Bombay High Court
Leonard Xavier Valdaris & Ors vs Office-In-Charge & Ors on 19 December, 2019
Author: Sadhana S. Jadhav
Bench: B.P. Dharmadhikari, Sadhana S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2110 OF 2014
1 Leonard Xavier Valdaris
Age about 51 yrs. Residing at
1/15-16, B.P.T.Colony,
Pravin Nagar, Reay Road(W),
Mumbai.
2 Sufiyan Mohammad Khan,
age about 23 yrs. r/at Room No. 18,
5th floor, D Wing, Premiere
Apartments, Hirabai Compund,
Reay Road, Mumbai 400010.
3 Mohammad Irfan Hajam
age about 19 yrs., r/at Modi
Compound, Reay Road,
D Block, Coudapdev,
Mazgaon, Mumbai.
4 Arbaz Shamim Khan,
Age : 15 ½ yrs. Through
his mother Khushnuma Shamim
Khan, R/at. Room No. 17,
Pradhan Building, Reay Road,
Mumbai-400010. ...Petitioners.
Versus
1 Officer-in-charge,
Wadala Railway Police Station,
Mumbai.
2 State of Maharashtra
through Secretary, Home Department,
Mantralaya, M. Cama Road,
Mumbai- 400 032.
3 The Director, Central Bureau of
Investigation, Janna House,
Colaba, Mumbai.
Talwalkar
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4 Union of India
Copy to be served on the
Law and Judiciary Department,
Aykar Bhavan, Churchgate,
Mumbai- 400001. ...Respondents
Ms. Payoshi Roy i/b. Dr. Yug Mohit Chaudhary & Ajay Basutkar,
advocate for the Petitioner.
Mr. H.S. Venegaonkar, advocate for respondent Nos. 3 and 4.
Mrs. M.M. Deshmukh, APP for State.
CORAM : B.P. DHARMADHIKARI &
SMT. SADHANA S. JADHAV, JJ.
RESERVED ON NOVEMBER 21, 2019.
PRONOUNCED ON DECEMBER 19, 2019.
P.C. : (PER SMT. SADHANA S. JADHAV, J) 1 The Petitioner No. 1 herein happens to be an unfortunate father of one Agnello @ Richie, who died in the custody of Wadala Police Station and Petitioner Nos. 2 and 3 are the accused in C.R. No. 49 of 2014 registered at Wadala Police Station on 11/4/2014. The petitioners have prayed to this Court mainly to take stringent action against delinquent police officers, who are responsible for the custodial death of son of Petitioner No. 1 and the custodial sexual abuse and torture of petitioner Nos. 2 and 3.
2 Pursuant to the directions of this Court and directions Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 3 wp2110.14.doc of the Apex Court in the case of Arnesh Kumar vs. State of Bihar and anr. (2014) 8 SCC 273, this Court had passed several directions and called for the papers of investigation. On 24/2/2016 the Division Bench (presided over by the Hon'ble Shri Justice V.M. Kanade) was informed that CBI has filed a charge- sheet. However, the investigation as far as offences under the provisions of POCSO are concerned were in progress. 3 As on today we are informed that the charge-sheet has been filed for offence under section 118, 119, 166, 166A, 193, 195A, 199, 200, 201, 202, 203, 217, 220, 295(A), 324 of the Indian Penal Code and hence, it is prayed by the Petitioners to direct the respondents to file charge-sheet under section 302 read with section 34 of the Indian Penal Code and further pass an order that charges be framed against delinquent officers for offence punishable under section 302 of the Indian Penal Code. 4 Learned Counsel for the petitioner has drawn our attention to the factual matrix of the case which demonstrate the circumstances in which the petitioners are praying for addition of charge under section 302 read with section 34 of the Indian Penal Code. The factual matrix is as follows :
(i) On 11/4/2014 FIR was registered at Wadala Police Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 4 wp2110.14.doc Station by one Shriniwas Kisan Viramallu at about 1.35 a.m. alleging therein that on 10/4/2014 he was dropped at Wadala Railway station by his friend and he was to go home to Dockyard Road. At about 9.10 p.m. he had boarded a local going to CST station. 3 to 4 young unknown boys had taken seat in front of him. He had given description of the said boys.
