Patna High Court
Sanjay Paswan vs The State Of Bihar Through Its Principal ... on 1 October, 2019
Equivalent citations: AIRONLINE 2019 PAT 1581
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.277 of 2017
======================================================
Sanjay Paswan S/o Upendra Paswan, Resident of village -
Maniyari, Teliya Pokhar, P.S. Sadar, P.O. Mabbi, District -
Darbhanga.
... ... Petitioner
Versus
1. The State of Bihar through Its Principal Secretary, Bihar,
Patna.
2. The Principal Secretary, Home Department, Bihar, Patna
3. The Senior Superintendent of Police, Sitamarhi.
4. The S.H.O., Pupri P.S., District Sitamarhi
5. The Director General of Police, Bihar, Patna.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Jagdish Prasad, Advocate
Mr.Virendra Kumar, Advocate
For the Respondents : Mr. Sanjay Kumar 'Ghosarvey' AC to AAG-3
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
Date : 01-10-2019
This writ application points out a case of
violation of fundamental right granted to a citizen of
India inter-alia under Article 21 of the Constitution of
India. It relates to the detention of the petitioner
(Khalasi) and the driver of a Pickup Van in the police
lockup without registering any F.I.R. seizure of the Van
without reporting to the jurisdictional Magistrate over
Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019
2/46
one year and the allegation is that the Station House
Officer of the concerned Police Station had brutally
assaulted the petitioner as well as the driver and kept
them confined for three days in police lockup.
2. This case reminds the National Police
Commission Report which has been noticed by Hon'ble
Apex Court in the case of Joginder Kumar vs. State
of U.P. reported in AIR 1994 SC 1349, paragraph
'13' of the said judgment is quoted hereunder for a
ready reference:-
"13. The National Police Commission in its
Third Report referring to the quality of
arrests by the Police in India mentioned
power of arrest as one of the chief sources
of corruption in the police. The report
suggested that, by and large, nearly 60% of
the arrests were either unnecessary or
unjustified and that such unjustified police
action accounted for 43.2% of the
expenditure of the jails. The said
Commission in its Third Report at page 31
observed thus:
"it is obvious that a major portion of the
arrests were connected with very minor
prosecutions and cannot, therefore, be
regarded as quite necessary from the point
of view of crime prevention. Continued
detention in jail of the persons so arrested
Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019
3/46
has also meant avoidable expenditure on
their maintenance. In the above period it
was estimated that 43.2 per cent of the
expenditure in the connected jails was over
such prisoners only who in the ultimate
analysis need not have been arrested at all."
3. The writ application was initially preferred
seeking the following reliefs:
"(i) For issuance of an appropriate writ
direction to respondent No. 1 to 3 for
taking action against S.H.O. Pupri, P.S. -
Sitamarhi and to punish him, which S.H.O.
snatched Rs. 40000/- from the petitioner,
and kept him and his Khalasi cum Driver in
custody and injured their heads by assault
and has kept his pick up van till now in his
custody, without institution of any F.I.R. on
01.01.2017. Even at till now there is no any F.I.R. against petitioner.
(ii) For issuance of an appropriate writ direction to release the pick up van of the petitioner without any condition or bail bond in favour of petitioner.
(iii) For issuance of an appropriate writ or direction against S.H.O. Pupri P.S. or State Govt. to pay heavy compensation to the petitioner.
(iv) For issuance of such writ/writs/direction/ directions for which your Lordship may deem fit and proper."
