Punjab-Haryana High Court
Krishan Singh vs State Of Punjab And Others on 25 March, 2010
Criminal Misc. No.M-13925 of 2005 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-13925 of 2005
Date of decision : 25.3.2010
Krishan Singh ....Petitioner
Versus
State of Punjab and others ...Respondents
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. Kanwaljit Singh, Senior Advocate with
Ms. Sukhwinder Kaur, Advocate for the petitioner.
Mr. Sandeep Moudgil, Deputy Advocate General, Punjab
for the respondent.
S. D. ANAND, J.
The stances are contrary and unbending. The hoarse, (but deafening) cry of a father wants accountability fixed for the custodial death of his teenager son. The State resists the plea by reiterating that its agencies (Magisterial and also the law enforcement personnel) had done the job well and found it to be a case of suicide by the deceased. The petitioner, in support of the plea for investigation by CBI, relies upon many chinks in the state version. State does not yield and sounds a diffident note. The Court has no option but to adjudicate the validity or otherwise of a plea for (further) probe by Central Bureau of Investigation.
Facts, apparent from the material obtaining on the record, are as under:-
Gurtez Singh son of Kishan Singh went missing on Criminal Misc. No.M-13925 of 2005 -2- ***** 30.12.1998. After abortive search endeavour, his father Kishan Singh lodged a DDR No.4 dated 9.2.99 with the police of Police Station, Amloh (Annexure P-1). A missing notice was also issued by Kishan Singh in the issue dated 15.2.1999 of Punjabi Desh Sewak, a vernacular having circulation in the State of Punjab. On 11.12.1999, Kishan Singh received a call from the police of Amloh informing him that his son Gurtez Singh had committed suicide in the lock up.
A number of news items appeared in the Press raising demand for a C.B.I. probe into the death of Gurtez Singh. Annexure P-4 is the translation of a news item appearing in the issue dated 12.12.1999 of Desh Sewak wherein certain office bearers of an organisation demanded holding of a CBI probe into the death of Gurtez Singh. Annexure P-5 is the English translation of a news item dated 11.12.1999 appearing in the Ajit (Punjabi). That news item announced the death of Gurtez Singh and also the suspension of four police officials including the SHO in connection therewith. Annexure P-6 is the English translation of a news item which appeared in issue dated 11.12.1999 of the Tribune which, too, informed the readers about suspension of four police officials including the SHO. It also contained a statement attributed to the then SSP (City) who informed that Gurtez Singh had been found, in the course of the enquiry, to have committed suicide by hanging himself with the help of his shirt from a ceiling fan.
Thereafter, Kishan Singh filed Criminal Misc. No. 192-M Criminal Misc. No.M-13925 of 2005 -3- ***** of 2000 (Annexure P-7) for the issuance of a writ/direction requiring the CBI to investigate/enquire "that too at higher level" into the death of Gurtez Singh. That petition was disposed by a Coordinate Bench of this Court on 8.1.2002 (Annexure P-9). After noticing the stance taken by the State, the Bench required the SSP, Amritsar to have a re-look into the matter and take a decision in accordance with law within six months thereof.
Nothing fruitful having emerged to satiate his desire to get the murderers of his son punished, Kishan Singh filed Criminal Misc. No.13925 of 2005. As an interim measure, that petition was disposed of on 16.8.2008 on the basis of a consensual arrangement which was documented as under in the impugned order itself:-
"i) The inquiry into the matter pertaining to the death of the child of the petitioner shall be conducted by a Police Officer of the rank of an Inspector General of Police, who shall conclude the inquiry within three months from today;
ii) As an interim measure, without any expression of opinion on the ultimate merits of the case, the State shall pay a compensation of Rs.5 lac to the petitioner. An offer to that effect was made by the learned State counsel, which has been accepted by the learned counsel for the petitioner. It is clarified that the quantification of compensation is only as an interim measure. It will be open to the petitioner to Criminal Misc. No.M-13925 of 2005 -4- ***** ask for higher amount of compensation subject to the outcome of the inquiry by the Inspector General of Police. The amount of compensation shall be paid to the petitioner within two weeks from today;
iii) the agreement aforementioned would not constitute any concession on the merits of controversy on behalf of either side."
