Allahabad High Court
Parva Kumar Singh vs Union Of India Thru. Superintendent Of ... on 23 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9782 of 2022 Applicant :- Parva Kumar Singh Opposite Party :- Union Of India Thru. Superintendent Of Police Cbi Scb Lko. Counsel for Applicant :- Vijay Pratap Singh,Sulkhan Singh Counsel for Opposite Party :- Anurag Kumar Singh Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Vijay Bahadur Singh, Senior Advocate assisted by Vijay Pratap Singh and Sri Sulkhan Singh, Advocates, the learned counsel for the applicant and Sri Anurag Kumar Singh, the learned counsel for the C.B.I.
2. The instant application has been filed seeking release of for the applicant on bail in Case Crime no. 38 of 2021, R.C. No. 0532021S0010/SCB/LKO, under Section 34 read with Sections 302, 330, 331 and 218 read with Section 120-B I.P.C., registered at Police Station CBI/SCB/LKO, District Lucknow.
3. Initially, an F.I.R. bearing Case Crime No. 33 of 2021 was lodged under Section 356 I.P.C. on 01.02.2021 regarding a robbery committed by three motorcycles borne miscreants on a highway. After about ten days since lodging of the aforesaid F.I.R., the involvement of one Krishna Kumar Yadav @ Pujari is claimed to have come to light. Krishna Yadav @ Pujari died in police custody and his brother Ajay Kumar Yadav lodged the F.I.R. bearing Case Crime No. 38 of 2021 on 12.02.2021 against (i) S.O.G. Team Jaunpur, (ii) S.O. Baksa Ajay Kumar Singh and (iii) other police persons of Thana Baksa stating that at about 3:00 P.M. on 11.02.2021, a S.O.G. Team and S.O. Baksa Ajay Kumar Singh came to his house along with some police force and they took away the informant's brother Krishna Kumar Yadav @ Pujari to the police station; that his brother was not involved in any criminal case; that the S.O.G. and S.O. Baksa detained him in the police station with intention to entangle him in some false case, that at about 8:00 P.M. S.O. Baksa and about 10 other police persons went to the informants house, they broke open the lock of a box and took away Rs. 60,000/- and some goods and they hurled dirty abuses on the ladies present in the house; that the S.O.G. in charge and S.O. Baksa along with 10 to 12 other police persons went to the informant's home at about 12:30 in the night along with the informant's brother and his brother was unable to stand and he was crying and asking his mother to save him and he was stating that the police persons would kill him. In the morning the informant got an information that his brother had died in police custody.
4. The post-mortem examination report of the body of the deceased mentions contusions on both buttocks and a contusion in scapular region and the doctor, who had conducted the post-mortem examination, opined that the injuries were not sufficient for causing death and he further opined that the death was caused due to shock and syncope as a result of the ante-mortem myocardial infarction.
5. It has also been stated in the affidavit that at 05:39 p.m. on 11.02.2021 the informant had sent a Whats app message to the Superintendent of Police, Jaunpur stating that his brother had been taken away by persons of Baksa Thana and he apprehended that his brother might be entangled in some false case.
6. The applicant was an inspector in the Special Operations Group.
7. Subsequently, the CBI took up the case and lodged a First Information Report on 17.09.2021 at 06:15 pm as RC0532021S0010, under Sections 302, 394, 452, 504 IPC, P.S. S.C.B. Lucknow, District Lucknow against S.O.G. Team, Ajai Kumar Singh S.O. Baksa along with the other police personnel of Police Station Baksa, District Jaunpur.
8. The C.B.I. completed the investigation and has submitted a charge sheet on 22.02.2022 under Section 34 read with Sections 302, 330, 331, 218 read with Section 120-B IPC in the Court of Special Judicial Magistrate, C.B.I. Lucknow against 19 police officials, including the applicant, who was an Inspector working in the Special Operations Group (S.O.G.) and was in-charge of the S.O.G. team.
9. On 10.12.2021 the applicant gave an application to the Investigating Officer of C.B.I. stating that the deceased had been taken in custody by the Station House Officer and that the applicant was not present there and he denied his involvement in arrest and beating of the deceased and he also denied his signatures on the memo of recovery. The applicant further stated as a Non-Bailable warrant had been issued against him, he was not appearing before the C.B.I.
10. On 27.07.2022, the applicant gave an application in the Court of Special Judge, C.B.I. demanding copies of the charge sheet, F.I.R. and the statements recorded under Section 164 Cr.P.C.