Since he wanted to alight at Dockyard Road railway station, he had proceeded towards exit door. He was followed by the four boys. They had robbed him of his golden chain, finger ring, a watch and a cash of Rs. 1100/- by threatening him.
(iii) On the basis of his statement, Crime No. 49 of 2014 was registered at Wadala Railway Police Station against unknown persons for offence punishable under section 392 read with section 34 of the Indian Penal Code. The scribe of the said FIR was ASI V.M. Pathan.
(iv) In the midnight of 15/4/2014 and 16/4/2014 Wadala Police had arrested petitioner Nos. 2 and 3 and then had proceeded to the house of the petitioner No. 1. His son Agnello was not at home. He was staying with his grand-parents. The police had taken the petitioner No. 1 to the house of his parents and had searched the house. Son of the petitioner No. 1 i.e. Agnello @ Richi was taken into custody by the police and they Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 5 wp2110.14.doc had asked the petitioner No. 1 to meet them in the court on the next day. Petitioner No. 1 had exchanged cell phone numbers with the police whose name was Suryawanshi.
(v) On 16th April, 2014 brother of accused Suffian (petitioner No. 2) informed petitioner No. 1 that the police had told him that Petitioner No. 1 was ready to pay Rs. 2 Lakhs to the police and that other 3 accused would be dealt with. The Petitioner No. 1 denied the said allegations.
(vi) On 17th April, 2014 the petitioner No. 1 was called to the police station as ACP and DCP had been there. The petitioner No. 1 suspected that there is demand of illegal gratification. At about 4 p.m. petitioner No.1 had learnt that Agnello @ Richie was not produced before the court and therefore, he alongwith his friend Narayan Kutkuri proceeded to CST railway court and met the accused Sufian and Irfan in the lock up. He was informed that his son has been brutally assaulted and that he should not leave any stone unturned. He had seen injuries on Irfan's buttock and skin had peeled off. There were injuries on the persons of both accused. One accused was juvenile in conflict with law.
(vii) Petitioner No.1 immediately filed a complaint before Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 6 wp2110.14.doc Metropolitan Magistrate, 35th Court, CSMT Railway Court about non-production of his son. A copy was also sent to police commissioner by fax.
(viii) The Magistrate had directed the police to produce the accused before the Evening Court on the same day. The Court Clerk Polshette had accompanied Petitioner No. 1 to Wadala Railway Police Station. He was informed that his son has been taken to Sion Hospital and that he would be produced before Bhoiwada Court on the next day.
(ix) The Petitioner No. 1 went to Sion Hospital at about 8 p.m.. He saw that there was a bandage on the wrist of his son and he was unable to walk due to some injury and his son was crying out to him and informed him that the police would kill him, they are beating him continuously and would not take him to the court.
(x) On that day, the accused had informed the doctor that he sustained injuries at the hands of the police, who had brutally assaulted him. Thereafter, the police had pressurised and coerced petitioner No. 1 to change the statement or else his son would be in more trouble. His son had insisted upon him not to change the statement. But, desperate father in order to save Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 7 wp2110.14.doc his son had given a statement that the allegations are false. The doctor requested him to write the same on the case papers.
(xi) In the same night, petitioner No.1 had got phone call from Mane (Police), who asked him to go to police station to give statement saying that the injuries sustained by his son were self inflicted. However, he did not oblige, as his wife was not keeping well.
(xii) On 18th April, 2014 at about 11.30 a.m. petitioner No. 1 had been to the court alongwith Narayan to see his son but he was not produced. At about 12 p.m. he was called by GRP Mane who asked him to call after sometime. Thereafter, petitioner No. 1 was called to Sion Hospital, where he was shown dead body of his son in the mortuary. He was informed that his son had escaped from their custody, ran and jumped before a train and came under the train. He had seen a hole on the right side rib, upper body was blood stained. There were no clothes on his person and thereafter, the body was taken for post mortem examination to J.J. Hospital.
(xiii) On 18/4/2014 Crime No. 52 of 2014 was registered against Agnello (deceased) under section 224 of the Indian Penal Code reporting the incident at 11.20 a.m. and ADR No. 54 of Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 8 wp2110.14.doc 2014 was registered. Autopsy was conducted on the dead body of the deceased, on 8/4/2014 between 6.55 p.m. to 8 pm.