There was an averment, the course of the stance adopted by the respondent, that the police of the Police Station A Division, Amritsar, had forwarded a report for the cancellation of FIR No.194 of 1999. With a view to enable appropriate appreciation of the facts, this Court had desired the requisition of the relevant file. In view of the fact that file aforementioned was found missing, an enquiry into the episode was got conducted by the learned District Judge, Amritsar While disposing of this petition, as an interim measure, this Court had directed that the file shall be listed for orders on judicial side on receipt of further information qua the enquiry aforementioned. It was further directed that the State shall intimate the identity of the Officer to whom the enquiry had been entrusted. The further order was that, on receipt of enquiry report, the matter shall be put up before this court for further appropriate orders in accordance with law. Both the parties were held entitled to make a mention and apply for restoration of the matter. Thereafter, enquiry into the death of Gurtez Singh was held by Inspector General of Police/Border, Amritsar. He recorded a finding that it was Criminal Misc. No.M-13925 of 2005 -5- ***** a case of mere administrative dereliction on the part of certain police officials. However, the report exonerated the police of a charge of having caused the custodial death of Gurtez Singh.
In the course of the report, Enquiry Officer noticed that an enquiry held by the Executive Magistrate and the local Police Chief, had already exonerated the police of any accountability for having caused death of Gurtez Singh.
As this matter came to be listed for further orders on the judicial side, learned State Counsel raised a preliminary objection with regard to maintainability of the further request on behalf of the petitioner herein for entrustment of the matter to the CBI for investigation. It was argued that the matter having already been disposed of on consensual basis and the petitioner herein having accepted the amount of Rs.5 lacs as compensation in terms of the consensual arrangement aforementioned, is estopped from requiring the Court to grant any further relief.
The plea was thoroughly resisted by the learned counsel appearing on behalf of the petitioner who argued that the consensual arrangement relied upon by the learned State counsel was only as interim measure and there is no warrant for the advocated proposition that no further relief can be applied for on behalf of the petitioner.
I find myself in complete agreement with the learned counsel for the petitioner herein. The reasons therefor are as under:-
Criminal Misc. No.M-13925 of 2005 -6-
***** The order dated 16.8.2008 is categorical to the effect that the disposal of the writ petition, on the basis of noticed consensual arrangement, was only interim in character and both the parties were held entitled to make a mention at a subsequent point of time. This inference can further be buttressed by the fact that the Registry had been directed to list the matter for further orders on judicial side, on receipt of enquiry report of the enquiry officer. There can, thus, be no escape from the conclusion that the preliminary objection qua the maintainability of the plea for further relief is incompetent and shall stand negatived accordingly.
To put the record straight, it must be noticed that on 11.9.2010, the learned Senior Counsel appearing on behalf of the petitioner stated that the present is a fit case wherein the State could make an offer on its own to get the matter investigated by the C.B.I. In that context, learned Senior Counsel also pointed out that the filing of challan under Sections 304-A, 382 and 506 IPC is inappropriate as the complainant had lost his young son in the police custody and there are certain tell tale circumstances to indicate that it was a case of custodial death for which accountability has to be fixed upon the police officials.
It was ordered, in the context of that averment made on behalf of the petitioner, that this Court would like to have the stance of the State whether it would like the matter to be referred to the CBI for investigation or not.
The State, in the affidavit dated 15.3.2010 of the Under Criminal Misc. No.M-13925 of 2005 -7- ***** Secretary to Govt. of Punjab, Department of Home Affairs & Justice, nodded in the negative.
