirmed by the Medical Board so constituted on the asking of respondent No.5.
22. It is vehemently argued by learned counsel for respondent No.5 that in absence of there being any bleeding and injury to the external ear of the petitioner, the injury, if any, could only be an old one, out of which much capital cannot be made by the petitioner to claim that he was given beatings by respondent No.5 which resulted in the aforesaid injury. He has referred to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, Chapter 7 which deals with the torture and as regards ear torture, it reads thus:-
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 13"(viii) Ear Torture Ear torture includes beating both the ears with the palms. This is known as 'telefona', which causes rupture of the tympanic .
membrane causing pain, bleeding and hearing loss."
23. He would thereafter rely upon page 230 of the book wherein it has been mentioned that in case of beatings with the of palms on both ears simultaneously ('el telefone') the physical findings would be that of ruptured or scarred tympanic rt membranes. Injuries to the external ear which would be detected in the post mortem detection of torture. He would further canvass that in case blow is given over the ear, the same may produce a rupture of the tympanum leading to temporary or permanent deafness and would rely on the following abstract found at page 813 of the book which reads thus:-
" Ears A blow over the ear may produce a rupture of the tympanum leading to temporary or permanent deafness. Such injuries should be examined as soon as possible to differentiate whether the damage to the tympanum if due to disease or injury.
A police constable complained that he was slapped over his left ear by a station master. On examination of his ear on the next day, the tympanic membrane was found ruptured and the surrounding surface was congested."
If a blow over the external ear is very severe, it may also injure the labyrinth. During a quarrel, the ears may be bitten off or cut off, and their lobes may be torn by pulling out the earrings either with the intention of causing hurt or committing theft. The injuries are grievous, if they produce permanent disfiguration.
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 1424. The aforesaid contention cannot simply be accepted for the reason that in case it had been an old injury, the same .
would have been so mentioned in the Medico-Legal-Certificate.
That apart, it has been specifically opined by the Medical Board in para-1 of its report that "X-ray of the mastoid region (RT & LT) does not show any sclerotic changes ruling out old perforation".
of Once, there is overwhelming evidence available on the record by way of opinion rendered by a team of doctors of the Medical rt Board that too based on the physical examination of the petitioner, it is not safe to rely upon any text which only refers to things in abstract.
25. Thus, on the basis of the aforesaid discussion, I am prima facie of the considered opinion that the injury sustained by the petitioner was at the time when he was in custody of respondent No.5 as earlier to this he was hale and hearty and, therefore, the onus was upon respondent No.5 to prove that the petitioner while in custody could not have and had not sustained injuries.
26. Dr. Martin Luther King had observed that "injustice anywhere is a threat to justice everywhere" and these golden words were thereafter reiterated by the Hon'ble Supreme Court in Kishore Singh Ravinder Dev's case (supra).
27. Justice R.K.Abichandani in his Article relating to custodial violence while referring to 'Custody' had observed as under:-
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 15"Custody The very idea of a human being in custody save for protection and nurturing is an anathema to human existence.
.
The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty - an inhuman trait that springs out of a perverse desire to cause suffering when there of is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritic thinking."
28. rt In the same Article, he has referred to 'The Universal and Constitutional Concern' which reads thus:-
"The Universal Concern (1) The Universal Declaration of Human Rights 1948, adopted and proclaimed by the General Assembly Resolution 217A(III) of 10th December, 1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Article 1 proclaimed that all human beings are born free and equal, in dignity and rights. In Article 3 it proclaimed that everyone has the right to life, liberty and security of person, and in Article 5 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The presumption of innocence of a person charged with a penal offence until proved guilty as contained in Article 11(a) is meant to insulate him against any high-handed treatment by the authorities dealing with him in the matter.
(2) Article 7 of the International Covenant on civil and Political Rights, 1966 adopted by the General Assembly resolution dated 16th December, 1966 covenanted that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Under Article 10 of the said Covenant all persons deprived of their liberty shall be treated with humanity and with ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 16 respect for the inherent dignity of the human person and the accused persons shall , save in exceptional circumstances, be segregated from convicted persons and shall be subject to .
separate treatment appropriate to their status as unconvicted persons. The minimum guarantees to which everyone charged with a criminal offence, is entitled in full equality covenanted in Art.
