Gujarat High Court
Thapa Renuka Amarsinh Mohansinh vs Police Commissioner, Ahmedabad on 9 May, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/5528/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5528 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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THAPA RENUKA AMARBHAI
Versus
POLICE COMMISSIONER, AHMEDABAD & 3 other(s)
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Appearance:
MR RIDDHESH TRIVEDI(6581) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 5
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/05/2019
CAV JUDGMENT
Rule. Learned APP waives service of rule for the respondent-State.
1. This is a petition, seeking transfer of investigation of the FIR being I-C.R. No. 73/2017, registered with DCB Police Station, Ahmedabad, for the offence punishable under Sections 302 and 114 of the Indian Penal Code, 1860, so also to provide Page 1 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT protection to the petitioner and her family members.
2. It is the grievance on the part of the petitioner that, though, the incident occurred in November, 2014, no action has been taken against the delinquent police officers, till date.
3. The facts in the capsulized form, leading to the filing of the present petition, are as under:
On 08.11.2014, one Shri Virendrasinh and others from Khokhra Police Station visited the house of the petitioner. At that point of time, the brother of the petitioner, namely Shri Mahesh Motil Lal Rana, was sleeping as he had tooth ache. It was, therefore, explained to the police personnels by the petitioner that, since, his brother was unwell, he was taking rest. However, the police officers did not budge and made him wake-up and started questioning him. The brother of the petitioner, Vivek (since deceased, was wanted by the police in relation to an incident of rioting that took place in Maninagar area, as they apprehended that the deceased was involved in the same.
3.1 One Shri Virendrasinh Ajitsinh and PI from Khokhra had visited their house at 10:30 p.m., suspecting the involvement of the brother of the petitioner in the alleged rioting. After carrying out the search of the house of the petitioner, police took her father into custody so also her brothers, Page 2 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT namely Jayesh Moti Lal and Mahesh Moti Lal. The petitioner was informed that her brothers will be released, after completing inquiry about Vivek.
3.2 On 09.11.2014, the petitioner again visited Maninagar Police Station. However, she was not allowed to see her brothers. She also came to know that the police officer of Maninagar Police Station had visited the house of the co-accused, namely Manish, however, he fled from his house and the same had upset the police officers, and therefore, they arrested uncle of Manish. They also arrested four other persons residing in the neighbourhood.
According to the petitioner, police, then, had beaten all the six persons in front of their family members and then, they were taken to the Maninagar Police Station. Hence, the family members of the arrested persons also went to Maninagar Police Station and on reaching there, they noticed that all the persons were brutally beaten by the police.
3.3 Then, on the very same day, at about 06:30 p.m., petitioner received a phone call from Maninagar Police Station that one of the brothers of the present petitioner, namely Mahesh, who asked her to visit him because he had been brutally beaten. He had also informed her that if, her brother did not mark presence before the Maninagar Police Station, then, he shall be implicated in false case and he would remain behind the bars for the rest of his life. When, the petitioner inquired from one Shri Page 3 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT Mohanbhai, who is also one of the police officers at Maninagar Police Station, as to why her brother was so brutally beaten, he replied that unless the absconding brother of the present petitioner (Vivek) made himself available, none of the arrested persons would be released.
3.4 Later on, when the petitioner returned home at about 08:00 p.m., she found that there were about six police personnel inside her house and they were threatening her family members and were inquiring about the deceased. It is, further, her say that her brothers were wrongly implicated as is apparent from the newspapers report dated 11.11.2014.
3.5 On 14.11.2014, the brother of the petitioner, namely late Vivek Motilal Rana, one Sanjay Somabhai Rabari and one Krunal Gajendrabhai appeared before the Crime Branch, Ahmedabad City, whereupon, they came to be arrested in connection with the FIR being I-C.R. No. 216/2014, registered with Crime Branch Police Station under Sections 143, 147, 148, 149, 307, 302, 324 and 323 of the IPC so also under Sections 3 and 7 of the Prevention of Damage to the Public Property Act and Section 135 of the Gujarat Police Act.