(xiv) On 18/4/2014 Irfan and Sufian were produced before the Court and the Court was informed that Agnello had jumped in front of a train. That despite applying brakes he had come below the wheels of the train and the doctor declared him dead at 11.55 a.m. In the interregnum petitioner No. 1 had made several errands to the office of Wadala Police Station, Commissioner of Police and all other authorities.
(xv) On 22/4/2014 Sufiyan Mohammad Khan (Petitioner No.
2) and Mohammad Irfan Hajam (Petitioner No. 3) were granted bail by the Magistrate and Arbaz Shamim Khan(Petitioner No. 4) who is juvenile in conflict with law was produced before the Juvenile Justice Board. On being released, they had informed Petitioner No. 1 about brutal attacks made on all four of them while in police custody. That they were sexually abused in such a demeaning way that they could not describe in any words. On 23/4/2014 Mohammad Irfan Hajam and Sufiyan Mohammad Khan were taken to BMCC Hospital. They had given history of assault by police.
(xvi) On 30th April, 2014 the petitioner No. 1 filed a Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 9 wp2110.14.doc complaint to all higher authorities of police regarding the custodial death of his son at the hands of Suryawanshi, Ravi Mane, Kamble, Satish and one more Mane.
(xvii) On 2nd May, 2014 Petitioner No. 1 was informed that the investigation is with CID. On 12 th May, 2014 Sufian had complained to the Commissioner of Police regarding third degree interrogation and sexual harassment in detection branch at Wadala Police Station. He had specifically disclosed that on 16th April, 2014 one old man was called to the police station to identify the accused and he could not identify any of them. (xviii) On 23rd May, 2014 statement of Arbaz was recorded at Children Home at Umerkhed. The Petitioners herein had also complained to department of Women and Child Development, Government of Maharashtra. Statements of all petitioners were recorded and they reiterated the allegations of torture and sexual abuse while in custody. On 26th May, 2014 department of Women and Child Department directed the Assistant Commissioner of Police, Railway Mankhurd Division regarding the statement of Arbaz recorded on 23rd May, 2014. 5 Learned Counsel for the Petitioners has drawn our attention to the post mortem notes which spells subarchnoid Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 10 wp2110.14.doc haemorrhage besides 40 other injuries on the person of the deceased with a bulging blood vessel that burst in the brain. 6 Reference to the post-mortem would be necessary at this stage taking into consideration the prayers of the petitioners. The deceased had incise wound, multiple abrasions, contusions. There was depositis of blackish greyish material placed over abraded area. Fracture of ribs on both sides. Injuries having bluish red colour are between 24 hours to 96 hours. The most important thing is that Rigor Mortis was noticed on the body which was well developed. In fact, it would take 6 hours to commence the stage of Rigour Mortis and it would take 3 hours to develop the same. In the present case at about 8 p.m. it was fully developed all over the body. Thirdly, the doctor has fixed age of injuries from 24 to 96 hours before death. The doctor has also opined that "immediate cause was evidence of hemorrhage and shock due to multiple injuries." The manner of causation is shown as sharp and pointed object. Grease abrasion, laceration are by rough and hard object and incise wound is by sharp object. 7 At this stage, it would be relevant to take note of the first scene of offence panchanama drawn on 19/4/2014 at about 5.25 p.m. It reads as follows that--
Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 11 wp2110.14.doc "Agnello was being taken to the hospital. When they were at platform No. 1, he gave jerk to the police constable holding him and ran towards a train which was coming from CST to Wadala. He was first struck by an overhead wire. He was flung by the wire and was thrown in front of the passing train and he came under the wheels of the local and railway track and he had fallen injured."
