Bombay High Court
Smt.Rekha Janardan Kale vs State Of Maharashtra on 31 March, 2012
Author: A.S. Oka
Bench: A.S.Oka
WP1795.11. f.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1795 OF 2011
Smt.Rekha Janardan Kale,
Resident of Mahi Jalgaon,
Tal. Karjat, Dist. Ahmednagar. ... Petitioner
v/s
1. State of Maharashtra
2. Ganesh Arvindrao More,
Sr. Police Inspector,
Baramati City Police Station,
Baramati, Dist. Pune.
3. Sr.Police Inspector,
Karjat Police Station,
Karjat, Dist. Ahmednagar.
4. The Dy. Superintendent of Police,
Baramati, Pune Rural, Pune.
5. The Superintendent of Police,
Pune Rural, Pune.
6. Dy. S.P. (C.I.D.),
State of Maharashtra, Pune.
7. Balasaheb Sarjerao Thorat, ASI
Presently at Daund Police Station,
Daund, Pune Rural, Pune.
8. Shivaji Rajaram Nikam,
Police Constable B. No.965.
Presently at Vadgaon Nimbalkar Police Stn.,
Baramati, Pune Rural, Pune.
9. Bhanudas Vitthal Jagdale,
Police Constable B. No.208
10. Sandip Jagannath Kadam,
Police Constable B. No.214.
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11. Sandip Chandrakant Jadhav,
Police Constable B. No.220.
12. Ramesh Baburao Kekan,
Police Constable B. No.1075.
(Respondent No.9 to 12 -
Presently at
Vadgaon Nimbalkar
Police Station, Baramati,
Pune Rural, Pune.
.....
Mr. Kuldeep S. Patil with Mr.Prashant S. Hazare i/by
Ms.Pushkarni Kulkarni for the petitioner.
Mr. K.V.Saste, A.P.P. for Resp. Nos.1, 3, 4 and 5 State.
Mr. A.P.Mundargi, Sr. Advocate i/by Mr.Rahul S. Kate for Resp.
No.2.
Mr. R.D.Suryawanshi for Resp. No.7 to 12.
CORAM: A.S.OKA AND
SHRIHARI P. DAVARE, JJ
JUDGMENT RESERVED ON: 27TH MARCH 2012
JUDGMENT DICTATED IN OPEN COURT ON 31ST MARCH 2012
AND 02ND APRIL 2012
ORAL JUDGMENT (Per A.S. Oka, J.):
1. As per the earlier orders, we have taken up the writ petition for final hearing. This petition could not be taken up by the regular Bench taking up writ petitions, and therefore, as per the general order passed by the Hon'ble the Chief Justice, this petition has been assigned to this Bench.
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2. This is a petition raises soul searching questions, whether the police are custodians or protectors of law and liberty or whether they are the law unto themselves. This is another case where gross and flagrant violation of fundamental rights under Article 21 of the Constitution of India has been brought to the notice of this Court.
3. Before going into the sad and tragic scenario which emerges before us, it will be necessary to look into the factual controversy involved in this petition.
4. The controversy relates to the custodial death of one Janardan Kale, a resident of Mahi Jalgaon, Taluka - Karjat, District Ahmednagar. The present petitioner is the widow of said Janardan. In the petition, it is pointed out that Janardan is survived by the petitioner and four minor daughters, whose ages as set out in the petition are 9, 8, 6 and 5 respectively. The Respondent No.2 is the senior Inspector of Police who was at the relevant time attached to Baramati police station in District Pune. He is made party in his official capacity as the Respondent No.3. The Respondent Nos.4, 5 and 6 are the Dy. Superintendent of Police, Baramati, Pune Rural, Pune , the Superintendent of Police, Pune Rural, Bhangale 3/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw Pune and the Dy. S.P. (C.I.D.),State of Maharashtra, Pune respectively. The Respondent No. 7 Balasahib Thorat was at the relevant time Assistant Inspector of Police attached to Baramati Police Station. The Respondent No. 8 to 12 are the police constables who were attached to the said police station at the relevant time.
5. The case made out in the petition is that, the petitioner along with her deceased husband Janardan were residing at Mahi-Jalgaon, Taluka Karjat, District Ahmednagar. Janardan used to earn livelihood by doing labour work. The case is that the police officials attached to Baramati Police Station in Pune District forcibly picked up the said Janardan on 14th June 2010. The allegation of the Petitioner is that Police Constable Nikam (Respondent No.8), who was at the relevant time attached to Baramati Police Station, continuously called up the petitioner on her cell phone and demanded a sum of Rs.10 lacs for the release of her husband. It is stated that the petitioner's father Vishwanath Bhau Kale is a resident of the same village who happens to be an owner of agricultural lands, house and Bolero jeep. The allegation is that, demands were made on her cellphone by the officials of Baramati Police Station to deliver the money and a threat was given to implicate deceased Janardan in various cases in case the Bhangale 4/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw demand was not met.
6. In paragraph 4 of the petition, it is set out that on 16 th June 2009, in the morning, the petitioner received a phone call from Respondent No.8 on her cell phone number 9960877922 that the police were about to reach the village Mahi Jalgaon along with Janardan. A threat was given to the petitioner that if demand for money is not satisfied, dire consequences will follow and she along with her husband will be implicated in several offences. It is pointed out that on 16th June 2009, said Janardan was taken by a private Sumo vehicle bearing registration No.MH.42/H 1384 by the officials of Baramati Police Station from the said police station.
Thereafter, the police officials took Janardan to Jamkhed where one Reshma @ Tai Parshuram Pawar, the sister of the petitioner is residing. The officials of Baramati Police Station seized one DVD Player from the house of Reshma and at about 9.30 a.m. to 10.30 a.m., said Janardan was taken to the house of the petitioner's father. The police officials informed the father of the petitioner that they were taking said Reshma to Baramati. Therefore, petitioner's father told them that he wanted to accompany them. Accordingly, the petitioner's father and her sister proceeded in his own Bolero vehicle which was being driven by Ramesh Kekan, a police constable Bhangale 5/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw attached to Baramati Police Station, who is the Respondent No.12 in this petition. It is stated that Respondent No.8 informed the petitioner that they had arrested her father and sister. The allegation is that, a constant demand for money was made by Respondent No.8 by continuously calling the petitioner.
7. At about 2.00 p.m. to 3.00 p.m. on 16th June 2009, the petitioner received a call from Respondent No.8 informing that they were waiting for the petitioner at Malhar Dhaba at Mahi-Jalgaon, Taluka Karjat in District Ahmednagar on Nagar-
Solapur Highway. A threat was given that if she failed to appear, the entire family would be implicated in the unsolved offences. The petitioner proceeded to Karjat and at about 7.00 p.m., she called up Respondent No.8 by informing that she was waiting at Karjat Bus Stand. It is alleged that, at about 7.30 p.m., the officials along with petitioner's father came to Karjat Bus Stand. They were travelling by her father's Bolero vehicle and her father along with her sister were in the Sumo vehicle along with other officials. The petitioner was taken to Baramati where they reached at about 9.30 p.m. She was not permitted to meet her husband Janardan and her sister. It is alleged that at about 10.30 p.m., one constable provided food to the petitioner and her Bhangale 6/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw daughter and also gave liquor to her father. The petitioner was thereafter informed that her husband had met with an accident and he has been hospitalized at Giriraj Hospital at Baramati. The case of the petitioner is that, in the night she slept along with her daughter on the sand lying in front of Giriraj Hospital. The petitioner stated that, at that time, she noticed that her father was under pressure and he was behaving abnormally. On the next day ,at about 4.00 a.m., Respondent No.8 and Respondent No.7 (Balasaheb Thorat, A.S.I.) awakened the petitioner and asked her to give her thumb impression on a blank paper. On enquiry being made, she was informed that her husband had sustained injury in the accident and for his surgery, thumb impression was necessary.
8. At about 4.30 a.m., the petitioner was taken to Giriraj Hospital and was informed that her husband had died. The inquest panchanama was made. The case of the petitioner is that, at about 9.00 a.m., she met her sister when her sister disclosed that Janardan was assaulted by the police.
According to the petitioner, her sister informed her that police assaulted herself and her father. After autopsy was conducted, the police took the petitioner, her father and her sister along with the dead body. According to the petitioner, a Bhangale 7/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw threat was given to them of dire consequences if the incident was disclosed to anybody else. The police officials informed her that they have decided to cremate the body at Baramati.