14(3), inter-alia, provide that no shall be compelled to testify against himself or to confess guilt, which obviously will rule out use of force of any kind on a person accused of any crime.
of (3) The American Convention of Human Rights 1969 which came into force in July, 1978, declares under Article 4(1) rt that every person has the right to have his life respected and this right shall be protected by law. Under Article 5, the right of every person to have his physical, mental, and moral integrity respected is recognized and it is covenanted between the States who are parties to this convention that no one shall be subject to torture or to cruel, inhuman, or degrading punishment or treatment and that all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. Right to human treatment recognized by Article 5 cannot be suspended even in time of war, public danger, or other emergency situation, as declared in Article 27 of this Convention.
VI. The Constitutional Concern Respect for human dignity is thus not a matter for any deep study in axiology for an estimate of comparative values in ethical, social or an aesthetic problem but a matter of acknowledging a simple truth already recognized by our national document when its opening chant exudes the cultural nobility of a fraternity that assures the dignity of the individual. The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are meant to protect human dignity and shun barbaric approaches. This is why no person accused of any offence shall ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 17 be compelled to be a witness against himself [Art.20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice [Art. 22(1), there is .
prohibition of traffic in human beings and forced labour (Art. 23), and, above all, that mother of all rights, the right to protection of life and personal liberty (Art. 21). The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in of Bandhua Mukti Morcha case. [see (1984)3 SCC 161 & (1991) 4 SCC 417]."
29. rt In Gyanesh Rai and another versus State of UP and Ors 2015 (6) All LJ 499 the learned Division Bench of the Allahabad High Court has made extremely lucid enunciation of law on the subject and I can do no better than to extract some of the observations made therein which read as follow:-
"8. Mahatma Gandhi in one of his quotes has said as follows:
"I object to violence because when it appears to do good, the good is only temporary, the evil it does is permanent."
9. By resorting to custodial torture, for the time being, police with a view to secure evidence or confession may achieve their goal but in long run, police will have to substantiate and will have to face the scrutiny of Court, as to whether evidence secured or confession made was voluntary or same has been sheer outcome of custodial violence inflicted upon. Evidences and Confessions that come through the route of custodial violence, in long run, do no good and prosecution has to pay heavy price for the same, on such facts being substantiated, otherwise police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid.
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 1810. Time and again custodial torture has been at the radar of the Apex Court and Apex Court, at all point of time, has viewed custodial torture with all seriousness. Apex Court in the case of .
Raghbir Singh vs. State of Haryana 1980 (3) SCC 70 proceeded to mention that State at the highest administrative and political levels would organize special strategies to prevent and punish brutality by police methodology, otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate. Relevant extract of said of judgement is as follows:
rt "We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scarce in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy when violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case, Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.
The State, at the highest administrative and political levels, we hope, will organise special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate.
We conclude with the disconcerting note sounded by Abraham Lincoln:
'If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 19 some of the people all the time, but you cannot fool all the people all the time.' .
These observations have become necessary to impress upon' the State police echelons the urgency of stamping out the vice of 'third degree' from the investigative armoury of the police."
11. Apex Court in the case of State of Uttar Pradesh vs. Ram of Sagar Yadav and others 1985 (1) SCC 552 has proceeded to took a note of the fact that at the point of time when a person is in custody and he is subjected to any atrocity, then, at the said rt point of time, police officials alone and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody. Relevant extract of said judgement is as follows:
"Police Officers alone, and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody.
Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth. The result is that persons, on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are."
12. Apex Court, in the case of Nilabati Behera @ Lalit Behera vs. State of Orissa and others, 1993 (2) SCC 746 proceeded to take view that even convicts, prisoners and undertrials have right under Article 21 and once an incumbent is taken into custody and there are injuries on his body, then State will have to explain, as to how he sustained the injuries, and compensation can be awarded under public law remedy.
13. Apex Court in the case of D.K. Basu vs. State of West Bengal 1997 (1) SCC 416, has dealt with the issue of custodial violence, and has clearly ruled, interrogation through essential must be on scientific principles, third degree methods are ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 20 impermissible, balanced approach should be there so that criminals don't go scot free. Various guidelines have been issued and same are holding the field, even as on date, in .
addition to constitutional and statutory safeguards. Relevant extract of said judgment is as follows:
"The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the of custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, rt including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless.
The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
14. "Torture" has not been defined in Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous wit the darker side of human civilisation.