8 It is also mentioned in the panchanama that since he was dragged on the railway line, he had sustained bleeding injuries and had fallen between the tracks. They had taken charge of his clothes, which were torn into pieces with broken buttons. They had marked blood stains on the rubble between two tracks. They had seized footwear of the deceased, grease stained, torn blood stained shirt, four buttons of the shirts. It is further pertinent to note that the inquest panchanama was recorded on 18/4/2014 between 12.40 to 1.40 p.m. The said panchanama shows a hole on the chest and skin on the arms had peeled off. It is pertinent to note that panchas to the inquest panchanama are persons who were doing shoe polish at the railway station. It is pertinent to note that till recording of inquest panchanama, A.D. No. 54 of 2014 was not registered. Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 12 wp2110.14.doc 9 It needs to be noted at this stage that since it is a case of custodial death, inquest panchanama should have been held as contemplated under section 174(4) of the Code of Criminal Procedure, 1973 either by the District Magistrate or by the Sub- divisional Magistrate and/or any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate. In fact, the enquiry ought to have been conducted by Magistrate as contemplated under section 176 of the Code of Criminal Procedure, 1973. On a query made by this Court, the respondent-State as well as Learned Counsel Mr. Venegaonkar who represents CBI have admitted that in the present case, there was no enquiry by a Magistrate as contemplated under section 176 of the Code of Criminal Procedure, 1973 for reasons best known to the police authorities. 10 This Court had called for the station diary extracts of Wadala Police Station. It is pertinent to note that station diary dated 17/4/2014 shows that Agnello was arrested on 17/4/2014 at 3.45 p.m. The entry at 8.55 p.m. on 17/4/2014 shows that Agnello had hurt himself on his wrist in the lock up and was taken to hospital at 6.30 p.m. where he has alleged history of assault by police and that his father had denied the allegations. The entry on 18/4/2014 at 11.10 shows that when Agnello was Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 13 wp2110.14.doc being taken to Sion hospital, he had jumped before a train. He had to be removed from below the train. At 1.40 p.m FIR was registered against Agnello under section 224 of the Indian Penal Code. The station diary of Kurla Railway Police Station shows that on 18/4/2014 at 2 a.m. Wadala Railway Police Station had handed over custody of Adnello to Kurla Railway Police Station and at 7.30 a.m. he was taken into custody from Kurla Railway Police Station by Wadala Railway Police Station. 11 It is further pertinent to note that Kurla Railway Police Station lock up register shows an endorsement that PSI Shinde visited Kurla Police Station and checked that there was no accused in custody. At this stage, it is pertinent to note that there is no station diary entry which shows, as to what time deceased Adnello was brought out from the lock up by Wadala Police Station because when the deceased was removed from Wadala Police Station no reason is assigned as to why the accused was kept in Kurla Police Station at 2 a.m. 12 Learned Counsel for CBI has fairly submitted that the station diary entries at Wadala Railway Police Station have been manipulated from 16th to 18th April, 2014 and that is the reason why they have charged present respondents-accused (Police) for offence punishable under section 201 of the Indian Penal Code. Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 14 wp2110.14.doc The scene of offence panchanama drawn by CBI on instructions from eye witnesses shows that the deceased had fallen between two railway tracks on the rubble.
13 CBI has placed implicit reliance on the statement of one Mukund Kokane working on deputation at the Office of Assistant Commissioner of Police(Railway), Harbour lines located at Mankhurd Railway Station. He had been to Wadala Railway Police Station to collect official weapon. On 18/4/2014 at about 10.30 a.m. he had seen Agnello on cement bench. At about 11 a.m. when he was drinking water on the platform, he had also witnessed that two constables and Agnello were about to cross railway tracks between platform No. 1 and platform No. 2. They waited near track changer box, when they saw arrival of local train coming from CST. He heard police shouting and when he turned, he saw that the accused Agnello had suddenly started running towards an approaching train through the middle of the track and was being followed by Suresh Mane and Ravi Mane. He also followed them. The accused Agnello was then hit by a speeding train. The impact was such that the body spinned and fell under the wheel of the train and was dragged for a few feet. Half of the body was lying between the tracks. 14 The statement of Vijay Mahadik, Motorman was also Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 15 wp2110.14.doc recorded. According to him, when the train was about to reach Wadala Railway station, it was moving at about approximate 40 to 45 kms., he saw a person running towards the train through middle of the railway track followed by two other persons. He immediately followed the railway procedure by blowing the whistle continuously for warning the person. As he felt that the situation would go out of hand, he released the dead man's handle to stop the train. However, the person who was running in front came under the train. He informed about the incident to the train guard over intercom. He was asked by the railway police station to move reverse for facilitating removal of the person from the railway track. His statement was recorded on 1st July, 2014. Statement recorded on 21/1/2016 speaks about a person running towards the train and that he had come under the train. On 25/1/2017 Vijay Mahadik has stated that Agnello was first hit by train, resulting in his fall and coming under the screeching wheel of the train through cattle guard. 15 It is in these circumstances, that according to CBI the eye witnesses account of the incident indicates that Agnello had run towards the train. This story made by the police soonafter the incident which is reflected in the scene of offence panchanama would falsify the said story as is being putforth by the petitioner.
Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 16 wp2110.14.doc 16 It is in the above mentioned circumstances that the learned Counsel for the petitioners submits that it would be necessary to frame charge under section 302 of the Indian Penal Code.
17 Learned Counsel Mr. Venegaonkar for CBI has also submitted that CCTV footage of Wadala Railway Police Station from 16/4/2014 to 18/4/2014 are not made available by the police. There is no CCTV footage of Wadala Police Station either.
18 According to the learned Counsel for the petitioners in the facts and circumstances of the case, a charge needs to be framed under section 302 read with section 201 of the Indian Penal Code and the provisions of Prevention of Children from Sexual Offences Act as one of the accused who was sexually abused was juvenile in conflict with law. It is also submitted that the facts brought on record by both the agencies would lead to an inference that this is a case of custodial death which the investigating agency has made out to be a case of assault by police and charge-sheeted the accused for an offence under section 324, 118, 119, 166, 166A, 193, 195A, 199, 200, 201, 202, 203, 217, 220, 295(A), 324 of the Indian Penal Code. Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 17 wp2110.14.doc 19 The learned Counsel for the petitioner reiterates that the trial court be directed to frame additional charge under section 302 of the Indian Penal Code in view of the fact that the petitioner's son has died while in police custody and as on today, there is ample material to indicate that the accused have not offered any justifiable reasons for the same. 20 Learned APP appearing for the State of Maharashtra has submitted that the accused were subjected to departmental enquiry and their increments are withheld for a period of 3 years. It is also submitted that the accused are transferred from Bombay. Learned APP has also admitted that it is true that there was no enquiry conducted as per the provisions of section 176(A) of the Code of Criminal Procedure, 1973. 21 It is also admitted by the learned counsel appearing for respondent Nos. 3 and 4 that there is interpolation in the documents and that all the necessary station diaries were not produced before the respondent Nos. 3 and 4. Perusal of the record would show that the victim and his colleagues though were taken into custody in the mid-night of 14-15 April, 2014, the police have not followed the guidelines issued by the Hon'ble Apex Court in the case of D.K. Basu v/s. State of West Bengal Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 18 wp2110.14.doc reported in AIR 1997 SC 610.
22 Co-accused who are also victims of custodial torture were witnesses to the torture meted out to the deceased victim and they have narrated the same in their statements recorded by the police. The young boys were sexually abused by the police. They could not bear the same. Custodial violence may be either physical, emotional or mental. It leaves its permanent impact on the victim. In the present case, the victims were tortured by none other than protectors of law. Custodial deaths have been on the rise in the country. 23 In the facts of the case, the action of the police right from the inception is riddled with mystery. 24 In the present case, no reasons are assigned for the inconsistent scene of offence panchanamas. At the time of advancing submissions it was submitted by the prosecution that there were absolutely no blood stains on the dead body. The scene of offence panchanama speaks for itself. Shirt was blood- stained. There were blood-stains on the place were he had fallen. The scene of offfence panchanama also shows that at the outset the victim had first sustained electric shock. However, it does not show that the wires were hanging below and in the Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 19 wp2110.14.doc eventuality they were hanging there was no reason to cross the tracks, especially by the police.
25 Moreover, statements of so-called eye witnesses are also inconsistent. The petitioner No. 1, who happens to be the unfortunate father of the victim was not called to Wadala Railway Police Station, but was directly called to Sion Hospital. Interpolation made in the hospital records also speaks for itself. Father of the victim was made to write in the police record that his son had sustained self inflicted injuries. Doctor has categorically stated so. The witness has stated that the victim could not walk and therefore, there is no question of the victim running so fast that he could not be taken control of by the police in whose custody he was.
26 There is cloud of suspicion as to why the victim was kept in Kurla Railway Police Station. Upon a query made by this court it was stated that there is no police lock up in Sion. Moreover, the custody was handed over by Kurla Police Station at 7.30 a.m. to Wadala Railway Police. But there is no station diary entry in Wadala Police Station, which would show that he was taken to Wadala Police Station or the time when he was withdrawn from the said police station to be taken to the hospital or court. All this would prima facie indicate that the Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 20 wp2110.14.doc police have deliberately suppressed the sequence of events since they are guilty of their own deeds.