4. It is the case of the petitioner that on 01.01.2017 at about 6 A.M. while the petitioner along Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 4/46 with his driver Indrajit Das @ Jitu Khatwe had gone Sitamarhi to sell his Buffalo and both of them were returning in the night at about 8 P.M., the S.H.O. of Pupri P.S. Sitamarhi snatched all original documents of his pickup van bearing registration no. BR-9E-4301 and seized his pickup van without institution of F.I.R. No seizure was prepared. The S.H.O. Pupri took the petitioner and his driver in custody and assaulted them inflicting injuries on their bodies and heads. He also snatched Rs. 40,000/- from the petitioner which he was carrying by selling his Buffalo. On 04.01.2017, the elder brother of this petitioner filed a petition in the court of learned Sub-Divisional Judicial Magistrate, Pupri, Sitamarhi giving rise to Miscellaneous Case No. 01/2017. The contents of the information submitted to the learned Sub-Divisional Judicial Magistrate, Pupri, Sitamarhi are recorded as under:
" U;k;ky; esa] vuqeaMy U;kf;d n.Mkf/kdkjh iqijh] lhrke<+hA fofo/k okn la[;k&01@2017 larks"k dqekj firk misUnz ikloku lkfdu efu;kjh Fkkuk eoh Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 5/46 vks0ih0 lnj] ftyk njHkaxk------------------------------------------------------------vkosnd cuke~ iqijh Fkkuk/;{k -----------------------------------------------foi{kh Jheku~ ds lsok esa vkosnd ds rjQ ls vkosnu fuEu izdkj 1- ;g fd vkosnd dk HkkbZ lat; iloku tks fid vi Hkku oh0vkj0thjks0 9 bZ0 4301 dk [kyklh gS vkSj mDr xkM+h dk pkyd thrq [kros gS dks Fkkuk izHkkjh iqijh ds csotg fnukad 01- 01-2017 dks Fkkuk esa xkM+h lfgr idjdj j[ks gqvk gS vkSj mlls uktk;t ekax djrk gS rFkk ekjihV djrk gSA xkM+h idM+us oks [kyklh vkSj pkyd dks uktk;t fgjklr esa j[kus dk dksbZ dkj.k ugha crk jgk gS oks u xkM+h dks tIr djrk gS oks o pkyd vkSj [kyklh ds f[kykQ izkFkfedh ntZ djrk gSA ,slh fLFkfr esa pkyd [kyklh rFkk xkM+h dks uktk;t fgjklr es j[kuk vijk/k gSA blfy, eSa mDr xkM+h ds [kyklh ds HkkbZ gksus ds ukrs ;g vkosnu Jheku~ ds U;k;ky; esa nkf[ky dj jgk gw¡A vr% Jheku~ ls fuosnu gS fd iqijh Fkkuk/;{k ds f[kykQ eksdkt djrs gq, mDr rF;ksa dk fjiksVZ dh ekax dh tk, ftlds fy, eSsa Jheku~ dk lnk vkHkkjh jgw¡xkA ikFkhZ %& g0@& fnukad %& 04-1-17"
5. It is the case of the petitioner that after filing of the aforesaid petition, petitioner and the driver were released from police custody. They came to Darbhanga Medical College & Hospital for treatment. The registration tickets of the petitioner and driver Indrajeet are Annexure '2' to the writ application. It contains the history of the patient who alleged physical assault. There were pain and swelling on the buttock of the writ petitioner. He was prescribed some medicines and x-ray.
Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 6/46
6. On 06.01.2017, the petitioner claims to have submitted information in this regard through Fax to the Senior Superintendent of Police, Sitamarhi but no action was taken against that S.H.O. nor the pickup van was released. Annexure '3' is a representation said to have been filed by the petitioner.
7. After filing of the writ application when the matter was taken up for consideration, on 16.01.2018, this court called upon the Senior Superintendent of Police, Sitamarhi to file his personal affidavit stating clearly as to what action was taken pursuant to the representation submitted by the petitioner as back as on 06.01.2017. No explanation came. On the said date this court recorded the following prima-facie observations and directed issuance of notice to the then Officer-in- Charge of the Pupri Police Station through the office of the Senior Superintendent of Police, Sitamarhi because the name of the S.H.O. was not known to the petitioner. The relevant part of the order dated 16.01.2018 reads Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 7/46 as under:
In the facts of this case, the Senior Superintendent of Police /Superintendent of Police, Sitamarhi shall file his personal affidavit stating clearly as to what action has been taken pursuant to the representation submitted by the petitioner as back as on 06.01.2017. Prima facie it seems that it is a case of commission of serious atrocities by police and the allegations made in the writ application prima facie gives an impression to this Court that the then officer in-charge of Pupri police station has exceeded his jurisdiction.
Learned counsel for the petitioner submits that the petitioner is not aware of the name of the then officer in-
charge of Pupri police station, but he has made him party respondent in the case.
Let a notice be also served upon him at his present place of posting through the office of the Superintendent of Police, Sitamarhi calling upon him to file a formal affidavit in this matter. The affidavit of the then officer in-charge, Pupri as well as Senior Superintendent of Police/Superintendent of Police, Sitamarhi must be filed latest by 23rd January, 2018.
List this matter on 25th January, 2018 retaining its position.
Let a copy of this order be sent to the office of the Senior Superintendent of Police, Sitamarhi through fax."