"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is not way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 21 paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."
.
-Adriana P. Bartow No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture'- all aiming at total banning of it in all forms, but of inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, "Custodial torture" is a naked violation of rt human dignity and degradation with destroys, to a very large extent, the individual personality.
15. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward- flag of humanity must on each such occasion fly half-mast.
16. In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up.
Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.
"Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1984, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication."::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 22
17. Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty expect according to procedure .
established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life of personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest of and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the rt right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal ilberty against and unjustified assault by the State, In tune with the constitutional guarantee a number statutory provisions also seek to project personal liberty, dignity and basic human rights of the citizens. Chapter V. of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 23 officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence.
.
Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause (2) of Article 22 of the Constitution of India. There are some other provisions also like Section 53, 54 and 167 which are aimed at affording procedural safeguards to of a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold and enquiry into the cause of death.
rt
18. However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system.
19. The community rightly feels perturbed. Society's cry for justice becomes louder.
20. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 24 Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed .
contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions of touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be rt denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.
21. Instances have come to out notice were the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrest person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometime resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood.
22. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co-
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 25prisoners who are highly reluctant to appear as prosecution witness due to fear of retaliation by the superior officers of the police. It is often seen that when a complaint is made against .
torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station records which they do not find difficult to manipulate.
23. Consequently, prosecution against the delinquent officers of generally results in acquittal. State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [ 1995 (3) Scale, 343 ] is an apt case illustrative of the observations made by us above. In that rt case, Nathu Bnjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10.30 p.m. after interrogation 13.10.1986 itself vide entry EX. P/22A in the Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station, Rampura, at the instance of Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank riggling with pain in his chest and that as a soon as respondent No. 6 reached near him, the said person died. The further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1- Shyamsunder Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation under Section 174 Cr.P.C. He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their presence prepared a panchnama EX. P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known.
24. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of a an offence but it must be remembered that the ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 26 law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with that view to solve the crime. End cannot justify the means.
.
25. The interrogation and investigation into a crime should be in true sense purpose full to make the investigation effective. By torturing a person and using their degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.
of
34. Apex Court in the case of Shakila Abdul Gafar Khan vs. Vasant Raghunath Dhoble and another 2003 (7) SCC 749 has rt proceeded to make a mention that who are at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, reigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' rights. Relevant extract of said judgement is as follows:
"If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights.
Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 27 live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for .
short the 'Code') deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful of and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the rt Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies's observation which have become classic are in following immortal words:
"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659)."
The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 28 commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh's case (supra) more than two decades .
back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v.
State of U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (AIR of 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. rtState of U.P. and Ors. (1995 (3) SCC 600), Inder Singh v. State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC
262) and by now celebrated decision in Shri D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.
Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter."
35. Apex Court in the case of Sube Singh vs. State of Haryana and others 2006 (3) SCC 178 has taken note of custodial violence to be torture and third degree methods used by police during interrogation and has discussed in detail the reasons behind such practice and has also given preventive measures as to how such violence can be tackled. Relevant extract of said judgement is as follows:
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 29"Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all .
persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted of to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting rt human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process.
Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes.
The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 30
Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the .
remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurances. Following steps, if taken, may prove to be effective preventive measures:
of
a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police rt personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.
b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.
c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.
d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.
e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.
f) An independent investigating agency (preferably the respective Human Rights Commissions or ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 31 CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and .
speedy action followed by prosecution, wherever necessary.
The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building of measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-
rt collared crime, deteriorating law and order situation etc."
36. Apex Court in the case of Prithipal Singh and others vs. State of Punjab and another 2012 (1) SCC 10 has considered that the State has to protect the victim of torture and State cannot be permitted to negate such a right. Relevant extract of said judgement is as follows:
"Police atrocities in India had alwa ys been a subject matter of controversy and debate. In view of the provisions of Article 21 of the Constitution, any form of torture or cruel, inhuman or degrading treatment is inhibited. Torture is not permissible whether it occurs during investigation, interrogation or otherwise. The wrong-doer is accountable and the State is responsible if a person in custody of the police is deprived of his life except in accordance with the procedure established by law.