11. A copy of the statement of the informant recorded by the Investigating Officer has been annexed with the affidavit that wherein he has stated that on 11.02.2021 at about 3:30 - 4:00 p.m., one Sahul had informed him on phone that some police persons had taken away his brother Krishna Kumar Yadav @ Pujari and the learned counsel for the applicant submitted that it indicates that the informant was not an eye witness of his brother being taken away by the police/S.O.G.
12. Prem Pratap Yadav @ Sahul, who had given information to the informant that his brother had been taken away, stated that a blue colored police vehicle had come wherein four police persons and another person who had his face covered, were sitting, two police persons got down and went to Krishna Kumar Yadav @ Pujari and his friend Saurabh came near Krishna Dairy on a motorcycle, both the police persons caught hold of Krishna Kumar Yadav @ Pujari and took him away in the vehicle.
13. The Statement of one Kansh Raj Yadav has also been recorded. The said witness is the owner of Krishna Diary and he also stated that Krishna was taken away from his shop by two police persons.
14. On the strength of the aforesaid material, Sri Vijay Bahadur Singh, Senior Advocate, the learned counsel for the applicant has submitted that the deceased had been taken away by police persons and not by the applicant or any other member of the S.O.G. He has further submitted that S.O.G. (Special Operations Group) has been created as a specialized group and its job is to collect information regarding special offences and to provide the same to the police and it is the job of the police to act on the information, arrest the accused persons, carry out interrogation and investigation and to look after the persons who are in custody of the police. Sri Singh, has submitted that the applicant was not an officer posted in the police station and, therefore, neither he was authorized to interrogate the deceased while he was in the custody of the police nor could he have inflicted any injuries on the deceased, while he was in police custody.
15. Sri Singh has also submitted that one of the co-accused persons Jitendra Singh has already been granted bail by means of an order dated 15.02.2023 passed by this Court in Criminal Misc. Bail Application No. 29494 of 2022.
16. Sri Anurag Kumar Singh, the learned counsel for the C.B.I. has submitted that the bail application of one of the co-accused person Ramkrit Yadav, who was a police personnel working at Surveillance Cell Jaunpur, has been rejected by means of an order dated 17.08.2022 passed by a coordinate bench of this Court at Allahabad in Criminal Misc. Bail Application No. 10162 of 2022. In the aforesaid order dated 17.08.2022, this Court has observed as follows:-
"19. Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Times and again the judicial verdicts of the Apex Court and other Courts have shown their concern and anguish in such matters.
18. In the celebrated case of D.K. Basu Vs. State of West Bengal : (1997) 1 SCC 416 the Apex Court while expressing its anguish in cases of custodial deaths has observed as follows:-
"22. 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 require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the 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 touch the spinal cord 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 denied to convicts, 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.
23. In Neelabati Bahera v. State of Orissa, (1993) 2 SCC 746 (to which Anand, J. was a party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It was observed: (SCC p. 767, para 31) "It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law."
24. Instances have come to our notice where the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrested 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 sometimes 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. 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-prisoners who are highly reluctant to appear as prosecution witnesses 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 in charge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 4 SCC 262 is an apt case illustrative of the observations made by us above. ........."
19. Further in the case of Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and another: (2003) 7 SCC 749 the Apex Court has again shown its anguish in the matters of custodial violence, torture and abuse of police powers. It has been observed as follows:-
"If you once forfeit the confidence of our 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 some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This Court in Raghbir Singh v. State of Haryana (1980 (3) SCC 70), took note of these immortal observations (SCC p. 72, para 4) while deprecating custodial torture by the police.
2. Custodial violence, torture and abuse of police power are not 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 1948 which marked the emergence of a 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 of punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
3. 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 people's 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.
4. 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 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 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 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' 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 lawbreaker, it breeds contempt for law, it invites every man to become a law into himself. (In Olmstead v. United States, 277 US 438, US at p. 485, quoted in Mapp v. Ohio, 367 US 643, US at p. 659)
5. 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 commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh case (1980 (3) SCC 70) 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 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State 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 D. K. Basu v. State of West Bengal (1997 (1) SCC 416) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.
6. 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.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lockup because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under - trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happen will be a sad day, for anyone to reckon with."
17. In the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22, the Hon'ble Supreme Court has held that: -
"5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India: 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab: (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor: AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson: AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." (Emphasis supplied)
18. So far as the question of parity is concerned, Jitendra Singh, was the driver of the police vehicle and there was no allegation that he was involved in beating the deceased and, therefore, the case set up against the applicant is not at par with the case set up against Jitendra Singh who has been granted bail.