Stand of present S.H.O. Pupri
8. Pursuant to the aforesaid order both the Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 8/46 Senior Superintendent of Police and the S.H.O. namely Awani Bhusan filed their counter affidavit. The S.H.O. submitted before this court that he had joined as S.H.O. Pupri Police Station on 22.02.2017 i.e. after the alleged date of occurrence. In his affidavit he has submitted that on perusal of the station diary entry he found that the vehicle was brought on police station on 03.01.2017 and was being kept there for verification about the owner of the vehicle. He deputed S.I. Rajkaran Thakur who went to the office of the D.T.O. Begusarai, enquired into the matter and submitted his report saying that the owner of the vehicle is one Md. Mustaq, son of Md. Abbas, resident of village - Murlichak, P.S. & District -
Sitamarhi. When the S.H.O. visited at the house of Md. Abbas and enquired about the latest position of the vehicle, he was informed that Md. Mustaq the registered owner had sold the vehicle some 8-9 years ago. When it was brought to his notice that the vehicle was released earlier by the court of learned C.J.M. Darbhanga on Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 9/46 02.07.2016 in favour of Md. Mustaq, the father of Md. Mustaq informed the S.H.O. that his son had neither went to the Darbhanga Court nor had filed any petition before any court in this regard. The S.H.O., therefore, took a prima-facie view that somebody had impersonated Md. Mustaq in the court of learned C.J.M. Darbhanga in the year 2016.
Regarding the allegations made against the police officer the same was denied but no basis thereof was mentioned in the affidavit save and except that " .. ... For lapses if any on the part of the deponents predecessor it may be humbly submitted that Superintendent of Police, Sitamarhi has called for an explanation from then S.H.O., S.I. Sri Vivek Kumar through S.P., Bettiah where his present posted vide memo no. 75/LC dated 20.03.2017." The S.H.O. submitted that the enquiry and verification of the owners is still Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 10/46 going on and lawful action shall be taken once enquiry is completed.
Stand of the then S.H.O., Pupri
9. The then S.H.O. namely Vivek Kumar Jaiswal has also filed a counter affidavit wherein he has repeated the facts with regard to the ownership of the vehicle and denied the allegations made against him that he had snatched Rs. 40,000/-. He also denied to have misbehaved or assaulted the writ petitioner and the driver. His stand is that the petitioner was not locked in custody rather he was brought to the police station for interrogation regarding the ownership of the vehicle in question and after verification he left from Pupri P.S. In this connection, he has referred the station diary entry no. 82 dated 03.01.2017 and 84 dated 04.01.2017.
10. The then S.H.O. has submitted in paragraph '7' of his counter affidavit that "...... .. It was reported by the reliable source that some persons has assembled at a place for which the officer in-charge sent Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 11/46 the Police Officer for enquiry and on demand of the paper Sanjay Paswan could not produce any paper at one hand he says that he is the owner and on the release order the name of the Mustaq has been given hence, it was difficult to release the vehicle and the vehicle in question is still lying in Pupri P.S. by adopting proper formalities in writing. The claim regarding snatching of Rs. 40,000/- (forty thousand) is purely false. If it was so then the writ petitioner ought to have filed a case against the respondent before the competent court of justice."
11. It is, therefore, apparent from a reading of the counter affidavit of the then S.H.O. that he had come to this court at the first instance with a simple case. It would appear from a reading of the aforesaid paragraph that the then S.H.O. had not disclosed the name of the person from whom he received information, he did not disclose the name of the Police Officer who was sent for enquiry and further he had made statement Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 12/46 that the vehicle in question was lying in the Pupri Police Station by adopting proper formalities in writing. [These assertions of the then S.H.O. will stand falsified whe examined in the light of further materials which have come on the record.] Initial stand of the Superintendent of Police
12. In the counter affidavit filed by the Superintendent of Police, Sitamarhi, he has mentioned about an enquiry report submitted by Deputy Superintendent of Police (HQ), Sitamarhi. The relevant paragraph of his counter affidavit are paragraph '5' and '7' which are reproduced hereunder for a ready reference:-
"5. That in pursuance of said direction, the Dy.S.P. (HQ), Sitamarhi submitted enquiry report vide Memo no. 211 dated 19.03.2017. In its report, it has been mentioned that on 03.01.2017 at about 23.50 hrs., the S.H.O., Pupri received information that few persons are roaming with a Pick-up Van in suspicious condition at Village - Ahiyapur under the Pupri Police Station jurisdiction. Upon receiving of such Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 13/46 information one Raj Karan Thakur, the Sub-Inspector of Police was directed to reach the place in question. The Police Officer reached the place and found that the local villagers were manhandling the two persons and there was a Pick-up Van bearing Registration no. BR9E04301 with them. Both the persons who disclosed their name as Sanjay Paswan and Indrajit Das with the Van was brought to the Police Station and corresponding entries are made in the Station Diary. On next day i.e. 04.01.2017, both were released on P.R. Bond. The Van in question was kept for further verification and enquiry. But no further enquiry or verification has been done for the said Van. Therefore, it was found that there was dereliction of duty on the part of the then S.H.O. of Pupri Police Station namely Vivek Kumar Jaiswal, the Sub-Inspector of Police. However, the report further states for detail and deep enquiry.