The petitioner and her father informed the police that, as per the rituals prevailing in the community, the dead body is required to be buried. The petitioner's father informed the police that they were desirous taking the dead body by his Bolero jeep to the village for funeral. Thereafter the police forcibly took all of them to Amardham cremation ground at Baramati and the body was cremated. It is stated that, at the time of cremation, some persons came to the cremation ground, and therefore, the police ran away. Two police officials took the petitioner, her father and her sister to one lodge and kept them there till 18th June 2009. The petitioner learnt that the persons who visited the cremation ground were journalists of the local newspapers. A case is made out that the second Respondent Mr.More, who was the Senior Inspector of Police of Baramati City Police Station, Respondent No.7 and Respondent No.8 threatened the petitioner, her father and sister of dire consequences if the incident was disclosed to anyone else. An allegation is made that, at the said lodge, the police assaulted the petitioner, her father and sister. The case is that thereafter the police had managed a driver for Bolero jeep and the petitioner, her father and sister Bhangale 8/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw were taken to Mahi-Jalgaon. It is alleged that the petitioner, her father and sister were under shock and pressure due to the death of Janardan and the assault at the hands of the police. Reliance is placed on newspaper cuttings of the news items of the incident which appeared in the newspapers.
9. The petitioner pointed out that one Sanjay B. Bansode and one Kaluram chaudhary filed a complaint with the Maharashtra Human Rights Commission praying for holding an enquiry in respect of custodial death of her husband. It is alleged that the Deputy Superintendent of Police Maghshyam Malegaonkar and Deputy Superintendent of Police S.A.K. Mujawar (C.I.D. Pune) filed their reports with the Human Rights Commission and certain directions were issued by the Human Rights Commission. It is pointed out that the Human Rights Commission observed that Injury No.2 described in the postmortem notes is a punctured wound which can be possible only when a person sustains bullet injury.
10. There is a reference made to the agitation made by the social activists for holding the enquiry into custodial death of petitioner's husband. The Sub-Divisional Magistrate, Baramati, had recorded statements of the petitioner and others. It is alleged that when statements of the petitioner, Bhangale 9/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw her father and sister were recorded in the house of the petitioner, door and windows of the house were closed and Sub-Divisional Magistrate Shri Deshmukh threatened the petitioner and stated that if she makes allegation against the police officers, she will have to suffer dire consequences.
According to the petitioner, the Sub-Divisional Magistrate Shri Deshmukh informed her that if she withdraws her complaint against the police he will ask Respondent No.2 to give sum of Rs.3 lacs to her.ig
11. It is contended that the petitioner's husband was illegally detained from 14th June 2009 without showing him arrested and that he was not even produced before the learned Magistrate. It is pointed out that though there are Government hospitals at Karjat, Rashin and also at Bhigwan, the petitioner's husband was taken to Baramati by travelling for some distance and even first aid was not provided to him.
12. It is contended in the petition that as per the version of the police, the petitioner's husband met with an accident involving a truck having 10 wheels. It is contended that there were two jeeps and 5 to 6 police personnel, but neither the registration number of the truck was noted nor any attempt was made to chase the truck. It is pointed out that a Toll-
Bhangale 10/67 ::: Downloaded on - 09/06/2013 18:22:58 :::WP1795.11. f.sxw naka is about 20 km from the spot where the truck could have been caught easily. It is contended that, in fact there was no such accident and the death occurred of her husband due to mercilessly assault made by the police on the person of her husband. It is pointed out that, after a lapse of six months i.e. on 24th January 2010, F.I.R. was lodged at Karjat Police Station alleging rash and negligent driving on the part of the driver of the unknown truck. The petitioner has stated that, she has learnt from the locality that some police officials were possessing unlicensed revolvers and her husband died due to bullet injury at the hands of officers of Baramati Police Station. It is contended that the said fact is very clear from the punctured wound found on the person of the deceased Janardan. The allegations have been made against the officials who conducted the enquiry. The prayer in the petition is to direct the Respondents to forthwith register the offence under Sections 302 and 201 read with Section 34 of Indian Penal Code. The second prayer is for transfer of investigation. The third prayer is for grant of compensation of Rs.10 lacs.
13. There is a reply filed by the 2 nd Respondent Mr. Ganesh Anandrao More. The reply is dated 2nd August, 2011. A detailed affidavit is filed by Mr.S.A.K.Mujawar, Deputy Bhangale 11/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw Superintendent of Police attached to State C.I.D.,(Crime), Pune. The said affidavit is filed by the State Government for bringing on record the proceedings of the enquiry conducted.
There is further affidavit filed by Mr.Mujawar to which the photo copies of the extracts of the station diary have been annexed and copies of show cause notices issued to the erring police officials have been annexed. On behalf of Respondent Nos.7 to 12, Respondent No.7 Balasaheb Thorat has filed a reply.
ig The contentions which are raised in the reply are in substance that, Janardan was never arrested and he was accompanying police in connection with the investigation of an offence. In the evening of 16 th June 2009 at about 7.00 p.m. when the Police party had arrived at Dhaba, Janardan under the pretext of going to toilet started running towards the road and therefore, police officials started chasing him. It is alleged that the police constable Jadhav (Exh.11) tumbled. At that time, one truck was passing towards Solapur. The said Janardan crossed the said truck and while turning to the left, the truck gave him a dash. It is alleged that, thereafter the said Janardan was taken to Karjat S.T. Stand where the petitioner was waiting. Thereafter, he was taken to Baramati at about 09.15 p.m. to Dr.Gokul Kale who advised the police officials to admit him to Giriraj Hospital. In Giriraj Hospital at Baramati,he was declared as Bhangale 12/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw dead. Various allegations made by the petitioner have been denied. Reliance has been placed on various reports of various officers investigating into the entire episode.
14. The learned counsel appearing for the petitioner has taken us through averments made in the petition, annexures to the petition and reply affidavits and various annexures thereto. His submission is that the petitioner was illegally detained from 14th June 2009 without showing his arrest and without producing him before the learned Magistrate. He pointed out that the incident of accidental death is clearly doubtful as no report was lodged by the concerned officers with the local police station i.e. Karjat Police Station till the dead body was cremated. He submitted that without informing the local police station, the said Janardan who was allegedly in injured condition was carried to all the way to Baramati where he was shown as dead. He pointed out that, going by their own case, the police officers even did not provide the first aid to the deceased Janardan. He submitted that, only after cremation of the deceased was done at Baramati, that a report was lodged with the local police station. He pointed out that the stand taken by the various police officers at the initial stage wherein it was alleged that the deceased threw himself under the truck thereby Bhangale 13/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw committing suicide. He submitted that, only by way of an after though that the police have come out with the case that there was negligence on the part of the driver of the truck.
He submitted that there are gross illegalities associated with several actions of the police. He pointed out that, without showing the said Janardan as arrested, he was taken in a private vehicle to Karjat in Ahmednagar District. He pointed out that, even going by the case of the police, a DVD player in the house of the petitioner's sister was seized without recording any seizure panchanama. There is no discovery memorandum recorded under Section 27 of the Evidence Act.
He pointed out that though there was no woman constable in the police party, the petitioner's sister was picked up by the police party.
15. He submitted that, even assuming that the case made out by the police is true, when there were so many hospitals around in Ahmednagar District, by undertaking traveling for more than two hours, the deceased was taken to Baramati.
He invited our attention to various reports of police officers of various enquiries and urged that the entire case made out by the police was concocted. He pointed out that the petitioner, her father and her sister were subjected to threats and in fact after forcible cremation of the deceased at Baramati, they Bhangale 14/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw were confined to a lodge. He has relied upon various decisions of the Apex Court and this Court including the decision of the Apex Court in the case of D.K.Basu v/s State of West Bengal (A.I.R. 1997 SC 610). He has made reference to various other judgments which are dealt with in the subsequent part of the judgment.
16. We heard the submissions of Shri Saste, the learned A.P.P appearing for Respondent Nos.1, 3, 4 and 5.
ig At this stage, it will be necessary for us to note that the learned A.P.P. has argued the case in a dispassionate manner and had fairly assisted the Court. It must be stated here that, on one of the earlier dates, the learned A.P.P produced before this Court a Government Resolution dated 6th March 2012 by which the State Government has sanctioned compensation of Rs. One lac to the petitioner. The learned A.P.P, on instructions of Shri Mujawar, the Deputy Superintendent of Police, C.I.D., State of Maharashtra, Pune, has made submissions. When a query was made by the Court as regards the stand of the State on the question whether Janardan was subjected to arrest, he pointed out that the stand of the State is that, it was a case of a custodial death and Janardan was arrested. He has taken us through the statements of various witnesses recorded in the enquiries and Bhangale 15/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw the statements of the petitioner herself, her sister and her father. He pointed out that, even the independent witnesses have stated about the accidental death of Janardan. When a query was made as to whether the deceased could have been taken by the police officers of Baramati Police Station of Pune District to Karjat in Ahmednagar District for investigation purpose without arresting him, he stated that the deceased could not have been taken without his consent for the purpose of investigation. He, however, on instructions, stated that on 16th June 2009, the deceased was taken into custody before he was taken to Karjat. He pointed out that the authorities of the State have treated the death of deceased as a custodial death. On instructions he also stated that there is no arrest panchanama drawn and there is no entry in the station diary of the arrest of deceased Janardan. He stated that there is no entry in the station diary as regards taking Janardan for investigation to Karjat in Ahmednagar District.
