Gujarat High Court
Vishal vs State on 12 January, 2012
Author: S. Dave
Bench: Anant S. Dave, S. Dave
SCR.A/2719/2011 11/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2719 of 2011 ========================================================= VISHAL SHARADBHAI SINGALA - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MS GAYATRI B JADEJA for Applicant(s) : 1, MR. PK JANI, PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 4. MR UMESH A TRIVEDI for Respondent(s) : 2, MR KANDRAP H DHOLKIA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 24/05/2012 ORAL ORDER
1. Leave to join Union of India/Ministry of Home & Personnel Affairs, New Delhi and Central Beaure of Investigation as party respondents and copies of the petition as well as this order be served upon learned counsel appearing for the newly joined parties respectively. Learned advocate for the petitioner to carry out the aforesaid amendment forthwith.
2. Heard learned advocates for the parties.
3. In continuation to the orders passed by this Court dated 12.01.2012, 23.02.2012, 05.03.2012, on 07.05.2012, this Court passed an Oral Order as under :
"This petition under Articles 226 and 21 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 if filed by the petitioner against the respondents for a prayer to issue appropriate writ order or direction for awarding compensation for custodial torture and also for breach of fundamental rights guaranteed under Part-III of the Constitution of India.
2. Learned advocate for the petitioner would submit that while the petitioner was arrested on 25.08.2011 in connection with the FIR being CR No.I 956/2011 for the offences under Prohibition Act, the petitioner was subjected to custodial violence and during the time when he was in the police custody, respondent No.2 had inflicted fist and kick blows, pulled his hair, abused and threatened him and mercilessly inflicted lashes with leather belt all over the body of the petitioner. Along with the respondent No.2, the respondent No.3 also joined and participated in that inhuman and cruel act of violence. According to learned advocate for the petitioner, he complained to learned Magistrate about physical violence by respondent Nos. 2 and 3 and the learned Magistrate taking note of of such complaint of physical torture referred the petitioner to Government Hospital. The injuries inflicted all over the body of the petitioner are evident from the injury certificate dated 26.08.2011 issued by the Medical Officer of Guru Gobind Singh Hospital, Jamnagar. Relevant portion of the certificate reads as under:
"H/O. Assaulted injury by D.S.P. Of Jamnagar Subhashbhai Trivedi on 26/8/11 at 2.30 p.m. By Belt.
[1] Multiple Blackish & Red areas of multiple size seen on back of chest [imprint abrasions seen] [2] Multiple Blackish & Red areas seen on Rt. Arm [Imprint Abrasions seen] [3] Multiple Blackish red areas seen on front of Rt. Side of chest [Imprint abrasion seen] [4] Multiple Blackish Red areas are seen on Rt. Thigh [Imprint abrasions seen] All injures are not more than 24 hours old"
2.1 The petitioner was treated accordingly. Since the grievance of the petitioner was not redressed, the petitioner has invoked extra-ordinary writ jurisdiction by this Court under Article 226 of the Constitution of India with reliefs claimed in prayer clause being para 14 [a], [b] & [c] of the petition.
3. In answer to the notice issued by this Court, affidavits dated 05.02.2012 are filed by respondent No.2-District Superintendent of Police, Jamnagar and respondent No.3-Police Inspector, City "B" Division Police Station, Jamnagar, who though denied the allegations, could not dispute the statement of the petitioner before learned Magistrate about physical violence in the police custody. It seems that the court had ordered inquiry. The respondent No.2 filed affidavit on 05.02.2012 justifying his action by attributing involvement of the petitioner in 8 other offences under the Prohibition Act. It was also stated by respondent No.2 that the doctor who had issued certificate of injuries was of the opinion that such injuries could be inflicted by hitting with the bottom part of chappal or shoe and not by the leather belt. Again in para 10 of the affidavit it was reiterated that the petitioner was habitual offender and indulged in similar type of offences time and again and a list of offences registered against the petitioner was also annexed.
3.2 Since inquiry was already ordered and learned Magistrate was in seisin of inquiry, on 23.02.2012 this Court passed the following order:
"The manner in which affidavit in reply is filed by the District Superintendent of Police, District Jamnagar attributing registration of various offences against the accused and stating that there is no breach of human rights or no case of custodial torture is made out and recording of statement of the doctor at Exh.12, at this stage, this Court would not like to comment anything since the inquiry is already ordered by the learned Sessions Judge, which is to be conducted by the learned Judicial Magistrate, First Class.