7. That it is further submitted that again the matter was enquired from the Sub- Divisional Police Officer, Pupri who submitted his report vide Memo No. 136 dated 19.01.2018 recommending therein for taking stern action against the then S.H.O., Pupri namely Vivek Kumar Jaiswal. Accordingly, the answering respondent issued letter requesting the Superintendent of Police, Bettiah under whose jurisdiction Vivek Kumar Jaiswal is posted for taking disciplinary action vide letter no. 17 dated 20.01.2018." (underline is mine) Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 14/46 Sanha Diary Entries
13. Before, I proceed to take into consideration the further facts, it would be appropriate to record the two entries, which were made in the Station Diary i.e. Entry No. 82 dated 03.01.2017 and 84 dated 04.01.2017 which are as under:
"tk¡p ds Øe esa Fkkuk nSfudh dk fnukad &01-01-2017 ls 04- 01-2017 dk voyksdu fd;k x;kA fnukad &03-01-2017 dks Fkkuk nSfudh la0 82@17 le; 23%50 cts dh izfof'V fuEuor gS& **bl le; eksckbZy ua0&8227820938 ls lwpuk feyh dh xzke ;kgh;kiqj esa lafnX/k voLFkk esa ,d fidvi Hkku ds lkFk rhu pkj O;fDr lqulku txg ij Bgjk gqvk gSA ftlls fdlh vugksuh dh "kadk O;Dr dh x;hA bl vk"k; dk lugk ntZ fd;kA rFkk blds lR;kiu ,oa vko";d dkjZokbZ esa jk=h x"rh esa fudys iq0v0u0 jktdj.k Bkdqj dks lR;kiu gsrq funsZf"kr d;kA** blh Øe esa Fkkuk nSfudh la0&84@17 fnukad &04-01-17 le; 04%15 cts dh izfo'V fuEuor gS& **iq0v0fu0 jktdj.k Bkdqj lkFk l"kL= cy o iqfyl okgu ls jk=h x"rh ckn Fkkuk okil vk;sA rFkk vius lkFk lat; ikloku] isa0&misUnz ikloku] xzke&cLrh efu;kjh rsfy;k iks[kj] Fkkuk&eCchZ vks0ih0] ftyk&njHkaxk ,oa bUnzthr nkl] is&uUVwunkl] lk0&lkseu "kkgiqj Fkkuk&eCch vks0ih0] ftyk & njHkaxk mia fudvu Gjjy jft0 ua0&BR-9E-4301 ] dks yk;s ftls vko";d Nkuchu gsrq fidvi Hkku dks Fkkuk ifjlj esa lqj{kkFkZ j[kk rFkk mDr nksuks O;fDr dks iqNrkN gsrw Fkkuk flfjfLrk esa j[kk x;kA tk¡p iM+rky ,oa lR;kiu ds mijkar vxzrj dkjZokbZ dh tk;sxhA "
change of stand
14. As this court proceeded to consider the matter, a supplementary counter affidavit was filed on Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 15/46 behalf of respondent no. 3. This court took note of the change of stand in the supplementary counter affidavit wherein a stand was taken in Memo no. 428 dated 15.02.2018 (i.e. after passing of the order by this court on 05.02.2018) that the local persons had assaulted Sanjay Paswan and Indrajit Das supposing them as thieves. This court passed the following order on 26.02.2018 which are reproduced hereunder:
"In view of the stand taken in the supplementary counter affidavit filed on behalf of the respondent no.3, let a fresh affidavit be filed on behalf of the respondent no.3 in terms of the previous order dated 05.02.2018 wherein this Court has pointed out that there is no statement in the counter affidavit earlier filed on behalf of the respondent no.3 as to whether the allegation of snatching Rs.40,000/- and causing injury to the petitioner by the then S.H.O. has been even preliminarily investigated. A perusal of the supplementary counter affidavit once again shows that the case has not been investigated even though at this stage in memo no.428 dated 15.02.2018 the S.D.P.O. has stated that it has come in the light that local persons had assaulted Sanjay Paswan and Indrajit Das supposing them as thieves and further that statement of snatching of Rs.40,000/- has not been confirmed in course of enquiry. The Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 16/46 S.D.P.O., Pupri, Sitamarhi has not at all stated that as to how he gathered this information and if local persons had assaulted Sanjay Paswan and Indrajit Das which had caused injury as has come in the report of the S.D.P.O. then who are those local persons and in what circumstances despite there being injury on the body of Sanjay Paswan and Indrajit Das the then S.H.O. did not lodge any FIR and did not send the injured to the concerned Civil Surgeon for any injury report.