When a query was made as to whether any of the officers in any of the enquiries had called for the cell phone details of the cell phone of Respondent No.8 (Police Constable Nikam) and cell phone of the petitioner, on instructions, he stated that no such data has been obtained. He pointed out that, in one of the enquiries, the statement of driver of the vehicle by which deceased Janardan was taken, has been recorded. He Bhangale 16/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw submitted that, it is found that the case is of accident as a result of a dash given by a truck to the deceased. He pointed out that on the basis of the F.I.R lodged against the driver of unknown truck for rash and negligent driving, investigation was carried out and "A" summary report has been submitted and on this report, till today, no order has been passed by the learned Magistrate. His submission is that the case of the petitioner regarding threats given to her, to her father and sister and regarding the demand made by Respondent No.8, has no substance. He submitted that the allegation that Janardan died due to assault made by the police, has not been established and this is a case where while in police custody, Janardan died due to injury sustained in the accident.
17. Shri Mundargi, the learned senior counsel appearing for the 2nd Respondent, has taken us to the role of the 2 nd Respondent. He stated that the 2nd Respondent has played no role in the Janardan incident. However, he has filed an affidavit on the basis of the record available. He pointed out various parts of the affidavit and in particular, where it is stated that when he received the information about the accident from Respondent No.7, he directed the Respondent No.7 to take deceased to nearest hospital and to inform the Bhangale 17/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw nearest police station. He pointed out that, as far as 2 nd Respondent is concerned, he has done his duty. He has also invited our attention to paragraph 30 of his affidavit which refers to three offences registered against deceased Janardan in the year 2006 and 2007 at Karjat Police Station. He pointed out the reports of the enquiry conducted by the Sub-
Divisional magistrate, Deputy Superintendent of Police (C.I.D.), Pune and Sub-Divisional Police Officer, Baramati. He submitted that even the statements of the petitioner recorded in the enquiry show that the allegations made in this petition are clearly by way of an afterthought. He stated that the said statements also indicate that the death of the deceased Janardan was due to an accident. He submitted that the case made out regarding the demand of amount by Respondent No.8 is clearly an afterthought and is not reflected from any of the statements of the petitioner and her relatives recorded by any of the officers. He submitted that, as far as Respondent No.2 is concerned, at the relevant time, he was Senior Inspector of Police and it was his duty only to supervise the subordinate police officers and he cannot be held responsible for any default. He submitted that, if the record of the enquiry is perused, it becomes very apparent that the death was purely an accidental death.
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18. We also heard the learned counsel appearing for Respondent Nos.7 to 12. While adopting some of the submissions advanced by learned senior counsel for Respondent No.2, he has taken us through the documents on record. He submitted that a copy of the statement of Respondent No.7 dated 24th July, 2009 shows that he lodged the report regarding an accident with Karjat Police Station in District Ahmednagar, but the offence was not registered by the said police station on the ground that the State C.I.D. was seized of the matter. He pointed out that, as the said complaint was not recorded, on 24th January, 2010, the said Respondent again approached the police station and lodged F.I.R. He submitted that statements of all the Respondents have been recorded in the enquiry which reveal that it was a case of an accident. He pointed out that all the allegations made in the petition are by way of an after-thought. He submitted that no relief can be granted in the petition as there is no question of registering F.I.R. for commission of offence under Sections 302 and 201 read with Section 34 of the Indian Penal Code. He submits that the petition is devoid of any merit and the same deserves to be rejected.
19. The learned A.P.P. relied upon certain decisions of the Apex Court and submitted that, as the petitioner has a Bhangale 19/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw statutory remedy available, in normal course, this Court cannot issue a writ directing registration of F.I.R.
20. We have given careful consideration to the submissions.
We have perused the petition, all the annexures to the petition, reply affidavits and annexures to the reply affidavit.
It will be necessary to make a reference to the stand taken by the 2nd Respondent as well as 7th Respondent in their affidavits. It will be necessary also to make a reference to all the documents placed on record. Before we advert to the same, the position which is conceded by the State will have to be borne in mind that, at least on 16 th June 2009 before the Police party proceeded from Baramati Police Station to Karjat, the deceased Janardan was arrested. It is also an admitted position that no arrest panchanama was recorded and there is no entry in the station diary of the arrest and of the fact that the deceased was taken to Ahmednagar district for the purposes of the investigation.
21. Firstly, we make reference to the affidavit of 2 nd Respondent, who is the Senior Inspector of Police of Baramati City Police Station. He has disclosed that A.P.I. Bhosale was Investigating Officer of C.R. No.99 of 2009 registered with the Baramati City Police Station for the offences punishable under Bhangale 20/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw Sections 454, 457, 380 of Indian Penal Code. He has stated the steps taken from 14th June 2009 in the investigation of the said crime. He pointed out that, upon investigation, the name of Janardan transpired, and therefore, the police officials visited village Mahi-Jalgaon to enquire about the said Janardan. The said Janardan was not in his house, and therefore, Respondent No.8 Nikam provided his cell phone number to the father-in-law of Janardan and asked him to contact on the said cell phone number. It is stated that, on 14th June 2009, the officers brought Janardan to Baramati Police Station at about 6.30 p.m. It is pertinent to note that Respondent No.2 has specifically stated that the police officers of his police station brought Janardan to Baramati.
This shows that the police officials had taken said Janardan into the custody on 14th June 2009 and they brought him to Baramati. Further case is made out that, on that day he was allowed to go as the police did not have sufficient evidence to arrest him and he was asked to attend the police station on next day. It is stated that, Janardan attended the police station on 15th June 2009 and Respondent No.7 and officials of the detection branch were making enquiry with him.
Thereafter, he was asked to come back after lunch. He came back and was interrogated till 7.30 p.m. As no information was provided by him, the officers were informed to go to his Bhangale 21/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw village to find more information and Janardan was called to the police station on the next day in the morning.
22. In paragraph 7, Respondent No.2 has stated thus -
".........Thereafter, at 7.45 a.m. the police officials left the Baramati City Police station along with Janardan Kale after making entry in the station diary. I say that I was also informed by my staff on 15.6.2009 at 9.30 p.m. about the visit to Mahi Jalgaon. I say that I also informed Suptd. Of Police on 15.6.2009 at 9.30 p.m. about the visit of police officials to Mahi Jalgaon in respect of investigation of C.R.No.99 of 2009. Hereto annexed and marked as Exhibit "R-1" is the copy of wireless message."
At this stage, we may note that along with the affidavit of Respondent No.6, a photocopy of the station diary has been produced before this Court. The station diary entry at 7.45 a.m on 16th June 2009 shows that Respondent Nos.7 to 12 proceeded to Karjat in connection with C.R.No.99 of 2009.
However, the station diary does not make any reference to the deceased Janardan being taken along with the Police party. The 2nd Respondent relied upon a wireless message sent by him at 9.30 p.m. on 15 th June 2009 in which permission was sought to allow one officer and six police personnel attached to Baramati City Police Station to visit Ahmednagar in connection with C.R. No.99 of 2009. Even in Bhangale 22/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw the said wireless message, there is no reference to the fact that deceased Janardan was being taken with them. There is nothing placed on record to show that the Superintendant granted the permission.
23. Coming back to the affidavit of 2 nd Respondent, in paragraph 9, he stated that said Janardan informed the police that he has kept the stolen DVD player in the house of his sister-in-law at Jamkhed. Accordingly, the police officials went to Jamkhed and seized DVD player from the petitioner's sister.
It is pertinent to note that there is no seizure panchanama drawn of the said seizure. According to Respondent No.2, thereafter, the police officials went to the house of petitioner's father who was informed about the seizure of DVD player and petitioner's father was informed that the police officials were taking his daughter to Baramati in case it is found that the said DVD is stolen. This paragraph indicates that, even the petitioner's sister was picked up by the police and was taken to Baramati. It is pertinent to note that it is not the case made out that there was any woman police constable in the team of police officials. Respondent No.2 stated that petitioner's father on his own agreed to go along with his daughter to Mahi-Jalgaon. As regards the incident which occurred in the evening of 16 th June,2009, in paragraph 10, he Bhangale 23/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw has stated thus -
"I say that the police officials reached Malhar Dhaba at about 15.30 hrs. There all of them had lunch and they waited at Dhaba as petitioner informed her father on mobile that she is coming there and requested them to wait at Dhaba. I say that at 19.00 hrs., constable nikam received call from petitioner and she informed that she is at Karjat S.T. Stand and requested the police officials to come there. The police officials agreed to go to Karjat S.T. Stand under the bonafide impression that they will receive further information from her. At that time, the petitioner's husband on the pretext of going to toilet started running towards road, the police officials started chasing him. While chasing police constable Jadhav tumbled and at that time one truck was passing towards Solapur and said Janardan Kale crossed the said truck and while turning towards left he received dash of the truck. Thereafter, the police officials took him in the jeep and brought to Karjat S.T. Stand where the petitioner was waiting. Thereafter, they reached Baramati about 9.15 to 9.30 p.m. and he was taken to Dr.Gokul Kale who advised to admit him to Giriraj Hospital. I say that at that time petitioner's father and her sister were present at both the hospitals. I deny that her thumb impressions were obtained by constable Nikam and ASI Thorat on blank paper."