27 Torture when committed under the shield of uniform and authority in the four walls of the prison or police station or lock up not only makes the victim helpless, but brings slur on the concerned. And that is precisely the reason why judiciary will have to take note of all these aspects. It is only the judicial decisions, which have led to prison reforms in India so that every accused person is treated on humanitarian grounds and dignity of individual is upheld.
28 Today, the question before the court is not whether they would be convicted or acquitted of the charge under section 302 of the Indian Penal Code. However, at the same time, the Court cannot be oblivious of the fact that the son of the petitioner No. 1 died while in custody of the police, for which no justifiable reasons are assigned and reasons assigned by them are not only suspicious but shrouded with mystery. 29 Hon'ble Justice Vijender Jain, Chief Justice of Punjab and Haryana High Court while speaking on custodial death in Army Institute of Law, Mohali had observed as follows :
"The best way to prevent custodial death is to prevent Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 21 wp2110.14.doc custodial torture. The way to address one is to adddress both. How?
Custodial torture must be made a crime. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. Thirdly, the public and especially concerned professional groups, must closely monitor police practices to see that government promises are upheld."
30 The Law Commission of India in its report-273 tabled on October, 2017 has observed and opined as follows :
"that torture by a public servant or its implicit endorsement by the State have always been condemned by the Courts. Torture has been a contentious issue having a direct bearing on the right to life and liberty of an individual. The Commission is of the opinion that such heinous acts must be curbed through strong legislation providing stringent punishment, which will act as a deterrent."
31 In the case of CBI V/S. Kishore Singh reported in (2011) 6 SCC 369, the Hon'ble Apex Court has observed as Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 22 wp2110.14.doc follows :
"In our opinion, policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policemen to protect the people, and not break the law themselves. If the protector becomes the predator civilized society will cease to exist."
32 The Apex Court in the case of Raghubir Singh v/s. State of Haryana reported in AIR 1980 SC 1087 in a case where the violence employed by the police to extract a confession resulted in death of a person suspected of a theft, observed as follows :
"We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy when violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them"
Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 23 wp2110.14.doc 33 At this stage, it is submitted by the State that the accused was not in custody but had attempted to flee from the company of the police while in transit and therefore, an offence has been registered against the victim under section 224 of the Indian Penal Code which is registered as Crime No. 52 of 2014. Section 224 of the Indian Penal Code reads as follows :
"224. Resistance or obstruction by a person to his lawful apprehension.--Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation.--The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted."
34 The facts would indicate that the accused was taken into custody in the midnight of 15/4/2014 and 16/4/2014 and Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 24 wp2110.14.doc was not produced before any court within 24 hours. He was taken to hospital with brutal injuries where the police prima facie appear to have manipulated the hospital records. It was only after complaint by the father of the deceased was lodged, victim was produced before the court.
35 The term custody has not been defined in any Statute. Its dictionary meaning includes-
"Safe keeping, protection, charge, care, guardianship, confinement, imprisonment, durance of person, guardianship, the act or duty of guarding and preserving, control of a thing or person."
36 In the case of Niranjan Singh v/s. Prabhakar Rajaram Kharote, reported in AIR 1980 SC 785 the Hon'ble Apex Court has observed as follows :
"When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence, no lexical dexterity nor presidential profusion is needed to come to the realistic conclusion that he who is under the control of the Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 25 wp2110.14.doc court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law."
The meaning of the term 'custody" has to be understood with reference to the context in which it is used."
37 Above mentioned discussion would be sufficient to arrive at a prima facie conclusion that this is a case of custodial death. In addition, it would be necessary to direct the trial court also to frame charge under section 302 and 201 of the Indian Penal Code.
38 Also taking into consideration the statements of the co- accused which indicates that the accused persons had sexually abused the accused in custody by referring to their caste and Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 ::: 26 wp2110.14.doc their religious belief, charge under section 295A also needs to be framed.
39 Issue of framing of charge under section 302 of the Indian Penal Code was urgent and called for determination before the charges are framed. However, issue of compensation requires a detailed hearing and the same is kept pending to be decided at appropriate juncture.
(SMT. SADHANA S. JADHAV, J) (B.P. DHARMADHIKARI, J) Talwalkar ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 04:16:15 :::