3.6 Thereafter, the petitioner was called by the Maninagar Police Station and therefore, she directly went there from DCB Police Station. According to her, on reaching there, her brother Mahesh asked her as to Page 4 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT why the deceased had surrendered before the DCB Police Station, since, that had again upset the Maninagar Police. Then, at about 06:30 p.m., officer of the Crime Branch handed over the custody of the late brother of the present petitioner and of other two persons to Maninagar Police Station. When, the petitioner came to know about this, she went to Maninagar Police Station. However, ACP, Ms. Rima Munshi, did not permit her to enter the police Station. At that time, she heard the shouts of her brother. Then, between 10:30 p.m. to 11:00 p.m., she received a phone call from Maninagar Police Station, whereby, some officer had asked her to come with hot milk and turmeric. When, the petitioner reached there, she found that her late brother, namely Vivek, was unable to move and he was partly unconscious. She was, then, informed by her brother Mahesh that Vivek was beaten by PSI, Shri Gadhvi, ACP, Ms. Rima Munshi, and PSI, Shri Chaudhary, and other police officers. The condition of her brother was so critical that he was unable to drink milk.
3.7 Then, at about 06:00 a.m., she again got a call from Maninagar Police Station that the condition of her brother Vivek was very critical and he was taken to the L.G. Hospital, Maninagar, for further treatment, where, on 16.11.2014, he was declared dead. Pursuant thereto, the petitioner and her family members wrote to various authorities and only after the intervention of the National Human Rights Commission, that the complaint came to be lodged Page 5 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT before the learned Magistrate and on conclusion of the preliminary inquiry, the learned Magistrate directed the S.O.G., Crime Branch, Ahmedabad to lodge the aforesaid FIR against the delinquent police officers.
3.8 According to the petitioner, she and her family members have, after once the FIR was lodged, started receiving threats from the police officers, who were involved in custodial death of her brother, and for that also, written complaints were made to various departments. She also preferred an application under the Right to Information Act, 2005. According to petitioner, there were a number of injuries found, in the P.M. Note, on the body of the deceased, which consequently led to the death of the brother of the petitioner.
4. Affidavit-in-reply is filed, for and on behalf of respondent No.2, by one Shri B.C. Solanki, who was discharging duties as Asst. Commissioner of Police, Special Operations Group, Crime Branch, Ahmedabad, stating therein that the investigation has been done impartially and in non-partisan manner by the Sr. Officer of the department of the rank of ACP. It is, further, stated that after considering the material on record and the scientific evidence, the charge-sheet has been filed against the accused persons for the offence punishable under Sections 330 and 114 of the IPC and that too, after obtaining the necessary permission from the State.
Page 6 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT4.1 It is, further, stated that the FIR being I- C.R. No. 216/2014, came to be filed against the accused persons on 08.11.2014, which included the late brother of the petitioner, namely Vivek. He surrendered before the Crime Branch on 14.11.2014, at about 15:15 p.m. and at about 21:30, the Crime Branch handed over his custody to Maninagar Police authority. On 15.11.2014, the deceased had a stroke of Epilepsy, and therefore, he was removed to L.G. Hospital, Maninagar. His family members were intimated about the same. Then, on 16.11.2014, at about 01:14 Hrs., doctors declared him dead, and thereafter, his body was sent for post mortem to Civil Hospital and a panel of doctors carried out the same.
4.2 From the report of post mortem, it was revealed that there were as many as 36 injuries found on the body of the deceased. However, the cause of death was not clear in the PM note, since, the doctors were awaiting histopathological report of the deceased. Thereafter, the final report was prepared by the panel of doctors on 14.02.2015, which indicated that the cause of death was due to cardio- respiratory failure as a result of pathology found in both lungs. It was also mentioned, therein, that the injuries found on the body of the deceased were caused by hard and blunt object.
4.3 On 16.11.2014, therefore, Accidental Death Page 7 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT Case NO. 39/2014 came to be registered, as per Section 174 of the Code and the investigation was handed over to the ACP, 'K' Division, who submitted his report on 02.03.2015 to the Office of DCP, Zone- 6, Ahmedabad, and it was approved on 03.05.2017, where, it was concluded that the death of the deceased was not natural.