Thus, the specific case made out by the 2nd Respondent is that, Janardan on the pretext of going to toilet, started running towards road. The police officers started chasing him.
While doing so, police constable Respondent No.11 tumbled.
One truck was proceeding towards Solapur and that Janardan crossed the said truck and while turning towards left he received a dash of the truck. He has merely stated that Bhangale 24/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw police took him by jeep to Karjat where the petitioner was waiting and thereafter they reached Baramati at about 9.15 to 9.30 p.m. According to him, the incident occurred at 7.00 p.m. It is pertinent to note that, in paragraph 22 of his affidavit, Respondent No.2 has stated that the petitioner's father and petitioner's sister insisted that the deceased should be treated in better hospital either at Baramati or Ahmednagar as there was no big hospital at Karjat. He has stated that after he received information from ASI Thorat on cell phone he directed them to take him to the nearest hospital and also to inform nearest police station. Further part of the affidavit in paragraph 23 reads thus: -
"I say that as soon as the petitioner's husband met with an accident the police officials rushed towards said Janardan Kale and brought him to dhaba. In the meantime, due to sudden incident the said truck went away and nobody could notice the number of the truck as every one was trying to help the injured. I say that after the said accident the police officials immediately took them in the jeep and proceeded towards Baramati as per the request of petitioner's father and sister. I deny the allegation of the petitioner that no accident has taken place on that day. I say that as the police officials were trying to give better treatment to the injured and that they have informed Baramati City Police Station about the accident on phone. They did not inform Karjat Police Station on the same day however, Karjat police station was informed about the accident on the next day i.e. on 17.6.2009. Hereto annexed and marked as Exhibit R-2 is the copy of report dated 17.6.2009. I say that ASI Thorat lodged report on 24.7.2009 at Karjat Police Station however no offence was registered. Hereto annexed and marked Bhangale 25/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw as Exhibit R-3 is the copy of complaint dt. 24.7.2009."
In the entire affidavit, the 2nd Respondent has not come out with the case that even the first aid was provided to the deceased. Interestingly, in the same affidavit, the 2 nd Respondent has annexed a report dated 17 th June 2009 addressed to the Officer In-charge of Karjat Police Station in District Ahmednagar which refers to A.D.R. registered at Baramati Police Station.
ig In open Court we are informed by the learned A.P.P that the said report is signed by the 2 nd Respondent. The said report is in Marathi. In the said report, 2nd Respondent has come out with a completely a different version. The said version translated into English is that "as the petitioner had informed her father that she was reaching Karjat, the police officials were waiting near Malhar Dhaba. At that time, deceased Janardan , under the pretext of answering nature's call got down from the vehicle and started running towards the incoming truck. Janardan thereafter threw himself below the rear wheels of the truck." Thus, the specific case made out by the 2nd Respondent in his report which is earliest in point of time being dated 17 th June 2009 is that Janardan attempted to commit suicide by throwing himself under the rear wheels of the truck. He stated that the wheels on the cleaner's side went over the thigh of Janardan. He has Bhangale 26/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw stated in the report that there was no facility of any hospital nearby. He was taken to Dr.Bhoite's Giriraj Hospital at Baramati where he was declared dead at 11.30 in the night.
Thus, there is a complete variance in the affidavit of the 2 nd Respondent and his statement dated 17 th June, 2009. To the same affidavit, he has annexed statement of Respondent No.7 dated 24th June, 2009 recorded by the P.S.O. of Karjat Police Station, Dist. Ahmednagar, in which the theory of Janardan trying to run away and getting hit by the truck while trying to run away has been propounded by the 2nd Respondent.
24. At this stage, it will be necessary to make a reference of affidavit of Shri S.A.K. Mujawar, Deputy Superintendent of Police, State CID (Crime), Pune. He has annexed a copy of order dated 17th June, 2009 passed by the Superintendent of Police, C.I.D., Pune. In the said order dated 17 th June, 2009, again the version is that deceased Janardan threw himself below the rear wheels of the truck. However, in the said order, the death of Janardan has been described as a custodial death. This is relevant in the context of the statement made by the 2nd Respondent in paragraph 28 of the affidavit that Janardan was never arrested by the police. It is stated in the order that in view of the Government circular, the investigation was taken over by the State C.I.D. Under the Bhangale 27/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw said order dated 17th June, 2009, the Police Superintendent appointed Shri N.K. Gaikwad, Dy.S.P to hold enquiry. In that affidavit of Shri Mujawar, he has stated that, on 16 th June, 2009 after obtaining permission of Superintendent of Police, ASI Balasaheb Thorat (Respondent No.7) along with police staff and the said Janardan Kale went to the house of father-
in-law of Janardan Kale. However, the version of Respondent No.2 is that he had merely forwarded a wireless message on 15th June, 2009 to the Superintendent of Police.
ig The said wireless message is annexed to his affidavit and marked "R-
1". It is not the case made out by the 2 nd Respondent that permission was granted by the Superintendent of Police. In fact, in paragraph 7 of the affidavit on page 126 his statement is that he had merely informed the Superintendent of Police about the visit of police officials to Mahi-Jalgaon. Thus, there is no such permission obtained from the Superintendent of Police, going by the version of the 2nd Respondent.
25. To the affidavit of Shri Mujawar, a copy of the statement of Respondent No.7 Thorat recorded on 16 th June, 2009 by the Baramati Police station has been annexed. Even in the said statement which was recorded on 16 th June, 2009 at about 23.55, Respondent No.7 has come out with the case that by throwing himself under the rear wheels of the truck, Janardan Bhangale 28/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw tried to commit suicide. There is another interesting aspect of the matter. There is a letter dated 16 th June, 2009 addressed by the Inspector of police of Baramati City Police Station to the petitioner in which again the same statement is made that Janardan jumped under the wheels of the truck. A thumb impression of the petitioner appears to have been obtained on the same. This statement is annexed to the affidavit of Shri Mujawar. The Respondent No.2 More addressed a report dated 17th June,2009 ig to Taluka Executive Magistrate, Baramati, in which it is stated that deceased threw himself below the wheels of the truck. The same version is found in panchanama dated 17th June, 2009. It is on page 179 of the affidavit. In panchanama dated 18th June, 2009, a different case has been made out. In this panchanama, it is not recorded that Janardan threw himself under the truck. It is stated that he suddenly started running towards the road and came under the truck having 10 wheels. There is another document which is annexed to the affidavit of Shri Mujawar, on page 201. There is inquest panchanama recorded on 17 th June, 2009 by the Taluka Executive Magistrate, Baramati.
Even in the said panchanama, there is a version that Janardan threw himself under the truck. These are the documents annexed to the affidavit of Shri Mujawar himself. To the affidavit of Shri Mujawar, a statement of the petitioner Bhangale 29/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw recorded on 17th June, 2009 has been annexed in which she has disclosed the cell phone number of Respondent No.8. A capital was sought to be made by pointing out that there was no reference to the allegations made in the petition in the said statement. It is pertinent to note that statement has been recorded by police on 17th June, 2009. We can imagine in what circumstances and in what manner the statement must have been recorded. Statement of petitioner's father dated 17th June, 2009 has also been annexed in which it is recorded that deceased met with an accident when he started running away.
26. It is pointed out by the learned counsel appearing for the petitioner that a road Toll post was at a distance of 20 kms. from the place of incident. After a long lapse of time i.e. on 24th May, 2010, Shri Mujawar wrote a letter to the Manager of Toll post requesting for the details of the trucks which passed through the Tol-naka on 16th June, 2009. The reply to the said letter given by the Manager is not on record.
However, on page 221 there is a letter dated 10 th March, 2011 addressed by the Deputy Superintendent of Police of Ahmednagar to Shri Mujawar that the manager of the Toll-
post informed him that record of the vehicles passing through the post is maintained only for 24 hours. Thus, an attempt Bhangale 30/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw was made to secure the data as late as on 24 th May 2010. "A"
summary report submitted on 28 th April, 2011 after making investigation on the basis of F.I.R. dated 24 th January, 2010 lodged by Respondent No.7 has been annexed to the said affidavit. It is stated therein that the truck was having 10 wheels and the deceased received dash of the truck while he tried to run away. At this stage, we must note that the F.I.R.
was belatedly lodged on 24th January, 2010 by Respondent No.7 in which the allegation is that the driver of unknown truck was rash and negligent and therefore, offence punishable under Sections 279, 338, 304(A) of Indian Penal Code was committed on 16th June 2009. "A" summary report states that the truck and truck driver could not be traced.