These aspects in view of Annexure-1 and 2 of the writ petition have become relevant because at this stage only by vaguely stating that in course of enquiry it has come to light that local persons had assaulted Sanjay Paswan and Indrajit Das the allegation by this petitioner that he was assaulted and injury was caused by then S.H.O. cannot be rejected outrightly.
Let the affidavit be filed within two weeks on all these aspects and the Station Diary where entry was made on 04.01.2017 be also produced before this Court. Since the petitioner is raising an issue of violation of his constitutional rights in the hand of the then S.H.O., it is expected that the respondent no.3 will look into Annexure-1 and 2 and file an affidavit on the basis of the independent and impartial materials and shall bring the truth before this Court. List this matter after two weeks."
15. In order to concentrate on the main issue arising in the present case, this court is not going into Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 17/46 the subsequent developments whereunder at one stage it was alleged by the petitioner that the driver is being threatened by the Police Officer and he is being pressurized to persuade the petitioner to withdraw the present writ application. This court vide it's order dated 29.08.2018 directed that since this matter/complaint have already been brought to the notice of the Director General of Police, Bihar, Patna the same is being brought on the record.
Complete Shift of Stand noticed
16. Taking note of the complete shift of stand subsequently by the Police Authorities - respondents this court in it's order dated 12.09.2018 passed the following order: -
"The facts and circumstances under which the present writ application was filed and thereafter what has transpired pursuant to the various order passed by this court on earlier occasion are quite disturbing. This court is prima-facie of the view that instead of submitting a fair enquiry report, now in the name of an enquiry, efforts are being taken to protect the police officers who have been prima-facie involved in Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 18/46 committing certain acts and omissions for which they are required to be proceeded against.
A supplementary counter affidavit has been filed on behalf of the Senior Superintendent of Police, Sitamarhi but he seems to have acted as a post-office and has simply forwarded the so-called enquiry report prepared by a team constituted by him. If he would have taken care to go through the enquiry report and find out the discrepancies in the report by taking into consideration the documents which are available on the record, this court is sure that he could have easily identified the loop-holes and contradictions which are in the nature of an efforts being taken to protect the police officers who are prima- facie involved in commission of the acts and omissions. For example, this court would only indicate that if the information recorded in the station diary and the affidavit filed by the S.H.O. Pupri on earlier occasion are taken together as the first available document on record it may be easily found that when the petitioner and one more with him were brought to the police station, they were brought as a suspicious person, there is no entry that they were brought in injured condition to the police station. There is no statement in the affidavit of the S.H.O. also that the petitioner was brought to the police station after he had received beatings and had been injured in assault by the five persons now being named in a First Information Report lodged during pendency of this writ application.
Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 19/46 The enquiry report at one place mentions that the S.H.O. had received a phone call from a Mukhiya that some persons were beating the petitioner and thereafter the S.H.O. had instructed one Raj Karan Thakur, a Sub-Inspector of Police, to go there, however in the same enquiry report it is also mentioned that when the matter was enquired into from the Mukhiya then he informed the enquiry officers that when he made a phone call to the S.H.O., the S.H.O. told him that the Sub-Inspector, Raj Karan Thakur had already proceeded to the place of occurrence. These two kind of facts noted in the same enquiry report and further that the strong circumstance showing that the petitioner was not brought in the police station in injured condition are the reasons why this court is of prima-facie view at this stage that the enquiry report is nothing but an attempt to protect the fellow police officers. If this is the situation and the Senior Superintendent of Police, Sitamarhi will not take an independent view of the matter by going into the details taking into consideration some scientific kind of discoveries on the basis of location of the mobile phone etc., this court will have no option but to refer the entire matter to an independent Investigating Agency, may be the Central Bureau of Investigation, to find out the correct position.