This case seems to have had a very chequered history. The police initially sent up the case for cancellation and the case was cancelled by the Magistrate. In the peculiar circumstances of the case, this Court desired requisition of the cancellation report and the orders passed thereupon by the learned Illaqa Magistrate. In response, an intimation was received that the relevant papers had been misplaced. An enquiry into the matter was held by a Judicial Officer who indicted the concerned court official who was custodian of the file. In the context of a grievance on behalf of the petitioner that no notice of the cancellation had been given to the petitioner herein, who was the real aggrieved/affected person being father of deceased Gurtez Singh, the State was called upon to place on record the copies of the order and also documentation pertaining to the cancellation of the relevant cases FIR No.193 and 194 of 1999. The former is the case in connection with which the deceased had been detained; while the latter is the case which was registered on account of death of deceased in police custody. In the context of the latter case, Amarjit Singh Bajwa, Deputy Superintendent of Police, City-I, Amritsar made the following averment in the course of the counter dated 16.3.2006:-
"It is further submitted that the answering respondent has no knowledge if any notice was given either to the petitioner or any of his relative by the ld. Trial Court in Criminal Misc. No.M-13925 of 2005 -8- ***** case FIR No.194/99 dated 10.12.1999, under Sections 304-A IPC, P.S. `A' Division, Amritsar, as no relevant record could be made available from judicial record room despite requesting to issue certified copy of the order."
The following circumstances can safely be culled out from the material obtaining on the file including the material noticed in particular in the preceding paras of this order:-
1. The deceased came to be detained by the police in connection with FIR No.193 of 1999 and put in the lock up at 9.30 P.M. on 10.12.1999. He is alleged to have committed suicide within few hours thereof. In the FIR (No.193 of 1999), there is no averment that the deceased had been belaboured by the crowd. The fact that as many as 14 injuries were found on the person of the deceased is apparent from the post-mortem report which is noticed in the enquiry report furnished by none else or other than the Enquiry Officer who is holding the rank of an Inspector General of Police. There is a precise averment therein (i.e. the FIR) that it was the complainant who had sustained some bit of injury on his hand. There is not even a whisper therein that the accused ( i.e. Gurtez Singh) had sustained any injury whatsoever in the process of capture. The injuries found on the dead body of the deceased in the post-mortem are extracted hereunder for precise notice:-Criminal Misc. No.M-13925 of 2005 -9-
***** "1. Ligature: - Soft ligrlise of Shirt, sleeve found tied around neck knot, present on (L) side of neck just below the angle of madiblle. Ligature material cut (R) side & tied by a thread keeping the knot intact.
Ligature mark : Raddish browns, coloured. Ligature mark present on front, both sides & back of neck up to martoid grooved ligature mark is present on & (L) side of neck. 4 cm to 3.5 cm above the throid cartilage & inbe Chin ligature mark is running oblig or both sides of neck along the mandible upto maidwoid processes & is hard perchment like on front to back of (R) neck marks is faint on back of neck porterior hairline region.
2. R.B.A. 2.2 x 1 cm on middled jorivead 3 cm above medical and of (R) even.
3. 1.5 x 1 cm R.B.A. On bridge of nose.
4. 2 x 1 cm Raddish birem above on (L) side of fact 9.5 cm in front of traigues of Ear.
5. 3x2.5cm R.B.A on (L) side of face 5.5 cm enteral below right of mouth.
6. 2x0.8 cm REA on (L) side Chin.
7. 4 x 3.5 cm R. Breinos abrol brain SP on Top at (L) shoulder.
8. 4.0.5 cm RBA on front of (L) forearms 5cm Criminal Misc. No.M-13925 of 2005 -10- ***** milzed cubtal facsa.
9. 0.6 x 0.3 cm RBA on back of (L) Elbow.
10. 4.2.5 cm raddish blow brist on back of (L) foaevern 11 cm below tip of elbow.
11. 7x3 cm raddish blow bearise on back of (R) shoulder 14 cm below tip of shoulder.
12. 22 x 18 cm & raddish blue.
13. 17 x 13 cm raddish blow brense present in ( R) buttock.
14. 18 x 3 cm raddish blow beninse present on ( R) popletical region."