4.4 During the course of investigation, however, the conclusion was arrived at that the offence was not punishable under Sections 302 and 114 of the IPC, but, under Section 330 and 114 of the IPC. When the specific queries were raised with regard to the cause of the death of the deceased, the panel of doctors opined that the injuries found on the body of the deceased were not sufficient in ordinary course of nature to cause death. The investigation was handed over to the ACP, who has filed his affidavit, stating therein that the details of the investigation reveals that the case would fall under Section 330 and not under Section 302 of the IPC. Therefore, on completion of the investigation, permission was sought for, as required under Section 197 of the Code, for filing the charge-sheet and the same came to be filed on 29.01.2019. It is, further, urged in said affidavit that it is on account of the injuries sustained by the deceased that the provisions of Section 330 has been incorporated in the charge- sheet.
5. This Court has heard, at length, learned Page 8 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT Advocate, Mr. Riddhesh Trivedi, with learned Advocate Mr. Somnath Vatsa, for the petitioner and learned APP, Mr. Soni, for the respondent-State, at length.
5.1 It is fervently urged before this Court by learned Advocates, Mr. Vatsa, appearing with Mr. Trivedi, for the petitioners that this is nothing, but, to cover-up the mis-deeds of the police that the investigation has resulted into filing of the charge- sheet for the offence under Sections 330 and 114 of the IPC. It is simply a mockery of justice, according to them. If, the deceased was a criminal or allegedly involved in a serious offence, nobody has a business to take law in his own hands, as has been done in the instant case. This custodial violence goes to the root of the matter, where, as many as 36 injuries were found on the body of the deceased. The report of the Magistrate is as clear as broad day light and yet, by raising certain queries from the panel doctors, it has been chosen by the IO to even ignore the injuries shown by panel of doctors. Therefore, it is urged that Section 302 of the IPC shall have to be added and the investigation shall have to be transferred to the agency, which is wholly impartial. A request is also made to grant protection to the petitioner and her family members so also to the witnesses.
6. Learned APP, while defending the agency, has urged that it is the scientific evidence that led to the filing of the charge-sheet under Section 330 of Page 9 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT the IPC. According to him, there were five doctors in the panel, who have opined and that has led the IO to file charge-sheet under Sections 330 and 114 of the IPC. There is nothing for this Court to interfere or to direct further investigation or transfer of investigation.
7. On hearing both the sides and on close perusal of the material on record, this Court finds this to be a fit case for transfer of investigation for the reasons to follow hereinafter. In the instant case, this Court notices that on the basis of the Medical Report, the only section, which has been invoked is Section 330 of the IPC. The request made by the petitioner, therefore, deserves to be considered closely.
7.1 This Court notices that the PM note clearly indicated that there are 36 ante mortem injuries found on the person of the deceased and though, the panel of five doctors had opined that those injuries were not sufficient in general course of nature to cause death. However, the fact cannot be ignored that all these answers were given in response to the specific queries raised by the IO. Therefore, these answers were generated by raising those specific queries, and hence, the designed nature of presentation cannot be overlooked by the Court.
7.2 This Court also notices that there is absence of any substantive medical document, so far Page 10 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT as the epilepsy being the root cause of this is concerned. There are statements of witnesses prima facie indicating epilepsy and his having had seizure in the lock-up, resulting into his ending the life eventually. What culls out, in fact, from the material is that Vivek had epilepsy during his childhood from age of 3 years to 7 years and he was cured completely and had no seizures nor was he required to undergo any treatment.
7.3 The statements of various witnesses also prima facie indicate the kind of inhuman treatment meted out to the deceased. These statements prima facie reflect the cruel behavior on the part of the police officers concerned. While in police custody, intolerable stress and violence are alleged to have resulted into the death due to custodial violence and these may also contribute to the state of epilepsy. The abusive words are the worst than weapons and that may have caused immense damage to the mental equilibrium of any person. Those with the history of epilepsy also can be affected in a major way, since, this being a brain disorder.
7.4 As per Medicine Net "'Epilepsy' is a brain disorder in which the clusters of nerve cells or neurons in the brain, sometimes, act abnormally. Neurons normally generate, electro chemical impulses that act on other neurons, glands and muscles to produce human thoughts, feelings and actions. In epilepsy, as per the medical Books, normal pattern of Page 11 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT neuronal activity becomes disturbed, causing strange sensations, emotions and behaviors or sometimes convulsions, muscle spasms and loss of consciousness." However, even provoked or unprovoked seizure of epilepsy is incapable of resulting into the death of a person, as sought to be made out.