In a hurry F.I.R. has been lodged against five persons. It is for the Senior Superintendent of Police, Sitamarhi again to ensure that when the matter is still being enquired into at their end and this Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 20/46 court is looking into that matter they should have brought these facts to the notice of this court first, however even at this stage he will ensure that no person named therein should suffer because of the lodging of the F.I.R., because the manner in which it has been lodged is still required to be satisfied by this court.
The enquiry report enclosed with the affidavit of the Senior Superintendent of Police, Sitamarhi is hereby rejected. The Senior Superintendent of Police, Sitamarhi shall constitute a fresh enquiry team of which he will be the head and shall go through the entire records, take review of the matter, call for the necessary information and submit a fresh report with regard to the whole occurrence. It should be kept in mind that now petitioner has come out with a complaint addressed to the Director General of Police, Bihar that he is being pressurized by the police officers to withdraw the present case pending in this court. This should be an additional matter to be looked into and be enquired into by him.
Let a report in this regard be submitted in this court on 26th September, 2018 when the matter will be listed under the same heading."
17. After the aforesaid order was passed a third supplementary counter affidavit came to be filed on behalf of respondent no. 1 to 6 sworn by the Dy.S.P. Headquarter, Sitamarhi. In the supplementary counter Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 21/46 affidavit the respondent authorities denied the allegation that the pairvikar of the petitioner is being harassed and one Naiyar Imam who was doing pairvy of the case of the petitioner has been wrongly arrested. Let it be recorded that this court could not go into the issue of the arrest of said Naiyar Imam and that would be a different matter to be considered in an appropriate application.
Seizure of vehicle-FIR registered after more than one year
18. It is important to note that in connection with the seizure of the vehicle in question which was brought to the Police Station on 04.01.2017 one F.I.R. giving rise to Pupri P.S. Case no. 54/2018 under Section 414 I.P.C. has been registered on 17.02.2018. In this case this petitioner and his driver have been made accused. This has been done while this court is in seisin of the matter.
F.I.R. lodged after more than one year for alleged assault on the petitioner
19. Another case has been lodged giving rise Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 22/46 to Pupri P.S. Case No. 87/2018 on 11.03.2018 under Section 147/341/323/342 of the I.P.C. against five persons namely Md. Irshad, Chote Ansari, Sabir Ahmad, Md. Nirale and Md. Ashraf, they have been made accused alleging that they had been involved in causing assault to the petitioner and driver on 03.01.2017. The story which has been set out at a much belated stage almost after one year one month by the respondents is that on 03.01.2017, during night hours, at about 23:26 hrs. one Mahfooz Alam @ Nanhe the then Mukhiya of Pawapur south Panchayat gave a telephonic call to the then S.H.O. and informed that there are some persons in Ahiyapur Tola School premises with a Pickup Van and the local persons were assaulting them taking as if they are the animal thieves. On this information the S.H.O. had given a mobile call to the Sub-Inspector of Police, Raj Karan Thakur on his mobile who reached on the spot and found that some villagers were assaulting the petitioner and driver. Even after reaching of the S.I., Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 23/46 people were trying to assault the petitioner and driver but after intervention of Mukhiya, Sarpanch and Police Officer no further assault took place. Both the persons i.e. the petitioner and driver Indrajeet were brought to the Police Station with the Pickup Van on 04.01.2017 at 4:15 hrs. and after verification they were allowed to go on 04.01.2017 at 16:30 hrs. on personal bonds. The present S.H.O. in his first affidavit has stated that the vehicle was brought in the police station on 03.01.2017.