However, it is made clear that the tenor in which the affidavit is filed justifying the action of torture of the accused in custody branding him as habitual offender, is not accepted.
The District Superintendent of Police, District Jamnagar is directed to remain personally present before the Court on the next date of hearing.
Post the matter on 5th March, 2012.
3.3 Since there was no progress in the inquiry held by the learned Magistrate, on 10.04.2012, it was made clear that if no final decision is taken by the learned Magistrate, who is assigned the inquiry on or before 04.05.2012, appropriate order will be passed in the matter. No further affidavit is filed by the respondents.
4. Today, it is reported that the learned Magistrate has adjourned the proceedings to 07.06.2012. This would go to show that the learned Magistrate, who was ordered to proceed with the inquiry has not taken prompt and proper steps in the matter and has not concluded the inquiry even after three months.
5. In view of the above and considering the law laid down by the Apex Court in the case of D.K. Basu v. State of West Bengal [AIR 1997 SC 610], the respondnet Nos.2 and 3 are guilty of breach of the said guidelines, which are pertaining to any form of torture, cruelty, inhuman, degrading during the investigation / interrogation or otherwise and the Apex Court after highlighting custodial jurisprudence, in para 36 enumerated necessary requirements to be followed in all cases of arrest or detention by the police authorities. Such requirements / guidelines are binding law under Article 142 of the Constitution of India until Parliament enacts a legislation in this regard.
In view of the prima facie breach of the guidelines contained in para 36 of the judgment of the Apex Court in the case of D.K.Basu [supra], the competent authority viz. the Secretary, Home Department and Director General of Police, State of Gujarat are hereby directed to explain as to why departmental proceedings, including suspension and/or transfer of respondent No.2-District Superintendent of Police, Jamnagar and respondent No.3-police Inspector, City "B" Division Police Station, Jamnagar, be not initiated in view of the injury certificate issued by the Medical Officer, Guru Gobind Singh Hospital, Jamnagar.
Post the matter on 9th May, 2012.
Direct service is permitted.
Copy of this order be given to learned APP for its due compliance."
4. On 9.5.2012, upon appearance of learned Public Prosecutor on behalf of the State of Gujarat, the Court passed the following order :
"Heard Mr. Prakash Jani, learned Public Prosecutor, appearing for respondent No.1-State of Gujarat.
2. Considering the nature of prayers and subject matter of the petition, and orders passed on 12.01.2012, 10.04.2012 and 07.05.2012, the respondent Nos.2, 3 & 4 when serious allegations are levelled of custodial torture / violence, State Government is not expected to defend or raise defence on their behalf. The arguments and submissions of learned Public Prosecutor are in the realm of relief prayed against the respondent No.1.
3. It appears that the concerned learned Magistrate has not taken expeditious action, as envisaged in a serious case of custodial violence, except recording some statements. Therefore, in exercise of powers under Articles 226 & 227 of the Constitution of India read with Sections 482 & 483 of the Code of Criminal Procedure, 1973, the Registry is directed to forthwith call for the Record & Proceedings of Inquiry Case No.248 of 2011 from the court of learned J.M.F.C., Jamnagar.
3. The Registry to communicate this order to the concerned court for necessary compliance.
4. In view of the statement made by learned Public Prosecutor that his presence is necessary in the cases listed before the Apex Court on 10th & 11th May, 2012, post the matter on 22nd May, 2012."
5. The matter was listed on 22.5.2012 and upon appearance of learned advocate for respondent nos. 2, 3 & 4, the Court passed the following order.
"In continuation of the order dated 9.5.2012, record and proceedings of Inquiry Case No.248 of 2011 is received and to be kept in a sealed cover along with the case papers of Special Criminal Application No.2719 of 2011.
Shri Prakash Jani, learned PP who appears for respondent no.1-State of Gujarat states that so far as the allegations levelled against respondents no.2,3 and 4 are concerned, the state is willing to hold preliminary inquiry by the officer higher in rank than respondent no.2.
Shri Umesh Trivedi, learned advocate appears for respondent no.2, Shri A.Y.Kogje, learned advocate appears for respondent no.3 and Shri K.H.Dholakia, learned advocate appears for respondent no.4.
With a view to avail the remedy under Section 330 of Indian Penal Code against respondents no.2,3 and 4, the applicant is given time, S.O. to 24.5.2012."