7.5 There are many angles, which can be examined by the IO. What presently, prima facie, found is an attempt to cover up the actions of the police by those, who are supposed to be the protectors of rights of people and guardians of the law and order situation. It is not in dispute that all the three brothers of the petitioner were taken into custody to procure the presence of the deceased, who was a wanted criminal in a matter of murder and rioting. He was a young boy in the company of other criminals and he may have been the worst kind of a criminal, but, that would not give any authority any right to do away with such a person, without following the procedure established under the law. From the time immemorial, this tug of war is going on between the police authority and the society, which is interested in up-keeping the rule of law. Custodial violence is always a matter of concern for all civilized societies and all forms of custodial violence would invite wrath of people of all sections of society. National Human Rights Commission also laid down the guidelines for any violence in police custody and in the jail.
Page 12 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT7.6 Here, apt it would be to refer to the decision of the Apex Court in 'RE-INHUMAN CONDITIONS IN 1382 PRISONS', (2017) 10 SCC 658, which pertains to custodial violence. The relevant observations read thus:
"20. The NHRC sent a communication dated 3rd January, 2001 to all the Home Secretaries regarding the revised instructions to be followed while sending post-mortem reports in cases of custodial death. In order to streamline the procedure, the NHRC issued certain instructions and among them were the following:
1. The post-mortem report along with the videograph and the magisterial enquiry report must be sent to the NHRC within two months of the incident.
2. The post-mortem report should be sent in the proforma attached to the letter dated 27th March, 1997.
3. The magisterial enquiry into a custodial death should be completed as soon as possible but within a period of two months.
4. In some cases of custodial death, the viscera are sent for examination after the post-mortem examination and a report is called for. Since this may take some time, it was instructed that the post-mortem report and other documents should be sent to the NHRC without waiting for the viscera report, which could be sent later on.
21. On 21st December, 2001 the NHRC addressed a communication to all Chief Page 13 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT Ministers and Administrators of all the States and Union Territories giving modified instructions regarding videography of post-mortem examinations in respect of deaths in judicial custody. It was clarified that the requirement of videographing of post-mortem examinations in respect of deaths in jail would be applicable only where the preliminary inquest by the Magistrate had raised suspicion of foul play or where any complaint alleging foul play was made to the concerned authorities or there was any other reason to suspect foul play.
22. It is clear from the above that the role of the NHRC is extremely important whenever there is an unnatural death in a prison. Although the NHRC has issued detailed instructions from time to time, it does appear however that these instructions are not being taken seriously but are being followed more in the breach.
Nelson Mandela Rules
23. The learned Amicus submitted that the General Assembly of the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015. These Rules provide useful internationally accepted guidelines for implementation by prison administrations across the country. He drew our particular attention to Rules 58 to 63 which deal with prisoner contact with the outside world. It was submitted that merely because a person is in prison, it does not mean that he or she should be cut off from the outside world. In fact, the prisoner should be allowed to communicate with his family and friends at regular intervals and should also be permitted to communicate and consult with a legal adviser of his or her choice. This Page 14 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT by itself could have a soothing effect on the prisoner. He submitted that prisoners should be informed of important items of news through newspapers, periodicals or special institutional publications so that contact with the outside world is maintained. This, according to the learned Amicus, would substantially reduce the feeling of isolation that a prisoner has and would have an impact on his or her mental stability thereby reducing the possibility of any harmful activity by the prisoner.
24.On the specific issue of custodial deaths, the learned Amicus drew our attention to Rule 71 of the Nelson Mandela Rules to submit that any custodial death, disappearance or serious injury shall be reported without delay to a judicial or other competent authority that is independent of the prison administration. The learned Amicus also pointed out that the Mandela Rules require the prison administration to treat the body of a deceased prisoner with respect and dignity.