However, when the matter comes to the court, it has to balance the protection of fundamental rights of an individual and duties of the police. It cannot be gainsaid that freedom of an individual must yield to the security of the State. Latin maxim salus populi est suprema lex - the safety of the people is supreme law; and salus reipublicae suprema lex - safety of the State is supreme law, 14 co-exist. However, the doctrine of the welfare of an individual must yield to that of the community.::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 32
The right to life has rightly been characterised as "`supreme' and `basic'; it includes both so-called negative and positive obligations for the State". The .
negative obligation means the overall prohibition on arbitrary deprivation of life. In this context, positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to of protect life and investigate all suspicious deaths.
The State must protect victims of torture, ill-treatment as rt well as the human rights defender fighting for the interest of the victims, giving the issue serious consideration for the reason that victims of torture suffer enormous consequences psychologically. The problems of acute stress as well as a post-traumatic stress disorder and many other psychological consequences must be understood in correct perspective. Therefore, the State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force.
In addition to the protection provided under the Constitution, the Protection of Human Rights Act, 1993, also provide for protection of all rights to every individual. It inhibits illegal detention. Torture and custodial death have always been condemned by the courts in this country. In its 113th report, the Law Commission of India recommended the amendment to the Indian Evidence Act, 1872 (hereinafter called "Evidence Act"), to provide that in case of custodial injuries, if there is evidence, the court may presume that injury was caused by the police having the custody of that person during that period. Onus to prove contrary is on the police authorities. Law requires for adoption of a realistic approach rather than narrow technical approach in cases of custodial crimes."::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 33
38. Apex Court in the case of People's Union for Civil Liberties and another vs. State of Maharashtra and others 2014 (10) SCC 635 has clearly mentioned that Article 21 of Constitution of .
India guarantees "right to live with human dignity" and any violation of human rights is viewed seriously. Relevant extract of said judgement is as follows:
"Article 21 of the Constitution of India guarantees "right to live with human dignity". Any violation of human rights of is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the rtConstitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.
In some of the countries when a police firearms officer is involved in a shooting, there are strict guidelines and procedures in place to ensure that what has happened is thoroughly investigated. In India, unfortunately, such structured guidelines and procedures are not in place where police is involved in shooting and death of the subject occurs in such shooting. We are of the opinion that it is the constitutional duty of this Court to put in place certain guidelines adherence to which would help in bringing to justice the perpetrators of the crime who take law in their own hands.
Article 21 of the Constitution provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". This Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.
In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 34 dignity and basic human rights. In spite of Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the cases of death in .
police encounters continue to occur. This Court has been confronted with encounter cases from time to time. In Chaitanya Kalbagh3, this Court was concerned with a writ petition filed under Article 32 of the Constitution wherein the impartial investigation was sought for the alleged killing of 299 persons in the police encounters.
of The Court observed that in the facts and circumstances presented before it, there was an imperative need of rtensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens.
We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force. In a society governed by rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done."
30. The issue of custodial violence was the subject-matter of a recent decision of the Hon'ble Supreme Court in Dr. Rini Johar and another versus State of M.P. and others AIR 2016 SC 2679 wherein the Hon'ble Supreme Court recapitulated the earlier law laid down by it in the following manner:-
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 35"18. In D.K. Basu v. State of W.B.(1997) 1 SCC 416, after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and State of M.P. .
v. Shyamsunder Trivedi (1995) 4 SCC 262 the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read as follows:-
"(1) The police personnel carrying out the arrest and of handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags rt with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 36 telegraphically within a period of 8 to 12 hours after the arrest.
.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall of also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the rt arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 37 arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a .
conspicuous notice board."
31. Late Mr.Justice V.R.Krishna Iyer in 'Random Reflections' had said:-
"Policing, like justicing, has therefore to be at the service of the of people commanding the credibility of the community at large without fear or favour, affection or ill-will. Independence and accountability with commitment to the Rule of law, are as much rt the non-negotiable qualities of the invigilating, investigating police force of the 'robed brethern' on the bench. If the investigative process fails, if the police presence to guard Law and Order is not functionally successful, the adjudicatory apparatus collapses and our adversarial system of justice becomes dysfunctional. The safety of society, sans police integrity, accountability, transparency and efficiency, suffers illusion and unreality."