27. At this stage, a reference will have to be made to the order passed by the Chairman and Member of the Human Rights Commission. In the said order dated 26 th October, 2010, it is noted that injury No.2 shown in the post mortem notes shows that the deceased died due to the said injury.
Opinion was expressed that expert opinion should be taken as regards the said injury on the aspect whether it was a bullet injury. Nine months after the said order was passed, the Deputy Superintendent of Police on 1st August, 2011 sought opinion of the concerned Medical Officer of Sassoon General Bhangale 31/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw Hospital at Pune. The opinion expressed by the concerned Medical Officer is that the said injury is not caused due to bullet, but the injury may have been caused by a pointed piece of a bone in the thigh which was crushed into pieces due to result of the accident.
28. Before proceeding to the affidavit of Respondent No.7, as pointed out earlier, extract of the station diary has been produced. At Item 41 on 16 th June, 2009 at 23.55 hrs , an entry has been made by Respondent No.7 of the incident in which again the theory mentioned is of Janardan throwing himself under the truck.
29. Now, we turn to the affidavit of Respondent No.7 Balasaheb Thorat. It is pertinent to note that the 2 nd Respondent in his affidavit has stated that on cell phone he directed Respondent No.7 to lodge a report to the local police station and take Janardan to the nearest hospital. Before going to what is stated in the affidavit of Respondent No.7, it must be stated that the consistent version of the said Respondent reflected from the reports filed by him on 16th and 17th June, 2009 is that by throwing himself under the truck, Janardan tried to commit suicide. In the said affidavit of Respondent No.7, it is even denied that Janardan was Bhangale 32/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw arrested. In the affidavit he has stated that Respondent No.11 arranged for one jeep from Nanasaheb Sarak and the petitioner was called to the police station on 16th June, 2009.
In the said affidavit, there is no reference to obtaining permission of the Superintendent of Police but it is merely stated that Respondent No.2 also informed Superintendent of Police about the visit of police officials to Mahi Jalgaon. It is also pertinent to note that notwithstanding the aforesaid stand taken by the said officer in all the reports including the entry made in the station diary, in paragraph 9 of the affidavit, he has stated thus: -
"I say that while chasing the husband of the petitioner, Police Constable Jadhav (Respondent No.10) tumbled and at that time one truck was passing towards Solapur and said Janardan Kale crossed the said truck and while turning towards left, he received dash of the truck. I say that thereafter the police officials took him in the jeep and brought to Karjat ST stand where the petitioner was waiting. I say that thereafter they reached Baramati at about 9.15 p.m. to 9.30 p.m. in order to give better treatment to said Janardan janu Kale as his father-in-law and sister-in-law were insisting that he should be given better treatment at better hospital either at Baramati or Nagar as there was no better hospital available at Karjat."
Thus, in the affidavit dated 18th February 2012 sworn on oath before this Court, a stand is taken that deceased Janardan while trying to run away he received dash of the Bhangale 33/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw truck. It will not be out of place to mention here that the affidavit of Respondent No.2 is dated 2 nd August 2011 and the affidavit of Respondent No.7 is of 18 th February, 2012. The first affidavit of Shri Mujawar is dated 3rd august, 2011 and the second affidavit of Shri Mujawar is dated 14 th October, 2011.
Even assuming that Respondent No.7 Balasaheb Thorat may have forgotten the stand taken by him in all the reports filed earliest in point of time and in the entry in the station diary, copies of all the said reports were already filed on record in this Court by way of annexures to the aforesaid affidavits. No attempt is made in the said affidavit by Respondent No.7 to explain why there is a variance in the stand taken by him and why he has taken an altogether a different stand than one that is taken in the report dated 16th June, 2009 submitted by him. In this affidavit, he has not even stated that any attempt was made to give first aid to the deceased. Thus, as far as Respondent Nos.2 and 7 are concerned, there are two inconsistent and self contradictory versions about the incident are on record. Obviously, both the versions cannot be true.
30 At this stage, we may refer to the reports of various authorities which are on record. As far as the order of Maharashtra Human Rights Commission is concerned, no adjudication has been made and while closing the case, Bhangale 34/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw liberty is reserved to the complainant - a social worker, to approach the appropriate forum. The first report is of Sub-
Divisional Magistrate, dated 15th October, 2010. That report is essentially regarding the cause of death. It is mentioned therein that the death was caused due to compound fracture of the bone and haemmorhage due to compound fracture.
Various statements are referred to in the report. It will be interesting to note that statement of Dr.Gokul recorded by him is part of the said report. The Doctor stated that police came to him at about 9.15 p.m. on 16 th June, 2009 with a patient whose condition appeared to be serious. He stated that, he came down and examined the patient in the vehicle and he found that there was no pulse and the patient was unconscious. Therefore he advised them to shift him to the hospital having ICU facility. The statement of Dr.R.R.Bhoite who runs the Giriraj hospital where the deceased was taken, shows that when the patient was brought to him at 9.30 p.m., there was no pulse and there was no movement of the body.
He has stated that as the body was warm, presuming that pulse has stopped on the way, cardiac resuscitation was given to the patient but without any success, and therefore, at 11.30 p.m. he declared the patient as dead. Thus, the incident, according to the police occurred at 7.00 p.m. at Karjat in Ahmednagar District and the police who are the Bhangale 35/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw custodians of the life of citizens brought the deceased to the doctor for the first time at 9.15 p.m. in the night. During this period, even first aid was not provided. To the said report of the Sub-Divisional Magistrate, a statement of petitioner, statement of Nanasaheb Sarak who was the driver of the jeep by which the police party proceeded and the statement of the petitioner's father has been annexed. Statement of the sister of the petitioner has been annexed on which reliance has been sought to be placed by the learned counsel appearing for the police officers by pointing out that the accidental death is admitted therein. If the statement is read, the sister of the petitioner has stated that, at the Dhaba ,the members of the police party consumed liquor and all of them assaulted Janardan by a belt and that the said Janardan was handcuffed.
31. Another document on record is the report dated 12 th May, 2010 submitted by the Additional Superintendent of Police, Baramati Police (Rural), addressed to the Registrar of the Human Rights Commission, in which reference was made to the statement of the complainant before the Human Rights Commission stating that he has filed the application due to misunderstanding, and therefore, a request was made for dropping the proceedings. He has recorded statements of Police Constable Jadhav and Police Constable Kekane in which Bhangale 36/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw said constables have come out with the case that deceased Janardan tried to run away and met with an accident. There is another report on record addressed to the Superintendent of Police, Pune (Rural) which is signed by Dr.Shrikant Paropkari, Sub-Divisional Officer, Baramati. In the said report it is stated that Janardan was not arrested and he was not handcuffed.
Under the pretext of answering nature's call he tried to run away. Dr.Paropkari has given a certificate of good conduct to the police personnel accompanying the deceased. In fact, in the report he has stated that the petitioner's father stated that if the Janardan was taken to Karjat, the members of his community will not allow treatment to be given to Janardan.
As a part of certificate of good conduct, Dr.Paropkari has stated that the police officers acted in good conscious ("Sadvivek" in Marathi) , and therefore, they brought Janardan to the hospital of Dr.Bhoite at Baramati. He has recorded that as the police officers brought Janardan to Shri Bhoite's hospital, inadvertently, a report remained to be given to the local police station. He has again stated that for entering other district for investigation, a permission was taken. The said report is addressed to the Superintendent of Police, Pune (Rural). There is one more report submitted by the Additional Superintendent of Police, Baramati, Pune, which is a detailed report addressed to the Registrar of the Human Rights Bhangale 37/67 ::: Downloaded on - 09/06/2013 18:22:58 ::: WP1795.11. f.sxw Commission in which there is reference to the report of Dr.Paropkari wherein it is stated that the petitioner, her father and her sister had informed that the deceased got injured due to an accident. Lastly, there is a report of Shri Mujawar, Deputy Superintendent of Police dated 25th October, 2010 which is again addressed to the said Human Rights Commission. His conclusion is that Janardan was brought to the Baramati Police Station without making any entry in the station diary and though the police were responsible for the security of Janardan, they were negligent as a result, Janardan ran away from their custody and an accident occurred as a dash given to Janardan by the truck. He has noted that though the deceased ought to have been immediately admitted to the nearest hospital, that was not done. No effort was made to follow the truck and a report of the incident was not submitted to Karjat Police Station. Perusal of the reports shows that none of the officers have taken into consideration the stand taken by Respondent Nos.2 and 7 at the earliest in point of time that Janardan tried to commit suicide by throwing himself under the rear wheels of the truck. Just to complete the narration of the stand taken by the officers of the State, a reference will have to be made to the Government decision dated 6th March, 2012 by which compensation of Rs. One lac was sanctioned to the petitioner.
