Punjab-Haryana High Court
Naurata Ram vs State Of Haryana And Ors. on 9 January, 1995
Equivalent citations: 1995CRILJ1568
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This is an unfortunate case where the petitioner has approached this Court for the third time with a prayer that the respondents be directed to register a case relating to the death of his son Rajinder Kumar, in police custody.
2. The basic question that falls for determination before us in the present case is whether the police has any discretion of authority to conduct an enquiry to find out if informant is reliable to genuine or otherwise and that the information is 'reliable or credible, before registering a. case, specially in the circumstances where the information discloses a cognizable offence.
3. The undisputed facts are that one Shri Rajinder Kumar, hereinafter referred to as the deceased, son of the petitioner was arrested by the police on 6-10-1991 in a case under Section 292 of the Indian Penal Code registered under F.I.R. 215 dated 6-10-1991. Constable Inder Singh No. 1021 of Police Station, Mullana had arrested the deceased. On the same day at about 12.25 P.M. said Rajinder Kumar was declared dead by the doctor of Primary Health Centre, Mullana. D.D.R. No. 35 is stated to have been recorded in the Roznamcha regarding unnatural death of the deceased on 7-10-1991. Post-mortem examination on the dead body was conducted in the General Hospital, Ambala, at 5.20 P.M. on 7-10-1991. In the report of post-mortem injury No. 4 at the back of head of the deceased "which was bleeding and there was swelling in front and behind, was considered to be fatal. The Board of Directors on the basis of the various injuries on the body of the deceased and specially injury No. 4 opined as under :-
"In our opinion the cause of death in the case is due to neurogenic shock as a result of injuries to vital organ (Brain), which is in turn is due to injury No. 4 and is sufficient to cause death in ordinary course of nature. All the injuries described in P.M.R. are ante mortem in nature."
The District Magistrate directed the Sub-Divisional Magistrate, Ambala to conduct an inquiry. The said Sub-Divisional Magistrate vide his report dated 7-10-1991, while nothing the contradictions in the statements of the police had raised definite suspicions with regard to the case and recommended the investigation by experts and reference of the matter to the Head of the Forensic Science Department of the Medical College, Rohtak. The relevant part of the report reads as under:-
"It is clearly evident from the statements of various witnesses, P.M.R. and also from the statement of Dr. C. N. Agrawal that the death of Rajinder Kumar is attributable to the grievous head injury. However, due to the contradictions in the P.M.R. and the Statement of Dr. Aggarwal, the actual cause of death of Rajinder Kumar is doubted. It is disputed as to whether the death of Rajinder Kumar occurred as a result of jumping out on the road from the canter an sustaining a head injury or due to Danda blow and the same, as such, is still a mystery. There is also contradictions in the statements of the police constable and the Thanedar. The constable stated that the deceased was found lying near enclyptus trees, whereas the Thanedar stated that he was found lying on the road side. The contradictions gives rise to the suspicion. I, therefore, request that the matter be got further investigated from an expert and the expert advice may also be sought from the Head of the Forensic Department, Medical College, Rohtak."
It is averred in the petition that the petitioner and other persons of the locality had approached the District Administration for registration of the case, but no case was registered and they were defending the guilty police officials. A complaint in this regard was filed by the petitioner on 11 -10-1991. Having failed to get any result, the petitioner had even moved the Superintendent of Police, the Chief Minister of the State Government and even the Prime Minster of India. The petitioner claims to have received a communication dated 14-11-1991, copy of which has been placed on record, from Prime Minister's office that the matter was being looked into by the Ministry of Home Affairs, New Delhi. Still nothing seems to have happened. Consequently the petitioner was compelled to file a writ petition No. 3033 of 1993, titled as Naurata Ram v. State of Haryana. That writ petition was disposed of by a Division Bench vide order dated 29-9-1993 with the hope that the matter would receive appropriate attention and action would be taken in accordance with the law. It was observed as under :-
"We have heard the learned counsel for the parties. It has remained undisputed before us that no case has been registered against any police officials as yet. The death in police custody has not been denied, may be, a different version is being given in the written statement. In view thereof, we are of the firm view that the present writ petition can be disposed of with a direction to the State of Haryana to make a deposit of Rs. 1,50,000/- in fixed deposit in the name of the parents of the deceased in a nationalised bank at Ambala, within one month from today. This order would be in the nature of an interim relief to the family of the deceased who is yet to be granted a suitable compensation in the civil suit.
xx xx xx xx As regards the registration of the case against the guilty police officials, we leave this matter to be decided by the Director General of Police, Haryana, who would take into consideration all the facts and circumstances of the case including Annexure P/6. The decision, whether any case is to be registered against the guilty police officials or not, be taken by the Director General of police, Haryana, at the earliest and preferably within a period of two months. However, the petitioner would be at liberty to approach this Court again if he is aggrieved against the order to be ultimately passed by the Director General of Police.