XXX XXX XXX
58. We are of the view that on the facts and in the circumstances before us, the suggestions put forward by the learned Amicus and the learned counsel appearing for the National Forum deserve acceptance and, therefore, we issue the following directions:
58.1 The Secretary General of this Court will transmit a copy of this decision to the Registrar General of every High Court within one week with a request to the Registrar General to place it before the Chief Justice of the High Court. We request the Chief Justice of the High Page 15 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT Court to register a suo motu public interest petition with a view to identifying the next of kin of the prisoners who have admittedly died an unnatural death as revealed by the NCRB during the period between 2012 and 2015 and even thereafter, and award suitable compensation, unless adequate compensation has already been awarded.
58.2 The Union of India through the Ministry of Home Affairs will ensure circulation within one month and in any event by 31st October, 2017 of (i) the Model Prison Manual, (ii) the monograph prepared by the NHRC entitled "Suicide in Prison - prevention strategy and implication from human rights and legal points of view", (iii) the communications sent by the NHRC referred to above, (iv) the compendium of advisories issued by the Ministry of Home Affairs to the State Governments, (v) the Nelson Mandela Rules and (vi) the Guidelines on Investigating Deaths in Custody issued by the International Committee of the Red Cross to the Director General or Inspector General of Police (as the case may be) in charge of prisons in every State and Union Territory. All efforts should be made, as suggested by the NHRC and others, to reduce and possibly eliminate unnatural deaths in prisons and to document each and every death in prisons - both natural and unnatural.
58.3 The Union of India through the Ministry of Home Affairs will direct the NCRB to explain and clarify the distinction between unnatural and natural deaths in prisons as indicated on the website of the NCRB and in its Annual Reports and also explain the sub-
categorization 'others' within the category of unnatural deaths. The NCRB should also be required to sub- categorize natural deaths. The sub-categorization and Page 16 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT clarification should be complied with by 31st October, 2017.
58.4 The State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties and responsibilities as also the rights and duties of prisoners. A copy of this order be sent by the Registry of this Court to the Member-Secretary of each SLSA to follow-up and ensure compliance.
58.5. The necessity of having counselors and support persons in prisons cannot be over-emphasized. Their services can be utilized to counsel and advice prisoners who might be facing some crisis situation or might have some violent or suicidal tendencies. The State Governments are directed to appoint counselors and support persons for counselling prisoners, particularly first-time offenders. In this regard, the services of recognized NGOs can be taken and encouraged.
58.6. While visits to prison by the family of a prisoner should be encouraged, it would be worthwhile to consider extending the time or frequency of meetings and also explore the possibility of using phones and video conferencing for communications not only between a prisoner and family members of that prisoner, but also between a prisoner and the lawyer, whether appointed through the State Legal Services Authority or otherwise.
58.7 The State Legal Services Authorities (SLSAs) should urgently conduct a study on Page 17 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT the lines conducted by the Bihar State Legal Services Authority in Bihar and the Commonwealth Human Rights Initiative in Rajasthan in respect of the overall conditions in prisons in the State and the facilities available. The study should also include a performance audit of the prisons, as has been done by the CAG. The SLSAs should also assess the effect and impact of various schemes framed by NALSA relating to prisoners. We request the Chief Justice of every High Court, in the capacity of Patron-in-Chief of the State Legal Services Authority, to take up this initiative and, if necessary, set up a Committee headed preferably by the Executive Chairperson of the State Legal Services Authority to implement the directions given above.
58.8 Providing medical assistance and facilities to inmates in prisons needs no reaffirmation. The right to health is undoubtedly a human right and all State Governments should concentrate on making this a reality for all, including prisoners. The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet minimum standards of care is an indication that the human right to health is not given adequate importance in prisons and that may also be one of the causes of unnatural deaths in prisons. The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary.
58.9 The constitution of a Board of Visitors which includes non-official visitors is of considerable importance so that eminent members of society can participate in initiating reforms in prisons and in the rehabilitation of Page 18 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT prisoners. Merely changing the nomenclature of prisons to 'Correction Homes' will not resolve the problem. Some proactive steps are required to be taken by eminent members of society who should be included in the Board of Visitors. The State Governments are directed to constitute an appropriate Board of Visitors in terms of Chapter XXIX of the Model Prison Manual indicating their duties and responsibilities. This exercise should be completed by 30th November, 2017.