19. The learned counsel for the C.B.I. has filed a counter affidavit opposing the bail application wherein it has been stated that the investigation has revealed that the victim was picked up by the police officials of Police Station Baksa and thereafter, he was interrogated by the S.O.G. team headed by the applicant. The deceased was brutally beaten up during interrogation and he had suffered numerous grievous injuries. The investigation further revealed that the members of the S.O.G. headed by the applicant had visited the house of the victim in the night of 11.02.2021 at about 8:20 P.M. and they claimed to have made certain recoveries. The deceased finally succumbed to the injuries inflicted by the police officials, including the S.O.G. team. The applicant, who was the officer in-charge of the S.O.G. team, was actively associated in interrogation and beating of the deceased.
20. It has further been stated in the counter affidavit that opinion of the Joint Director, State Medico Legal Cell Uttar Pradesh was obtained regarding the cause of death of the deceased. After examining the video recording of the post-mortem examination of the dead body of the deceased, he opined that although in autopsy, the video of the a dried heart with empty chambers was observed, the autopsy surgeon had noted it full. He opined that the cause of death due to myocardial infarction was excluded. He further stated that the cause of death was shock which was not due to myocardial infarction, it can be precipitated by vasovegal inhibition or anti mortem injuries present on the victim's body, especially the big ones, which were not checked in post mortem examination.
21. Thereafter, an opinion was sought from a medical board of the Department of Forensic Medicines, All Indian Institute of Medical Sciences, which opined that there were multiple injuries present over the dead body in addition to those mentioned in the post mortem report. All injuries present over the dead body were blunt force injuries caused by blunt objects like rod, baton or lathi. No features of new or old myocardial infarction were seen over the myocardial externally. The medical board concluded that the body of the deceased had multiple blunt force injuries and in such type of injuries, capillaries and other blood vessels get ruptured leading to internal bleeding in the underlying muscular layers and tissues causing excessive and fatal internal blood loss from the circulatory system, which then leads to circulatory collapse and shock. The Medical Board was of the opinion that the cause of the death was 'Shock due to cumulative effects of multiple blunt force injuries sustained by the body. All injuries are anti mortem in nature and fresh in duration. The injuries were only collectively sufficient to cause death in the ordinary course of nature.'
22. The transcript of a telephonic conversation between the applicant and co-accused Ajay Kumar, the S.H.O, Police Station Baksa has also been annexed with the counter affidavit which indicates that the applicant was taking pride in having brutally beaten up the deceased during interrogation and the co-accused Ajay Kumar stated about himself that he was a kind person and he could not beat any person and without having not been beaten by the applicant, the person would not have disclosed the information. The applicant had advised the S.H.O. to give some pain killers whereupon the co-accused Ajay Kumar stated that he would send the injured to a doctor and get some injections administered to him.
23. From the aforesaid conversations, prima facie it appears that the applicant was involved in brutal beating of the deceased during interrogation in the police station and from the expert opinion given by the medical board of A.I.I.M.S it appears that the injuries caused to the deceased were sufficient to cause his death.
24. So far as the submission of the learned counsel for the applicant that the applicant being incharge of the S.O.G. team was not entitled to arrest the accused and to make interrogation from him, suffice it to say that S.O.G. is not an entity separate and distinct from the U.P. Police. It is a group of officers of U.P. Police only and there is no material from which it can be inferred that the applicant could not have had access to the deceased while he was in Police Custody.
25. Sri Vijay Bahadur Singh, the learned counsel for the applicant has next submitted that the act of the applicant would at the must amount to culpable homicide and it would fall within Exception 3 appended to Section 300 of the I.P.C., which provides that -"culpable homicide is not murder if the offender being a public servants or aiding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death and doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill will towards the person whose death is caused.
26. What Prima facie appears at this stage is that the deceased was brutally beaten up in custody and such an act cannot be considered to be an act which even the applicant could a have believed to be lawful and necessary for the due discharge of his duty as a public servant. Be that as it may, without making any observations which may affect the merits of the case, even if the offence falls within the definition of culpable homicide not amounting to murder, it will be punishable under Section 304 I.P.C. which provides that-
"Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.."
27. Without making any observations which may affects the merits of the case, this Court is of a considered opinion that the aforesaid facts dis entitled the applicant for discretion of this Court by enlarging him on bail.
28. Accordingly, the bail application stands rejected.
(Subhash Vidyarthi,J.) Order Date :- 23.3.2023 Preeti.