The Registry is directed to send a copy of this order to the respondents along with a copy of Annexure P/6 forthwith. A copy of this order be given dasti to the counsel for the petitioner free of cost."
The Director General of Police failed to comply with the order of the Court and no case was registered. In fact no order was passed within a period of two months as directed by the Division Bench vide its order aforesaid. This led the petitioner to file another writ petition bearing No. 5429 of 1994, in this Court. The prayers made by the petitioner in the, earlier writ petition were reiterated in this writ petition. The respondents stated before the Court that they would comply with the orders of the Court within one week and on this statement being made, the Court permitted the respondent to pass a speaking order with liberty to the petitioner to challenge the same if he was aggrieved by that order. The order dated 2-8-1994 vide which the Court had disposed of the writ petition, merely confirmed the earlier order passed by the Bench. The Director General of Police passed an order on 5-8-1994 wherein he arrived at a conclusion to the following effect:-
"I, therefore, find absolutely no justification to order the registration of case of murder against A.S.I. Amar Nath and Constable Inder Singh as demanded by the petitioner."
It is this order passed by the Director General of Police, Haryana, that has resulted in the filing of the present writ petition.
4. In the reply it is stated that the deceased was arrested on 10-10-1991 for an offence under Section 292 of Indian Penal Code. The diversion of fact in the case of the prosecution is only to the extent that the deceased had jumped from the vehicle (Canter) in which he was carried by the police. Upon jumping from the vehicle he suffered injuries and ultimately succumbed to the same. Rajinder Kumar was arrested by the police while he was seeing a blue film in his shop at Saha Chowk. The police claims not to have inflicted any injury upon the deceased nor he is stated to have been beaten by the police. It is further stated that the deceased was. not properly hand-cuffed and an enquiry in this regard had been conducted by Additional Superintendent of Police, Ambala. It is also stated that some disciplinary action had been taken against the guilty officials and they have been punished by stoppage of five increments with cumulative effect vide order dated 27-10-1994.
5. The learned Additional Advocate General, Haryana, argued before us that the order dated 5-8-1994 could not be set aside in this writ petition because it was a clear case of suicide by the deceased. This argument is hardly of any consequence because Rajinder Kumar died admittedly in police custody and if it was case of suicide or otherwise, a death in police custody would only change the nature of the enquiry i.e. either an enquiry would be called for under Section 174 of the Criminal Procedure Code or while in the case of death in police custody, the provisions of Section 176 of the Code would be attracted.
6. During the course of hearing we had also directed the records to be produced before us. From the record it is clear that certain fact remains unexplained and call for investigation by a proper investigation agency. The order of Shri Kalyan Rudra also does not depict the correct version. He has failed to take note of the contradictions between the statements made by the police witnesses. The report notes that Rajinder Kumar had jumped from the canter and the police officials had stopped the vehicle, but they would not trace out the deceased. The report of Dr. Aggrawal is on the record. There was hardly any occasion requiring the Additional Superintendent of police to speak to the doctor. The post mortem report was categorical, specific and not vague. In fact the police itself had failed to act of the report of the Sub-Divisional Magistrate which had clearly directed the investigation to be conducted from an expert and further expert advice was also called for from the Forensic Science Department. This report of the Sub-Divisional Magistrate has hardly been referred and discussed, least to say that its directions were followed by the police authorities while considering this case.
7. From the records produced before us we also notice that the stand taken by the respondents is the earlier writ petition No. 3033 of 1993 was at variance with the statements recorded by the Sub-Divisional Magistrate of the witnesses and the police officials. In paras Nos. 3 and 4 of that counter affidavit the stand taken was that Rajinder Kumar had jumped from the canter while he was being taken to the police station. It is stated that at the instance of constable Inder Singh the vehicle was stopped and the deceased was searched immediately. It was found that deceased Rajinder Kumar was lying in the kacha and sustained injury in his head due to fall and was breathing hardly. This stand is falsified by the statement of constable Inder Singh and A.S.I. Amar Nath, which were recorded by the Sub-Divisional Magistrate on 7-10-1991. We, therefore, feel that the suspicion expressed by the Sub-Divisional Magistrate in his report, where he noticed the contradictions and directed further investigation was a correct step and the police was under obligation to register a case and conduct investigation in accordance with law.