Bhangale 38/67 ::: Downloaded on - 09/06/2013 18:22:58 :::WP1795.11. f.sxw Again in the said Government decision, it is stated that the deceased tried to throw himself below the truck and he tried to commit suicide. Before proceeding further , it must be noted here that in the F.I.R. lodged by Respondent No.7 on 24th January, 2010 at Karjat Police Station, an allegation has been made that the driver of the truck was drunk and was driving the vehicle negligently without considering the condition of the road in very high speed. In the F.I.R. he has stated that after the truck went away, they noticed that Janardan was lying by the side of the road. He noticed that, there were injuries on the thigh of Janardan. At this stage, we may refer to the injuries on the person of the deceased described in Col. No.17 in the post mortem notes and the said injuries are as follows :-
"(i) Contused Abrasion orch. (RP) poplitary fegial 6 cm.
X 5 cm. In size. Reddish blade in colour.
(ii) Punctured wound over posterior aspect of lower (lt) thigh region 1 cm. X 4 cm.
(iii) Reddish Blackish discolouration over fatal part of (lt) poplitial region 3 cm. X 3 cm. in size.
(iv) Abrasion orch. (IP) upper Anterior medical part of thigh 6 cm. X 1 cm. In size.
Bhangale 39/67 ::: Downloaded on - 09/06/2013 18:22:58 :::WP1795.11. f.sxw
(v) Abrasion over (RP) leg lower part Anterior fatal part 1 cm. X 1 cm. In size.
(vi) Huge swelling all over (IP) thigh region."
32. If what is narrated above is analyzed, a very disturbing and pathetic scenario emerges which is as under :-
(a) The deceased was picked up from his village in District Ahmednagar by police of the Baramati City Police Station on 14th June, 2009 without arresting him.
According to the case made out by the State, on 16 th June, 2009 before taking Janardan to Ahmednagar District, he was taken into custody.
(b) Perusal of various reports submitted by various police officers indicate the fact that Janardan was taken into custody has been proved. But categorical statements have been made on oath by the Respondent Nos. 2 and 7 that he was never arrested.
(c) There is no entry made in the station diary of the fact that Janardan was picked up from his village in Ahmednagar district and was brought to the Baramati police station in Pune District. There is no entry made in the diary of his arrest. There is no arrest Panchanama drawn. There is no entry made in the station diary of the fact that in the morning of 16 th June, 2009, Janardan was taken by a private vehicle to Ahmednagar District.
Bhangale 40/67 ::: Downloaded on - 09/06/2013 18:22:59 :::WP1795.11. f.sxw
(d) Though the Respondent Nos.7 to 12 had noticed that Janardan was seriously wounded, admittedly, not even first aid was provided to him. Instead of immediately taking him to nearby primary health centre or hospital in Ahmednagar district, the police undertook travel for two hours and more and took the deceased to "safe" destination of Baramati in Pune district within the jurisdiction of their own police station. There is absolutely no explanation why he was not taken to the primary medical health centre or a nearby dispensary. Importantly, no report of the incident was lodged with the local police station till the body was cremated at Baramati. Even telephonic information of the incident was not given to the local police.
(e) The version which is reported by all police officers first in point of time is that the deceased tried to commit suicide was by throwing himself below the truck. The said case was changed subsequently by making out a case of accident and negligence of the driver of the truck.
(f) Though there were seven policemen present who were having two vehicles at their command, no effort was made to follow the truck. No one noted the number of the truck.
(g) As if this is not enough, in none of the enquiries, the officers made any attempt to call for the cell phone Bhangale 41/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw record of the cell phone numbers of the petitioner and Respondent No.8 in the face of the specific allegation that the demand was made by Respondent No.8 by repeatedly calling the petitioner on her cell phone. It is very difficult to understand as to why the cell phone record was not called for by any of the officers who were doing the serious duty of holding enquiry into custodial death of a person. Even after filing of the Petition , this exercise was not done.
(h) The life of Janardan was lost as the police failed to give immediate medical treatment. This is apart from the illegal detention of the deceased.
33. In this background, it is not at all necessary to refer to any of the precedents for coming to the conclusion that this is a case of gross violation of fundamental rights guaranteed by Article 21 of the Constitution of India.
34. We may mention here that the police had taken deceased Janardan by a private vehicle. There is nothing on record to show that the police paid charges for the use of the vehicle. We are aware that there is no prohibition against the police from using a private vehicle for the purpose of investigation if the exigency demands. But considering the factual aspects which we have narrated, even this aspect Bhangale 42/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw creates a suspicion in our mind especially when the deceased was not shown as arrested and there is no entry made in any record including the station diary that Janardan was taken by the police party. If a Government vehicle is used, there is always a record maintained in the form of logbook, which notes the movement of the vehicle. We may only observe that while permitting the use of private vehicle for the purpose of investigation when the Government vehicles are available, certain safeguards will have to be provided.
However, it is for the Director General of Police to look into this aspect and issue necessary directions.
35. The prayers in the petition are threefold. The first prayer is for registration of F.I.R for the offence punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code. The second prayer is for transfer of investigation to appropriate agency and the third prayer is for grant of compensation. In the light of the findings which we have already recorded, we first deal with the last prayer regarding the grant of compensation. Now, it is not in dispute that at least on the morning of 16 th June, 2009, the deceased was taken into custody by the officers attached to Baramati City Police Station before he was carried in a private vehicle for investigation to Ahmednagar District. Thus, at least early in Bhangale 43/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw the morning of 16th June, 2009, the deceased was arrested. As far as aspect of arrest is concerned, law is laid down by the Apex Court in the case of D.K.Basu v/s State of West Bengal ([1997]1 SCC 416). It will be necessary to make a reference to the said decision of the Apex Court. In paragraph 9 of the said judgment, the Apex Court observed thus :-
"9. The importance of affirmed rights of every human being need no emphasis and, therefore, to de-
ter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the funda-
mental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which de-
mands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are sup- posed to be the protectors of the citizens. It is committed under the shield of uniform and au- thority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing offi- cers is a matter of deep concern in a free soci- ety. These petitions raise important issues con- cerning police powers, including whether mone-Bhangale 44/67 ::: Downloaded on - 09/06/2013 18:22:59 :::
WP1795.11. f.sxw tary compensation should be awarded for estab- lished infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Consti-
tution of India. The issues are fundamental."
(Emphasis added) Apart from the directions issued by the Apex Court regarding the procedure to be followed in case of arrest, the Apex Court has also dealt with the aspect of custodial death in paragraph 22 of the said decision which reads as follows :-
"22. Custodial death is perhaps one of the worst crimes in a civilized 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 treat- ment 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 lawless- ness and every man would have the tendency to be-
come law unto himself thereby leading to anarcha- nism. 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 Bhangale 45/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw of human rights' jurisprudence. The answer, in- deed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertri- als, detenus and other prisoners in custody, ex- cept according to the procedure established by law by placing such reasonable restrictions as are permitted by law."
(Emphasis added) Ultimately, in paragraph 35 of the judgment in the case of D.K.Basu(supra), the Apex Court directed that till the legal provisions are made as regards arrest or detention, the guidelines incorporated in the said paragraph shall be followed on all arrests or detentions. It will be necessary to advert to the directions to clauses (1) to (8) of paragraph 35 which reads thus -
"35. We, therefore, consider it appropriate to issue the fol- lowing requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as pre- ventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear ac-
curate, visible and clear identification and name tags with their designations. The particulars of all such police per- sonnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of ar-
Bhangale 46/67 ::: Downloaded on - 09/06/2013 18:22:59 :::WP1795.11. f.sxw rest and such memo shall be attested by at least one wit- ness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particu- lar place, unless the attesting witness of the memo of ar- rest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and partic-
ulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor in- juries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical exami- nation by a trained doctor every 48 hours during his de- tention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State Bhangale 47/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well."
Paragraphs 36 to 38 of the said decision read thus -
"36. Failure to comply with the requirements here-
inabove mentioned shall apart from rendering the of- ficial concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a refer- ence has been made earlier.