2. The fact that a large number of injuries were found on the dead body of the deceased raises quite a doubt calling for a re-look into the whole affair,particularly because the plea adopted presently by the police is that those injuries had been been caused by the crowd which helped the complainant (in FIR No.193) nab him. There is no explanation whatsoever about why the factum of those injuries could not be indicated in that FIR. Why, then, the medical examination of the deceased was not got done and what dis-entitled him to medical treatment is not discernable from the record. This aspect has been noticed by the Enquiry Officer in the report by observing, in an unsure manner though, as under:-
"SI Kashmiri Lal should have got done the medical Criminal Misc. No.M-13925 of 2005 -11- ***** examination of Gurtez Singh @ Raju at the first instance and according to the opinion of the Doctor, he should have got admitted him in the hospital or should have given medicines _ _ _ _ _. So far there is question of injuries on the person of deceased, it appears from the nature of injuries and time of injuries that it might have been caused by public."
That Gurtez Singh was a first offender was noticed by the enquiry officer in the report ("No doubt, there was no earlier case registered against him but it come to light that about 1 year ago he had run from his house and his father Kishan Singh lodged a report at P.S.Amloh."). That single act of 'fleeing' from house by a teenager does not make him a criminal in any case. "Qua the supervisory conduct of those in charge of the incarceration, the enquiry officer observed that "in case of illness of the accused, MHC is responsible for giving medicines, meals etc. to accused -------. It is the duty of the Sentry that when an accused is put in the lock up, he does this with the help of MHC. He has to provide medicines, meals by telling the same to MHC/SHO. He is responsible for taking care of the accused------. No doubt the gate of the lock up was at some distance from the gate of the police station, even then he should have called from outside and to ask about the well being of the accused but he had Criminal Misc. No.M-13925 of 2005 -12- ***** done this only one or two times as he has recorded in his statement. (This seems a little doubtful. Had he been enquiring from him after 10-15 minutes then this occurrence may not have happened.").
3. That the police stance through out has been that the deceased committed suicide with the help of his shirt by hanging from a ventilator. However, in the course of the counter dated 11.12.2004 filed by Dinesh Partap Singh, Assistant Superintendent of Police City-I, Amritsar, there is an averment that the deceased hanged himself with the grills of window in the police lock up. ("That in reply to para No.7 of the petition, it is submitted that in compliance of order dated 8.1.2002 of the Hon'ble High Court detailed enquiry was got conducted through DSP City-I Amritsar who had submitted that accused Gurtej Singh @ Raju hanged himself with the Grills of window in the police lock-up in case FIR No.193/99 u/s 382/511 IPC PS `A' Div. Amritsar and proceedings under section 176 Cr.P.C. Were conducted by the Executive Magistrate Sh. Surinder Singh.").
4. The cancellation report was prepared on 12.6.2000 and the acceptance thereof and consequential discharge of the police officials came about on 3.3.2001.
5. In the absence of a copy of order granted by the learned Illaqa Magistrate on the cancellation report, it had Criminal Misc. No.M-13925 of 2005 -13- ***** been left to the State to produce the corresponding (police) record. In the normal course of things, when a report for cancellation case is submitted to the Court and it comes to be granted, it is common practice that Public Prosecutor/ Naib Court would note down the order granted by the Magistrate and make a mention thereof in the relevant register/roznamcha. The same procedure shall have to be followed even if the learned Magistrate were to grant orders to the contrary. No such record was produced before this Court. It is perusal thereof only which could indicate who exactly had been, if, at all, heard from the side of the complainant. For the moment, the respondents do not indicate the identity of the person to whom the notice (of the cancellation plea) had been issued. It is obvious, in the circumstances of the case, that it is the father/family of the deceased who were the 'real' complainants/aggrieved. They are not even averred to have been notified or heard by the learned Illaqa Magistrate.