32. Adverting to the facts of the case, not only is the conduct of respondent No.5 not above board, but even the then SDM, who conducted the inquiry has not at all been fair to the record and has rather acted as an expert over the medical evidence simply in order to exonerate respondent No.5. This is clearly evident from the report submitted by the SDM wherein he observed as under:-
"From the above stated findings, I am of the opinion that the any perforation in the ear, as opined by the doctor can not be conclusively decided to be caused by a grievous hurt until and unless the condition laid out in section 320 of the IPC are met with. The complainant Sh.Amit Sood has not suffered a permanent impairment of right ear as given as third condition nor has he suffered destruction of permanent impairment of ear.::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 38
The dislocation which has been opined by Dr.Manish Saroch has not been observed by the Medical Board. As far as the hurt which endangers life is concerned, it is such a wide term .
that if not interpreted properly will not leave any hurt out of the scope of grievous hurt. For the reasons above since there is some difference of opinion between Dr. Manish Saroch ENT Specialist and Medical Board with regard to the handle of melleus, tuning fork test for assessment of hearing loss and as it has been advised by the medical board to approach the of higher institution for audiometry so as to ascertain the exact loss, I am of the opinion that it can not be convincingly established that the nature of injury suffered is grievous in rt nature in the absence of unimpeachable medical testimony which can only be arrived after conducting audiometry test on the complainant. Hence the point No-1 is decided in negative."
33. The only apparent reason given by the SDM for disbelieving the version of the petitioner that he had suffered injury on account of beatings given by respondent No.5 reads thus:-
"------The Rapat No-35 dated 24-08-2005 which has been written by SP Kangra clearly reveals that the complainant told SP Kangra that he has been beaten up by Inspector Jaswal and some other police official. But where as in his statement dated 31-08-2005 the complainant has categorically denied any beating by other police officials. He has specifically mentioned that SHO Jaswal has beaten him up not the other police official where as in the police station before SP Kangra (Rapat No-35) he has alleged to have been beaten up by SHO Jaswal and other police officials also which contradicts his statements before the inquiry officer. This contradiction in the statement of the complainant before the SP Kangra & before the inquiry officer, throws a ring of suspicion about the complaint of the complainant and no irresistible conclusion can be drawn regarding the guilt of Inspector RP Jaswal.
-----Moreover the complainant has deposed that Inspector RP Jaswal has beaten him up on the ear wi th slaps, kicks and ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 39 leather belt but there is no trace of external injury on the ear or associated areas as per the medical opinion of ENT expert and the Medical Board (Annexure A40 question no.2) and .
(Annexure A41 question no.5). The complainant alleges that the injury in the ear has been caused by beating in the ear by Inspector Jaswal with slaps, kicks & leather belt but the experts opine no external injury on the right ear. There is remotest possibility that if a person has been beaten up with slaps, kicks and leather belt on the ear, he will have no injury mark on the of ear and in the absence of such medical testimony, no confidence can be inspired and the guilt of Inspector Jaswal can not be conclusively established. Under such circumstance rt it can not be proved that the injury which caused perforation in the right ear of complainant Amit Sood has been caused by beating by Inspector Jaswal in the PS."
34. The aforesaid reasonings are clearly two far-fetched and contrary to the records. The SDM was not an expert in the medical field and as already observed above, once the petitioner was hale and hearty and there was no record to prove that he had an old wound perforation of the ear, then the presumption was that the petitioner had suffered injury while in custody between 10.30 p.m. on 24.08.2005 to 12.20 a.m. on 25.08.2005 and heavy onus lay upon respondent No.5 to rebut this presumption which unfortunately he has failed to rebut. Rather, respondent No.5 continued to give different versions regarding the injuries sustained by the petitioner.
35. The inquiry report submitted by the SDM, to say the least, is clearly one sided and is an apparent attempt to shield respondent No. 5 with a biased mind. It would have been more appropriate if the concerned SDM had atleast called the petitioner ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 40 and his father and thereafter made sincere efforts to find the truth, rather than straightaway come to the conclusion that the petitioner .
had come up with false allegations and that there was no act of torture, harassment from the side of respondent No.5. To say the least, the SDM, who conducted the inquiry has not acted with high probity and expected candour and has failed to meet the of requisites of fairness while conducting inquiry.
36. What amazes this Court is the fact that it is the specific rt case of respondent No.5 that the whole incident relating to the arrest of the petitioner had been videographed. However, strangely enough, the said record of videography which could have been the best evidence to support the plea of respondent No.5 has been conveniently withheld from this Court constraining this Court to draw an adverse inference against the respondents, particularly, respondent No.5.