38. These requirements are in addition to the constitu- tional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee."
(emphasis added) What is held by the Apex Court is that the requirements incorporated in the directions in paragraph 35, flow from the fundamental rights guaranteed by Articles 21 and 22 (1) of the Constitution of India. In the present case, there is a gross breach committed by the police of the said directions. Obvi-
ously, no memo of arrest or arrest panchanama was drawn as required by the directions. No entry of the arrest of deceased Janardan was made in the diary as contemplated by directions Bhangale 48/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw contained in clause (6) in paragraph 35. Even the breach has been committed of clauses (3) and (4) of paragraph 35. At this stage, it will be also necessary to make a reference to the decision of the Apex Court in the case of Sheela Barse v/s State of Maharashtra ([1983] 2 SCC 96). The Apex Court issued directions by the said decision. The Apex Court direct-
ed that whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and it must be immediately made known to the ar-
rested person that he is entitled to apply for bail. In the present case, not only that the said direction has not been complied with, but even according to the case of the police, Janardan was never informed that he has been put under ar-
rest. Even said direction of the Apex Court issued in the Sheela Barse's case flows from the fundamental rights of the citizens guaranteed by Articles 21 and 22 of the Constitu-
tion of India. Thus, it is obvious that this is a case where apart from gross violation of the directions contained in afore-
said decisions of the Apex Court, a gross violation of funda-
mental rights of the said Janardan guaranteed by Articles 21 and 22 has been committed by the police. We have also pointed out that failure to comply with the requirements of the directions will render the concerned officer liable for de-
partmental action and shall also render him liable for punish-
Bhangale 49/67 ::: Downloaded on - 09/06/2013 18:22:59 :::WP1795.11. f.sxw ment for contempt of Court. In the present case, from the af-
fidavits on record, we find that departmental action has been initiated against the erring police officials. Today, while deliv-
ering this judgment, we refrain from taking an action under the Contempt of Courts Act only because this Court has not is-
sued show cause notice under the Contempt of Courts Act.
36. At this stage, it will also be necessary to make a reference to the decision of the Apex Court in the case of Nilabati Behara v/s State of Orissa & ors. (1993 (2) SCC
746). In paragraphs 17 and 18, the Apex Court has held thus :-
"17. It follows that 'a claim in public law for com- pensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowl- edged remedy for enforcement and protection of such rights, and such a claim based on strict liabil-
ity made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the reme- dy in private law for damages for the tort' result- ing from the contravention of the fundamental right. The defence of sovereign immunity being in- applicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitution- al remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitu- tion, when that is the only practicable mode of re- dress available for the contravention made by the Bhangale 50/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was in-
dicated in Rudul Sah1 and is the basis of the subsequent decisions in which compensation was awarded under Ar- ticles 32 and 226 of the Constitution, for contravention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right en- abling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious liability of the State in tort may arise, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at pages 44 to 48."
(emphasis added) In paragraphs 20 to 22 of the said decision, it is held thus:-
" 20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary com- pensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordi- nary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the Bhangale 51/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This reme-
dy in public law has to be more readily available when in- voked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial re- straint to avoid circumvention of private law remedies, where more appropriate.
21. We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indi- cates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under:
"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to com- pensation."
22. The above discussion indicates the principle on which the court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah1 and certain further observations therein adverted to earlier, which may tend to minimise the effect of the princi-
ple indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah1 and others in that line have to be under- stood and Kasturilal8 distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propri- ety of awarding compensation in such proceedings, instead of directing the claimant to resort to the or- dinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son."
(emphasis added) As far as the law regarding custodial death or custodial torture or other violations of Article 21 are concerned, in Bhangale 52/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw paragraph 46 of the decision of the Apex Court in the case of Suber Singh v/s State of Haryana & ors. (2006 (3) SCC
178) the Apex Court has held thus -
"46. In case where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the Courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of an magnitude to shock the conscience of the Court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the Courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action."
The last decision on this aspect is the decision dated 9 th September, 2011 rendered by the Apex Court in the case of Raghuvansh Dewanchand Bhasin v/s State of Maharashtra & anr. (Criminal Appeal No.1758 of 2011).
In paragraphs 9 and 19 of the said decision, the Apex Court has held thus -
"9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of Bhangale 53/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Court have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it "on the one side is the social need that crime shall be repressed. On the other hand, the social need that law shall not be flouted by the insolence of offence. There are dangers in any choice." Be that as it may, it is for the Court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from high handedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the Court to issue appropriate warrant against an accused on his failure to attend the Court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved;
the past conduct of the accused; his age and the possibility of the absconding."
"19. The power and jurisdiction of this Court and the High Courts to grant monetary compensation in exercise of its jurisdiction respectively under Articles 32 and 226 of the Constitution of India to a victim whose fundamental rights under Article 21 of the Constitution are violated are thus, well established. However, the question now is whether on facts in hand, the appellant is entitled to monetary compensation in addition to what has already been awarded to him by the High Court. Having considered the case in the light of the fact situation stated above, we are of Bhangale 54/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw the opinion that the appellant does not deserve further monetary compensation."
(emphasis added)
37. Thus, what follows is, in the present case, the petitioner who is the widow of deceased Janardan can seek compensation on the ground of violation of fundamental rights under Article 21 of the Constitution of India.
38. The Apex Court has repeatedly laid down the scope of Article 21 of the Constitution of India. The right to life conferred by the Constitution of India is not merely a right of animal existence, but it is a right to live with dignity. Article 21 incorporates obligation of the State to protect life of human being. Now, in the present case, we will have to examine whether any effort was made by the State to protect the life of Janardan. Even assuming that Janardan was put under arrest, the State was not absolved of its obligation to save his life. Going by the case made out in the affidavits filed on record, the alleged incident took place at about 7.00 p.m. Even going by the case as made out by the officers, the truck involved was having 10 wheels and both the legs of Janardan came under the rear wheels. So, even going by the case of the said officers, Janardan sustained very serious injuries. It is not even the case made out in any of the Bhangale 55/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw affidavits or any of the statements that even an attempt was made to provide first aid to Janardan. We have already made a reference to the statements recorded in one of the enquiries of the two doctors at Baramati. The statements show that when deceased Janardan was taken to Baramati, there was almost no sign of life. Going by the said statements, at least from 7.00 p.m. to 9.30 p.m., the Respondent Nos.7 to 12 who were accompanying deceased Janardan did not even extend simple courtesy of providing ig medical aid to Janardan.
Janardan was in their custody. Sadly, nothing was done to save the life of the deceased. It was the responsibility and obligation of the police officers to ensure that immediate medical aid was given to Janardan. On this aspect, we have already noted with distress the observations made by Dr.Paropkari, the Sub-Divisional Police Officer of Baramati, Pune. He has given a certificate to Respondent Nos.7 to 12 of acting in good conscious. In fact, Dr.Paropkari has given a certificate that there was no negligence on the part of the concerned police officers. We fail to understand as to how a senior police officer has given such a certificate while submitting a report to the Human Rights Commission. Apart from the violation of fundamental rights under Article 21 and 22, as held in the earlier paragraphs, failure to render medical treatment to Janardan who had sustained serious injuries also Bhangale 56/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw amounts to gross violation of fundamental right of liberty guaranteed by the Constitution of India under Article 21 of the Constitution of India. Therefore, this is a fit case where the State will have to adequately compensate the petitioner and her four daughters. As held by the Apex Court in various decisions, notwithstanding grant of compensation by this Court in this public law remedy, the petitioner can always take recourse to regular remedies available under the law for seeking compensation over and above the compensation granted under the public law remedy.
39. In the cause title of the petition, the age of the petitioner is shown as 26 years. In paragraph 1 of the petition it is disclosed that the petitioner has four daughters in the age group of 5 to 9 years. There is no reliable data available to determine what was the income of Janardan. Even if we take minimum income of Rs.3000/- per month, deducting 1/4 th for the personal expenditure of the deceased, the dependency can be fixed at Rs.27000/-. The age of the deceased must be in between 30 to 35 years. Adopting the test laid down under the Motor Vehicles Act, 1988, by applying multiplier of 16, the amount payable will be Rs.4,32,000/-. Some more amount will have to be added towards the mental pain and sufferings . Thus, the amount can be taken at Rs.4,50,000/-.
Bhangale 57/67 ::: Downloaded on - 09/06/2013 18:22:59 :::WP1795.11. f.sxw On the said amount, interest will be payable from 16 th June 2009 at the rate of 8% per annum till the date of payment.
We make it clear that this amount of Rs.4,50,000/- will be inclusive of the amount of Rs.1,00,000/- made payable to the petitioner under the Government order which is already referred to above. It is obvious that the amount of compensation with interest will be for the benefit of not only the petitioner but to her minor daughters. Therefore, we are directing the State Government to deposit the amount of compensation with interest in the Court of the District Judge at Ahmednagar. The District Judge, Ahmednagar, after hearing the petitioner and the State Government, will permit the petitioner to withdraw a reasonable amount for meeting the legal expenditure and other expenditure. The learned Principal District Judge will have to pass appropriate order regarding investment of the balance amount for protecting the interest of the minor girls. It is obvious that, notwithstanding this order, regular legal remedy of the petitioner and her daughters to seek compensation in addition to the compensation granted by this Court, will always remain available.