6. Amarjit Singh Bajwa, Deputy Superintendent of Police, City-I, Amritsar took up the plea that he had no knowledge, if any notice was given either to the petitioner herein who is father of the deceased or or any of his relations or not. He indicated, in the context, that he was not able to state so in view of fact that "no relevant record Criminal Misc. No.M-13925 of 2005 -14- ***** could be made available from judicial record room despite requesting to issue certified copy of order."
7. Though this Court had issued the following instructions on the judicial side vide order dated 31.7.2009, it is the proven fact that the relevant judicial file had not been found to have consigned to the record room and certified copy of the order could not be supplied to the police on that account only.
"1. All the Judicial Officers in the State of Punjab, Haryana and UT, Chandigarh shall be duty bound to ensure that the cancellation reports received from the police are entered in the relevant registers. The date to which the matter stands adjourned for notification of the plea to the complainant shall also be recorded against that entry.
2. On the adjourned date, the fixture of the cancellation shall be noticed in the cause list.
3. All the concerned Judicial Officers shall furnish a report, on monthly basis to their respective Sessions Judge indicating the particulars of the cancellation reports received during that month. the proceedings taken therein and the orders passed thereupon.
4. Insofar as the State is concerned, it may also consider the feasibility of issuing instructions Criminal Misc. No.M-13925 of 2005 -15- ***** requiring the SHO of each Police Station to furnish a similar statement to the Police Chief of the District, on monthly basis.
5. The compliance of the instructions (issued by this Court on the judicial side and also the administrative instructions which may be issued by the State in accord with the sentiments of this Court) would ensure that no cancellation report shall get misplaced. If any such report gets misplaced, it would not at all be difficult to fix the accountability therefor."
The following facts are apparent from the material obtaining on the record:-
1. The deceased died within few hours of his having been detained in the lock-up.
2. FIR No.193 of 1999 in connection with which the deceased had been arrested did not, at all, indicate that any injury had been caused to him by persons who helped the first informant nab him.
3. The fact that there were as many as fourteen injuries found on the dead body of the deceased, was proved by the post-mortem report.
4. The Enquiry Officer found that the deceased ought to have been got medically examined in the first instance and the medical treatment also ought to have been given Criminal Misc. No.M-13925 of 2005 -16- ***** to him. He further found that the deceased had neither been got medically examined nor had any treatment/medicines been given to him.
5. One part of the police stance is to the effect that deceased hanged himself from the ventilator; while the other version is that he hanged himself from the window.
6. No meals were provided to the deceased in the lock up.
7. The case pertaining to the death of the deceased was averred to have been sent up for cancellation.
However, the judicial file in the context was found to be missing and the police were not in a position to produce any copy of the entire proceedings including the plea for cancellation or the orders granted by the Court.
8. There is no evidence about whether any notice of cancellation plea (of case FIR No.194 of 1999) ever came to be issued to the father/family members of the deceased.
9. The facts, apparent on the record, indicate that the directions issued by the Apex Court in D.K.Basu's case (1997) 1 SCC 416 had not been complied with. All these factors indicate that the entire transaction pertaining to the circumstances under which the deceased died is shrouded in mystery. Truth must be unravelled. Though these observations are not to be taken to be accusatory towards any Criminal Misc. No.M-13925 of 2005 -17- ***** quarters at all, all the segments of the system of administration of justice must feel inclined to have the truth unravelled. The father and family of the deceased can legitimately have that expectation from the law.
This Court, would, accordingly, order that the matter under reference shall be investigated by the Central Bureau of Investigation which shall furnish a report to the Registry of this Court at an early date, preferably within three months. In view of the well known pre- occupation and commitments of the premier Investigating Agency, it might have to make a plea for extension of time in case the investigation is found to require larger amount of time. At the same time, this Court would hope and trust that the investigation of this case shall receive expected attention of the agency in view of the fact that the allegations pertain to the custodial death of a young boy.
Disposed of accordingly.
March 25, 2010 (S. D. ANAND)
Pka JUDGE
Criminal Misc. No.M-13925 of 2005 -18-
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