37. However, even having prima facie concluded that the petitioner had suffered injury while he was in custody of respondent No.5, such findings can only be said tentative for want of conclusive proof. A firm finding of fact in such like cases by a constitutional Court can be returned only in exceptional cases and even while these observations are founded upon material on record, nonetheless they remain only tentative for want of conclusive proof. No doubt, in the case in hand, the allegations are serious, even the circumstances somewhat seem to support them, even the consequences are quite apparent, yet the material ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 41 on record is not within the decree of conclusive proof on the basis of which firm findings of fact can be returned. These, at best, may .
give rise to a strong suspicion, yet cannot be held to be conclusive. The truth must surface in the interest of those, who are accusing and/or are being accused, therefore, to reach a definite conclusion, the investigation and disciplinary proceedings of are inevitable whereafter alone the guilt, if any, of respondent No.5 can be established. If such a course is not followed, then in rt teeth of such firm findings regarding the guilt of respondent No.5 are returned, then no subordinate Court or even the disciplinary authority would dare to go beyond these findings.
38. Identical issue came up for consideration before a learned Division Bench of this Court in State of Himachal Pradesh and another versus Sakshi Sharma etc. and others 2014 (Supp) Shim. LC 563 wherein it was held as under:-
"11. It has to be remembered that while exercising the powers of a Constitutional Court a firm finding of fact in such like case can be returned only in exceptional cases. The observations made by the learned Single Judge may though be founded upon the material on record, nonetheless they remain only tentative for want of conclusive proof and at best can be termed to be prima facie views only. No doubt, in the case in hand, the allegations are serious, even the circumstances somewhat seem to support them, even the consequences are quite apparent, yet the material on record is not within the degree of conclusive proof on the basis of which firm findings of fact could have been returned. These at best may have given rise to a strong suspicion, but yet could not have been held to be conclusive. The truth must surface in the interest of those who are accusing and/or are being accused, therefore, to reach ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 42 a definite conclusion, the investigation and disciplinary proceedings are inevitable whereafter alone the guilt, if any, of the police officials can be established.
.
12.This Court otherwise cannot be oblivious to the fact that in teeth of such firm findings as recorded by the learned Single Judge, no subordinate court or even the disciplinary authority would dare to go beyond these findings. More so when the order passed by the learned Single Judge does not even state of that the findings as recorded are only tentative or prima-facie. Obviously, therefore, the findings so recorded in our considered view amounts to pre-judging the issues because the matter is rt pending investigation/disciplinary proceedings and it is possible that on its conclusion the Court /disciplinary authority may have sufficient material with it on the basis of which whatever has been said in the judgment could be sustained. However, it is equally possible that the material which the Court/ disciplinary authority may collect may not be enough to substantiate those allegations. When both the possibilities are there, the learned Single Judge should not have returned firm findings at this pre-
mature stage. "
39. Nonetheless, it has to be remembered that whenever human dignity is wounded, civilization takes a step backward. It is a collective assault on human dignity which cannot be tolerated and, in such circumstances, I have no option but to direct respondents No.1 to 3 to register a criminal case against respondent No.5 and, at the same time, direct departmental proceedings against respondent No.5. Needless to observe that since respondent No.5 is admittedly an Inspector rank police official, these proceedings/inquiry shall be conducted by a high ranking Officer of the Police, not below the rank of Superintendent of Police.
::: Downloaded on - 15/04/2017 21:16:29 :::HCHP 4340. Coming to the question of compensation, the same can only be awarded if the guilt of respondent No.5 is established .
in the aforesaid criminal and departmental proceedings.
41. In view of the aforesaid discussion, the petition is partly allowed and respondents No.1 to 3 are directed to register a criminal case as also initiate disciplinary proceedings against of respondent No.5 to be conducted by an Officer not below the rank of Superintendent of Police and conclude the same as rt expeditiously as possible and in no event later than 31st March, 2017. Respondents No.1 to 3 are directed to initiate criminal proceedings against respondent No.5 by lodging FIR and thereafter take the same to its logical end within the aforesaid period i.e. 31.03.2017.
42. The petition is disposed of in the aforesaid terms, so also the pending applications, if any.
(Tarlok Singh Chauhan), Judge.
September, 21st , 2016.
(krt) ::: Downloaded on - 15/04/2017 21:16:29 :::HCHP