8. A very material circumstance which requires to be thoroughly investigated is what actually happened between the time when Rajinder Kumar is alleged to have jumped from the canter till he was taken to the hospital in a very serious condition. Admittedly a police officials was sitting at the back of the canter. Amar Nath A.S.I, himself has stated that the vehicles was stopped immediately after the said constable had given a signal and he informed that Rajinder Kumar had jumped from the canter. After the vehicle was stopped they tried to locate the deceased, which they were not able to do. It is interesting to note that the said Assistant Sub-Inspector has stated in his statement that they could not find the deceased even though they looked for him for quite a distance. He further stated that enquiry was also made from a person who was coming from behind about Rajinder Kumar but he stated that he did not see any one. A truck was coming behind which was also stopped by the police. Enquiry was also made from the truck driver but he stated that he had not seen Rajinder Kumar on the road or anywhere. The said A.S.I, also admitted that after jumping Rajinder Kumar must have run away.
9. It is difficult to ignore all these facts/ evidence which find no mention in the entire order of Mr. Kalyan Rudra dated 5-8-1994. What is difficult to believe is that on their way back the police found Rajinder Kumar lying by the side of the road and he was crying in pain. If this was true, there is no reason why should the truck driver and the person who was walking on the road side not have noticed Rajinder Kumar deceased lying on the road side. This certainly needs a proper investigation by an independent agency so that there can be a proper explanation brought on record in regard to the occurrence in question and if case is made out, the guilty should not be permitted go scot free.
10. The police authorities are not required to sit in judgment and pronounce a verdict whether a case under any offence should or should not be registered against the alleged accused. This entirely falls in judicial domain and it is only the Court of competent jurisdiction which has to pronounce the decision whether a cash is made out against any person or not and whether the case should be directed to be closed in accordance with the provisions of the Criminal Procedure Code or not. The police authorities have a very limited jurisdiction and it is a settled principle of law that once a cognizable offence is made out on the bare facts brought to the notice of the police by means of an F.I.R. or otherwise the police has hardly any choice but to Register a case in accordance with law. In the present case certainly the concerned officer has fallen in error to pronounce an order amounting to a verdict of a Court and holding that he found no justification, whatsoever, for registration of the case against the official/officers of the police. The order is not supported even by the record produced before us and the officer concerned has erred in not even taking note of the serious contradictions and version put by the petitioner in this petition and even in earlier civil writ petitions.
11. The earlier orders passed by the Division Bench of this Court had directed the respondent No. 3 to examine the matter for the purpose of registration of a case in accordance with law and not to conduct an enquiry, for the purposes of registration. But it appears from the order itself that the Director General of Police has made investigations, which was neither the intention nor could it be the intention of the Court, because the law does not so postulate.
12. The statements of various witnesses including that of A.S.I. Amar Nath were recorded by the Sub-Divisional Magistrate on 7-10-1991. These statements certainly make out a case for the purpose of registration and investigation in accordance with law. A.S.I. Amar Nath, in his statement, has also admitted that he had found considerable blood on the spot where the deceased was lying. No blood stains, however, were collected and no plausible explanation has been given in the statement as to why the same was not done. At this stage the police is-not concerned whether a case for conviction is made out or not against the accused. The police is only to examine the matter from the point of registration of a case for the purposes of proper investigation and not for the purpose of finding merits of the case on appreciation of the facts stated and information brought to its notice by any person with regard to the occurrence.
13. It will be proper to refer to a recent decision of the Supreme Court in State of Harayana v. Ch. Bhajan Lal, reported as 1991 (1) Recent Cri R 383 : (1992 Cri LJ 527). The Supreme Court after detailed discussion with regard to the relevant provisions of the Criminal Procedure Code and the law settled by the Apex Court in various cases held:
"It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 15(1) of the Code, the said police has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."
This judgment of the Supreme Court not only provides a comprehensive mandate with regard to the functioning of the police officials/officers in accordance with the Criminal Procedure Code, but completely makes it obligatory upon the police officials/officers to perform their statutory duties without embarking upon conducting an Inquiry before registration of the case, if bare reading of the facts and the first information report discloses an cognizable offence. It was further specifically held by the Supreme Court as under:-
"At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with, those sections in extenso in the present context). In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who is satisfied that the information forwarded to him discloses a cognizable offence should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code."
Thus, it is clear that well demarcated sphere of activity in the field of crime detection and crime punishment has been provided. There is no scope for intermingling the same. The Executive must discharge its duty and leave it for the Judiciary to determine the merits of the case and to pronounce -Verdicts in accordance with law.
14. The Hon'ble Supreme Court also considered somewhat similar situation in the case of Kashmeri Devi v. Delhi Administration, 1988 (2) Rec Cri R 44 : (1988 Cri LJ 1800), where Gopi Ram had died in police custody and when the writ petitions were pending before the Court, the F.I.R. was converted from Section 304, I.P.C. to Section 323/34, I.P.C, held as under :-
"This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in Delhi Police which is supposed to protect life and liberty of citizens and maintain law and order. There have been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was conducted with a view to shield the guilty members of the Delhi police."
xx xx xx xx "Prima-facie the police acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are, therefore, of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known."