Fresh Report dated 22.09.2018
20. The subsequent report dated 22.09.2018 copy of which is enclosed with the second supplementary counter affidavit dated 24.09.2018 filed on behalf of respondent no. 3 shows that as regards the ownership of the vehicle in question when Md. Mustafa was contacted on his mobile, he connected the Investigating Officer to his lawyer and his lawyer told the Investigating Officer that his client had sold the vehicle to one Govind Sahni. This court finds that the report stopped here. There is no Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 24/46 further stipulation that any attempt was made to enquire the matter from said Govind Sahni. In the concluding part of the report dated 22.09.2018, the then Sub- Inspector of Police has been found negligent and dereliction in his duty has been noticed in the following terms:-
"fnukad&04-01-17 dks mDr nksuksa O;fDr;ksa dks Fkkuk ij yk, tkus ds mijkar muds lkFk ?kfVr ekjihV dh ?kVuk dk mYys[k Fkkuk nSfudh esa ugha fd;k x;k FkkA bu nksuksa O;fDr;ksa dk t[e izfrosnu fuxZr dj muds lkFk ekjihV djus okys O;fDr;ksa ds fo:) dkaM ntZ dj vuqla/kku izkjaHk djuk Fkk] tks ugha fd;k x;k] lkFk gh Fkkuk esa yk;s x;s fidvi Hkku la0&BR9E-4301 dh tIrh lwph Hkh rS;kj ugha dh xbZ tks Fkkuk/;{k iq0v0fu0 foosd dqekj tk;loky ds }kjk cjrh xbZ ykijokgh ,oa dÙkZO;ghurk dk ?kksrd gSa blds fy, rFdkyhu Fkkuk/;{k iq0v0fu0 foosd dqekj t;loky ds fo:) foHkkxh; dk;Zokgh la0&12@18 izkjaHk dh x;h gSA"
Submission of the petitioner
21. In the aforementioned background of the facts and circumstances, learned counsel for the petitioner submits that few facts are now not in dispute. As per the S.H.O. Pupri, the petitioner was brought to the Police Station on 03.01.2018, though the petitioner claims that he along with the driver was brought to the Police Station while returning on 8.00 P.M. on 01.01.2017. It is not in dispute that when the petitioner Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 25/46 and the driver were brought to the police station, there was no recording in the station diary that they were brought to the police station in injured condition. It is pointed out that in complete contrast to the earlier stand of the then S.H.O. that Pickup Van alongwith the petitioner and driver were brought to the police station for the purpose of verification of the ownership of the vehicle, when the respondents found it difficult to justify their action on the face of there being injury reports of the Darbhang Medical College & Hospital, in order to escape their responsibility and liability they came out with a story that these petitioners were assaulted by the villagers in the school situated in the aforesaid Panchayat. Armed with power to lodge an F.I.R. they acted in haste during pendency of the writ by lodging of the F.I.R. against some of the villagers more than one year and two months after the alleged occurrence giving rise to Pupri P.S. Case No. 84 of 2018. This, according to the petitioner, is nothing but an attempt to save the Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 26/46 S.H.O. namely Sri Vivek Kumar Jaiswal.
Some unexplained Facts.
22. Referring to the station diary entry, learned counsel submits that according to the station diary entry of 04.01.2017 at 4:15 hrs. the petitioner and the driver were brought to the police station by the S.I. Raj Karan Thakur for purpose of verification of the Pickup Van, there is no whisper of either the information received from the then S.H.O. over mobile phone during night hours, there is no whisper that these persons were brought to the police station from the school premises where they were being assaulted by the villagers, there is no whisper of there being any kind of injury on their body, therefore, according to the petitioner, the subsequent stand taken by the S.H.O., Pupri and the other officers who have prepared the report are required to be thoroughly investigated by an independent agency.
23. Learned counsel has submitted that he had made a representation to the Superintendent of Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 27/46 Police, Sitamarhi, copy of which is enclosed as Annexure '3' to the writ application, that should have been registered as an F.I.R. for purpose of investigation but no action was taken thereon and the petitioner's version of the entire occurrence has been suppressed by the police authorities without there being a formal F.I.R. and investigation.
24. It is submitted that a bare perusal of Annexure '3' to the writ application would show that it discloses commission of serious atrocities by the police officer when the petitioner and his driver were in his custody in the police station. The petitioner had enclosed the injury reports as well. Learned counsel submits this court being a constitutional court under Article 226 of the Constitution of India may take cognizance of this serious lapse on the part of the police authorities in not registering the information furnished by the petitioner as an F.I.R. for the purpose of investigation. Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 28/46 F.I.R. alleging theft against the petitioner and driver and the F.I.R. alleging assault by villagers on the petitioner and the driver after more than one year - a malafide prosecution and abuse of the process of Court.
25. Learned counsel has further submitted that the F.I.R. lodged against the petitioner under Section 414 I.P.C. is only an abuse of the process of court and a totally malafide attempt on the part of the police authorities inasmuch as it will appear that the petitioner has brought on record the copy of agreement between Md. Mustaq and Govind Sahni to whom the vehicle had been sold. Md. Mustaq has admitted that he had got the vehicle released in the year 2016, therefore the story creating suspicious as to ownership of the Van and the allegation of impersonation of Md. Mustaq are also self made story of the S.H.O. without there being any basis thereof. Further, it would appear that neither in his representation nor in the writ application the petitioner has claimed that he is the registered owner of the vehicle. In his representation (Annexure '3') he had Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 29/46 disclosed the name of the owner of the Pickup Van namely Govind Sahni as back as on 06.01.2017 and had also disclosed that the family of said Govind Sahni had lodged two cases against the predecessor Officer-in- Charge, P.S. Sadar, O.P. - Maabi, District - Darbhanga, therefore the Officer-in-Charge of the Police Station was openly threatening them that they will be implicated in false cases if they do not take back the cases against the predecessor Officer-in-Charge, Sadar, Maabi. He also disclosed that the vehicle was recently released. It is thus submitted that this case requires investigation from all the aforesaid points of views but instead of doing that, more than one year after the seizure of the vehicle and unlawful detention of the petitioner and the driver Indrajeet Das in the police lock-up at this stage after more than year year one F.I.R. under Section 414 I.P.C. has been lodged against the petitioner and the driver and another F.I.R. have been lodged against the villagers to make out a story that the petitioner and the Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 30/46 driver had suffered injuries prior to being brought to the police station.