6. In answer to the above orders, Shri PK Jani, learned Public Prosecutor has placed on record the order dated 23rd May, 2012 passed by Dy. Secretory, Department of Home, State of Gujarat by which, a fair stand is taken by the State Authority to consider all aspects pertaining to the special order of this petition by initiating preliminary inquiry. The above order is taken on record.
7. The respondent nos. 3 & 4 have also filed affidavits dated 23.05.2012 & 24.05.2012 respectively, which are ordered to be taken on record.
8. However, the petitioner who is present in the Court, has tendered an affidavit dated 23.05.2012 before this Court, in which the petitioner has stated that due to personal reason and at the behest of leaders of his community and other influential person of the city, he is compelled to withdraw all grievances raised in the petition against all the respondents.
9. The above additional affidavit of the petitioner is ordered to be taken on record.
10. In compliance with the earlier order, this Court has received the record of inquiry case no. 248/2011, which is ordered to be kept in a sealed cover and to be kept separately by the Registrar, High Court of Gujarat.
11. Now, the question arises about the statement on Oath made by the petitioner of withdrawing allegations against respondent nos. 2, 3 & 4 and his decision not to prosecute, is whether influenced and tempered by respondent nos. 2, 3 & 4 or the decision is taken by the petitioner voluntarily and if so, why the petitioner is not to be prosecuted by filing FIR under sections 182, 186, 209 and 211 of Indian Penal Code and other relevant provisions of the same Code. Explanation to this extent be tendered by the petitioner, if he chooses to do so, on or before 29.05.2012.
In the meanwhile, the events which have taken place after the order dated 12th January, 2012 passed by this Court, culminating into affidavit dated 23.05.2012 filed by the complainant, prima facie reveal that the complainant, who is pursuing the cause since last about 8 months and one of the major grievances of the complainant in this petition is about inaction on the part of the learned Judicial Magistrate in delaying the proceedings of inquiry and further awarding suitable compensation in the case of custodial torture meted out to him during police custody and breach of his fundamental right guaranteed under part-III of the Constitution of India, who is present in the Court, has stated that due to pressure exerted by the leaders of the community, the complainant is compelled to withdraw the proceedings, speaks volumes about the efforts made by respondent nos. 2,3 & 4 who are at the helm of the affairs of the District Police Administration at Jamnagar. The petitioner was supported even by his community leaders and representation was made to the authorities for taking action against custodial torture - violence and it was so reflected in the representation dated 27.08.2011 addressed to the District Collector ad copy of which also sent to the Chief Justice of High Court of Gujarat. It is to be further noticed that as per the last order dated 22.05.2012, when the FIR was to be registered under Section 330 of the IPC against respondent nos. 2, 3 & 4 and time was given to the petitioner accordingly, today an affidavit is tendered before this Court by the complainant requesting the Court not to proceed further with the matter. The above circumstances and events reveal that presence of respondent nos. 2, 3 & 4 in the district and city of the Jamnagar as police officers, would certainly hamper the inquiry-investigation i.e. to be ordered by an independent agency including CBI and or CID (Crime) State of Gujarat in addition to the departmental proceedings that may be initiated against respondent nos. 2, 3 & 4. The Court exercising powers under Article 226 of the Constitution of India dealing with subject matter of custodial torture - violence and blatant misuse of powers by police officers, can not remain mute spectator or witness to attempts made by respondent nos. 2, 3 & 4 to temper with cause of justice and to establish majesty of rule of law, it has become imperative for this Court to take immediate action directing State Government and other parties including Union of India, to take immediate administrative measures including disciplinary action against respondent nos. 2, 3 & 4 so that they remain out of sphere of influence so that they may not cause hindrance in pursuing cause of justice, particularly when serious allegations of custodial torture - violence have been levelled against them.
12. Therefore, a detailed inquiry - investigation is necessary by an independent agency like CBI & or CID (Crime) Gandhinagar pertaining to affairs and events which have taken place after the Court passed order on 12.01.2012 resulting into complainant filing an affidavit dated 23.05.2012 and further to take departmental proceedings against respondent nos. 2, 3 & 4 by the competent authority of the State Government and newly joined respondents by directing them to remove respondent nos. 2, 3 & 4 from their respective posts from the District and City Jamnagar so that fair, impartial and uninfluential investigation and or inquiry, can take place to unearth truth. For further orders stand over to 29/05/2012.
13. Copy of this /order be given to the parties respectively.
(Anant S. Dave, J) cmj/