Thus, the law settled by the Apex Court is that the police have, under Section 154(1) of the Code, a statutory duty to register a cognizable offence and thereafter under Section 156(1) a statutory duty and right to investigate a cognizable case.
15. In the present case the statements of the witnesses including the alleged co-accused in F.I.R. No. 215 dated 6-10-1991 that they were beaten by the police even at the shop, the other circumstances attendant thereto, and the statements of the Dr. Aggarwal and father of the deceased bring out sufficient material to constitute a cognizable offence under the provisions of the Indian Penal Code. No justification has been placed on record as to why the direction of the Sub-Divisional Magistrate for conducting further investigation and taking opinion of an expert from the Department of Forensic Sciences, Medical College, Rohtak, was not carried out. These circumstances raise a reasonable apprehension in the mind of the Court that unnecessary protection is being provided to the police officials.
16. The earlier orders passed by the Division Bench in Civil Writ Petitions No. 3033 of 193,3 and 5429 of 1994 are clearly indicative of the fact that Court was prima facie of the view that a wrong has been committed and, as such, had directed to the police authorities to deposit a compensation of Rs. 1,50,000/- and also directed the matter to be looked into more seriously, but the indication of the Court in said two orders have been lost sight of by the respondent and, therefore, the conclusion arrived at by the said respondents is not correct. A Division Bench of Delhi High Court in the case of Kuldip Singh v. State, 1994 (2) Rec Cri R 498, also considered a case where Kuldip Singh was alleged to have been ruthlessly beaten by rods and Dandas by the police officials in jail and the police had declined to register the case and had taken the stand that Kuldip Singh attempt to escape from the prison and to foil this attempt some force was used, but the allegations of beating were denied and the police had refused to register a case as according to their version no cognizable offence was made out, while rejecting the stand of the police, the Court held as under :-
"In our view the legal position is clear that on information being laid before the Police about the commission of a cognizable offence the Police has no option but to register the case and then to proceed with investigation of the case under the provisions of Chapter XII of the Code. The police can also decide not to investigate in terms contemplated by Section 157(1) of the Code. The police has no right to refuse registration of a case on information being laid before it about commission of cognizable offence and instead proceed with an enquiry and refuse registration as a result of the said enquiry. If it is left to be determined by the Police to decide in which cases of disclosure of commission of cognizable offence it would first hold preliminary enquiry and then decide to register or not to register the case, it would also lead to delay in registration of the crime and in the meantime the material evidence may not be available. The conduct of enquiry itself may entail a long period. There may be then challenge to the said enquiry. The enquiry of the nature suggested by the respondents is not permissible in law."
17. Not only a citizen but every person has a right to fair protection and fair enquiry/investigation within the four corners of law. This right has been given full recognition in the principles of our criminal jurisprudence. The codified law, in the provisions of the Criminal Procedure Code is sufficient indication of legislative intention to provide such protection to the complainant. Fairness in enquiry, investigation and providing a fair defence to an accused is the underlying feature of the Code. In the present case the story put forward on behalf of the respondents does not inspire confidence. The entire story, on the one hand, appears to be improbable, and on the other, it suffers from serious contradiction. Further more, a clear intention on the part of the respondents not to carry out the directions issued by the Sub-Divisional Magistrate in his report dated 7-10-1991 also raises a suspicion in the mind of the Court. The Courts have taken the view that failure by the Police to carry out the directions issued by the Sub-Divisional Magistrate under Section 174 or 176 of the Code, for saving themselves or some other persons is itself punishable. (Emperor v. Maturanath De, AIR 1932 Cal 850): (33 Cri LJ 657).
18. In the case of Ram Gopal Sisodia v. Delhi Administration, 1984 (3) Crimes 510, while, rejecting stand of the police and quashing the report under Section 173 of the Code submitted by the police, based on the fact that while in police custody the deceased in that case had committed suicide by taking Potassium Cyanide and no action could be taken against the police officials, the Delhi High Court-directed the Magistrate concerned to look into the material including the inquest report and other documents and to see whether the Court should take cognizance or not and case should be instituted or not. Keeping in view the inquest report, the statements, postmortem report and the allegations made by the petitioner against the police officials in this writ petition as also the earlier writ petitions, we see no reason as to why the F.I.R. should not be registered involving the police officials/officers', in accordance with law.
19. In view of the above discussion and the settled position of law, we quash the impugned order dated 5-8-1994 (Annexure P/11) passed by respondent No. 3 and allow the writ petition with costs, which are fixed at Rs. 5,000/- (Rs. five thousand only.) We direct Central Bureau of Investigation to register a case and investigate the same with a view to bringing the culprit(s) to book.