40. Now the another important aspect is regarding the nature of investigation carried out. We have perused all the Bhangale 58/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw investigation reports which are available on record. None of the officers who have submitted the reports have considered very important aspects. The first aspect is that, on 16 th June, 2009 and 17th June, 2009 at the first available opportunity, not only 2nd Respondent but also the 7 th Respondent clearly came out with the case that it was the deceased Janardan who attempted to commit suicide. In fact, said case is specifically noted in the order dated 17th June, 2009 passed by the Superintendent of Police, C.I.D., Pune, which is annexed to the affidavit of the Deputy Superintendent of Police, State C.I.D., Pune. The said version was changed later on by alleging that it was the driver of the truck involved who was negligent. The entry made by Respondent No.7 in station diary is that deceased Janardan tried to commit suicide.
None of the officers who have submitted the reports have considered this important aspect that the case of negligent driving on the part of the driver of the truck is clearly an after-
thought. Another important aspect is that, till the body was cremated, no report was lodged with the local police station.
In fact, in one of the enquiry report, fault has been found for not taking the body to Sassoon General Hospital and B.J.Medical College at Pune, for performing the postmortem.
Another important aspect is that, in the face of specific allegation made by the petitioner regarding repeated Bhangale 59/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw demands made on telephone by Respondent No.8, no one has made any effort to check the cell phone details of the petitioner and Respondent No.8. We have already pointed out that though a case was sought to be made out that permission of the Superintendent of Police was taken before the police party left Baramati Police Station and entered another district. However, the record shows that no such permission was taken and only a wireless message was sent by the 2nd Respondent. The police party proceeded outside the district by a private vehicle. It is not brought on record as to who paid the charges of the vehicle. Moreover, the deceased was never shown as arrested and there is no entry in the station diary that the deceased was taken by the police party for investigation. Therefore, FIR belatedly registered alleging the offence of rash and negligent driving against an unknown driver of the truck becomes doubtful.
41. The case of suicide made out in the station diary and in all earlier statements has been given up by the officers themselves. Considering the all the aforesaid aspects, a serious doubt is created in our mind as to whether the death of Janardan was accidental or homicidal. Importantly, it must be noted here that Janardan was in the custody of the police officers, and their own version of death of Janardan is totally Bhangale 60/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw inconsistent. When the police officers had picked up deceased Janardan in such a fashion and had taken him to another district, it is for the concerned police officers to explain the manner in which death of Janardan occurred. We have already pointed out that not even a report of the incident was lodged with the local police station till the body was cremated at Baramati. Therefore, we propose to direct the Director General of Police to appoint any officer of the grade of Additional Director General of Police who is superior in rank to the officers who have already held enquiry, to look into the entire matter in the context of what we have held in the judgment and to examine whether the death of Janardan is accidental or homicidal. The said officer, after holding necessary enquiry, will have to record his conclusions and if found necessary, he will have to direct the concerned police station to register F.I.R. Though we are disposing of the petition, we are directing that the petition shall be placed on board for reporting compliance. The report of the enquiry and action taken report will have to be submitted to this Court in a sealed envelope.
42. The Director General of Police will have to take a serious note of the manner in which the police officers have conducted themselves. As far as disciplinary proceedings are Bhangale 61/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw concerned, we are not making any adjudication as the same are pending. Notwithstanding the directions issued by the Apex Court, Janardan was taken in custody in totally illegal manner and was illegally taken outside the district. Not even elementary first aid was made available to deceased Janardan. We, therefore, expect that Director General of Police will issue comprehensive directions/guidelines to all concerned police stations in the State of Maharashtra to ensure that such incident is not repeated. He will have to also ensure that a direction is issued to all police officers to strictly abide by the directions contained in the decision of the Apex Court in the case of D.K.Basu (supra) and all other subsequent decisions. This is a second case brought to the notice of this Court within a span of one month where there is gross violation of directions contained in the case of D.K.Basu (supra). The other case is of the judgment delivered by this Court (A.S.Oka & A.V.Potdar, JJ.) on 5 th March, 2012 in Criminal Writ Petition No.1666 of 2010. We, therefore, direct the Director General of Police of State of Maharashtra to ensure that necessary directions are issued on the aforesaid aspects. We direct that the appropriate officer in the office of the Director General of Police shall place the said directions on record of this petition along with an affidavit.
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43. Before we part with the judgment, we must record that very impartial stand was taken by the learned A.P.P. in this petition and he has ably assisted the Court by pointing out true and correct facts.
44. We find from the perusal of the farad-sheet that this petition was placed before various Courts from time to time.
There are various orders passed by this Court. This is a fit case where the costs will have to be made payable by Respondent Nos.7 to 12 to the petitioner. The amount of costs is quantified at Rs.25,000/-. We may also clarify that the compensation awarded under the judgment and order will be payable by the State Government. However, it will be open for the State Government to recover the said compensation from the concerned officers who are found responsible for the lapses.
45. Hence, we pass the following order :-
(i) The Respondent No.1 State of Maharashtra shall pay compensation of Rs.4,50,000/- with interest thereon at the rate of 8% p.a. from 16 th June, 2009 till the date of deposit of the said amount in the District Court at Ahmednagar. The compensation shall be payable for Bhangale 63/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw the benefit of the petitioner and her minor children. The compensation amount will include compensation of Rs.1,00,000/- payable under the Government decision dated 6th March, 2012, which is placed on record of this petition.
(ii) The compensation amount with interest shall be deposited in the District Court at Ahmednagar within a period of two months from today. After the amount is deposited, the learned Principal District Judge, after hearing the petitioner and the District Government Pleader, shall allow the petitioner to withdraw a reasonable amount. As far as rest of the amount is concerned, the learned Principal District Judge will pass appropriate direction as regards investment of the said amount for appropriate period. He may consider of permitting withdrawal of part interest on the amount invested for the benefit of the petitioner and for the benefit of minor children. While passing the order of withdrawal/investment, the learned Principal District Judge will be guided by the principles governing the fatal accident cases under the Motor Vehicles Act, 1988.
(iii) We clarify that it will be open for the petitioner and her minor children to adopt a regular remedy for seeking compensation, if any, over and above the compensation granted by this Court. All the contentions of the parties in that behalf are kept open.
(iv) We direct the Director General of Police of State of Maharashtra to nominate an officer of the rank of the Bhangale 64/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw Additional Director General of Police to look into all the aspects of the case. The officer so nominated will go through the investigation papers, the reports of enquiry/investigation and the documents placed on record of this Court. The officer concerned will have to consider the entire matter in the context of the question whether the death of deceased Janardan was accidental or homicidal.
(v) The concerned officer shall conclude the enquiry as expeditiously as possible and in any event by 15 th June, 2012. If found necessary, the concerned officer shall issue necessary directions regarding registration of F.I.R. The report of the said officer including the action taken report, shall be filed on record of this Court in sealed envelope on or before 18th June, 2012.
(vi) In the light of the observations made by us in the earlier paragraphs, the Director General of Police shall issue necessary guidelines/directions which will bind all the police officials in the State, in the light of the directions issued by the Apex Court in the case of D.K.Basu v/s State of West Bengal (A.I.R. 1997 SC
610) (supra) and other relevant decisions of the Apex Court. The directions issued by the Director General of Police shall be placed on record along with an affidavit of the responsible officer posted in the office of the Director General of Police, on or before 18th June, 2012.
(vii) We make it very clear that we have made no adjudication on the pending disciplinary proceedings Bhangale 65/67 ::: Downloaded on - 09/06/2013 18:22:59 ::: WP1795.11. f.sxw against the concerned officers. We also make it very clear that this Court has not recorded any final finding on the question whether the death of Janardan was accidental or homicidal.
(viii) The case diary of C.R.No.99 of 2009, which was placed on record of this Court in sealed envelope, shall be re-sealed and the said envelope be handed over to the learned A.P.P by the learned Registrar (Judicial I) to enable the learned A.P.P to return the same to concerned police officer .
(ix) We direct Respondent Nos.2 and 7 to 12 to pay total amount of Rs.25,000/- by way of costs of this petition to the petitioner. The amount of costs shall be paid within a period of six weeks from today. The costs amount shall be either deposited in this Court or shall be paid by an Account Payee cheque drawn in the name of the petitioner. The cheque may be handed over to the Advocate for the petitioner.
46. The petition is partly allowed on above terms.
47. For reporting compliance, the petition shall be placed before this Court on 25th June, 2012 before the appropriate Bench.
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48. Parties and the Director General of Police to act upon an authenticated copy of this order.
(SHRIHARI P. DAVARE, J.) ( A. S. OKA, J. )
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