58.10 The suggestion given by the learned Amicus of encouraging the establishment of 'open jails' or 'open prisons' is certainly worth considering. It was brought to our notice that the experiment in Shimla (Himachal Pradesh) and the semi- open prison in Delhi are extremely successful and need to be carefully studied. Perhaps there might be equally successful experiments carried out in other States as well and, if so, they require to be documented, studied and emulated.
58.11 The Ministry of Women & Child Development of the Government of India which is concerned with the implementation of Juvenile Justice (Care and Protection of Children) Act, 2015 is directed to discuss with the concerned officers of the State Governments and formulate procedures for tabulating the number of children (if any) who suffer an unnatural death in child care institutions where they are kept in custody either because they are in conflict with law or because they need care and protection. Necessary steps should be taken in this regard by 31st December, 2017."
Page 19 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT7.7 The Apex Court also in case of 'S. NAMBI NARAYANAN VS. SIBY MATHEWS AND OTHERS ETC.', LAWS (SC) 2018 9 25, expressed its anguish over the custodial violence by holding and observing as under:
31. As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually, after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if one is allowed to say, on some kind of fancy or notion.
The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.
Page 20 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT32. There has been some argument that there has been no complaint with regard to custodial torture. When such an argument is advanced, the concept of torture is viewed from a narrow perspective. What really matters is what has been stated in D.K. Basu v. State of W.B., (1997) 1 SCC 416, The Court in the said case, while dealing with the aspect of torture, held:-
"10. 'Torture' has not been defined in the 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 with 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 no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing 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
11. 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 in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. 'Custodial torture' is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. 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.Page 21 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT
12. In all custodial crimes what 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."
33. From the aforesaid, it is quite vivid that emphasis has been laid on mental agony when a person is confined within the four walls of a police station or lock up. There may not be infliction of physical pain but definitely there is mental torment. In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, and others5, the Court ruled:-
"8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first -- the criminal or society, the law violator or the law abider...."
34. In Kiran Bedi v. Committee of Inquiry and another, (1989) 1 SCC 494,, this Court reproduced an observation from the decision in D.F. Marion v. Davis', 217 Ala. 16 (Ala. 1927) Page 22 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT "25. ... 'The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.'"
35. Reputation of an individual is an insegregable facet of his right to life with dignity. In a different context, a two Judge Bench of this Court in Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 has observed:-
"55. ... reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity."
36. From the aforesaid analysis, it can be stated with certitude that the fundamental right of the appellant under Article 21 has been gravely affected. In this context, we may refer with profit how this Court had condemned the excessive use of force by the police. In Delhi Judicial Service Association v. State of Gujarat and others, (1991) 4 SCC 406, it said:-
"39. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citizens' life and property.Page 23 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT
The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender.
The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police ... [and it] must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated."
37. If the obtaining factual matrix is adjudged on the aforesaid principles and parameters, there can be no scintilla of doubt that the appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. We are absolutely conscious that a civil suit has been filed for grant of compensation. That will not debar the constitutional court to grant compensation taking recourse to public law. The Court Page 24 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant. In Sube Singh v. State of Haryana and others', (2006) 3 SCC 178, the three-Judge Bench, after referring to the earlier decisions, has opined:-
"38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure."
8. It is a matter on record that judicial inquiry is conducted by the judicial officer, who has, in detail, recorded the evidence and held prima facie that it is nothing but custodial death. The Court also did not approve in its findings the defence of epilepsy nor of self-inflicted injuries nor of any other defences. Although, this inquiry was to set the machinery into motion, drawing from the findings also, further investigation would be inevitable.
9. Resultantly, this petition is ALLOWED. Let, further investigation in I-C.R. No. 73/2017, registered with DCB Police Station, Ahmedabad, be Page 25 of 26 Downloaded on : Mon Jul 01 02:44:51 IST 2019 R/SCR.A/5528/2018 CAV JUDGMENT carried out by the CID CRIMES, AHMEDABAD, which shall examine all the angles and will submit the further report to the trial Court concerned at the earliest, but, in any case not later than the period of EIGHT WEEKS from the date of receipt of a copy of this order. Till then, there shall be STAY of the proceedings of taking cognizance by the trial Court concerned. Rule is made absolute, accordingly. Direct service is permitted.
(SONIA GOKANI, J) UMESH/-
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