Submission on behalf of the State
26. Learned counsel for the State has submitted before this court that the petitioners had been injured in the assault made by the villagers who had caught them taking them as cattle thieves.
Consideration
27. Before this court proceeds to record it's views, the court would take note of the contents of the first ever explanation of the alleged occurrence recorded by the then S.H.O. Vivek Kumar Jaiswal in his report dated 24.03.2017 in connection with Cr.W.J.C. No. 325/2017 which is as under:
" lsok esa] Jheku iqfyl v/kh{kd egksn;
lhrke<+h }kjk &iqfyl v/kh{kd egksn;
i0 p0 csfr;k izlax&Cr. W.J.C 325/2017 lqcks/kh nsoh cuke fcgkj ljdkj fn0 09-03-17 dks ikfjr vkns"k ds lEca/k esa iqfyl mik0 ¼eq0½ lhrke<+h dk Kkikad 211@mik0 fn0 19-03-17 ,oa iqfyl v/kh{kd egksn; lhrke<+h ds dk;kZy; dk Kkikad 75@fo0dks0 fnukad 20-03-17 ,oa iqfyl v/kh{kd egksn; i0p0 csfr;k ds dk;kZy; dk Kkikad 53@fo0"kk0 fn0 23- Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 31/46 03-2017 fo'k; %&Li'Vhdju izfrosnu egk"k;] izlaxk/khu fo'k; ds lEca/k esa lknj lwfpr djuk gS fd fn0 03-01-17 dks jk=h le; 23%50 cts iqijh Fkkuk ds ljdkjh u0 9431822374 ij eks0 u0 8227820937 esa lwpuk fefy dh xzke ;kgh;kiqj esa lafnX/k voLFkk esa ihd vki Hkku ds lkFk rhu pkj O;fDr ,d lkFk txg ij Bgjk gqvk gSA ftlls fdlh vugksuh dh vk"kadk O;Dr dh xbZA bl vk"kk; dk lukg nTkZ fd;k rFkk lR;kiu ,oa vko";d dk;ZokbZ esa jkf= xfLr esa izfrfu;qDr ink0iq0v0fu0 jkt dj.k Bkdqj dks lwfpr fd;k A fn0 04-01-17 dks 4%15 cts iq0v0fu0 jktdju Bkdqj lkFk l"k= cy ds iqfyl ft;k ls Fkkuk okil vk;s rFkk vkius lkFk ¼1½ lat; ikloku is0 misUnz ikloku lk0 cLrh efu;kjh rsfy;k iks[kj Fkkuk eCch ,oa ¼2½ bUnzthr nkl is0 panu nkl la0 "kksHku "kkywvk Fkkuk eCch nksuks ft0 njHkaxk ,oa ,d ihd vi Hkku jft0 u0 BR09E 4301 dks yk;sA vko";d Nkuchu gsrq mDr ihd vi Hkku dks Fkkuk ifjlkj esa lwj{kkFkZ j[kk xk;k rFkk mDr nksuksa O;fDr dks iqNrk{k gsrq Fkkuk flfjLrk esa j[kk x;kA bl lEca/k esa iq0v0fu0 jktdj.k Bkdqj ds } kjk crk;k x;k fd nksuksa O;fDr ckgjh ftyk dk jgus okyk gw¡ rFkk jkf= ds le; ihd vi Hkku ds ikl ;gh nksuksa [kM+k Fkk ftlds ikl xkM+h ls lEcfU/kr dksbZ dkxtkr ugha Fkk blfy, nksukas O;fDr dks vko";d lR;kiu c iwNrk{k gsrq rFkk ihd&vi Hkku dks dh lqj{kkFkZ Fkkuk yk;k x;k gSA bl lEca/k esa iqijh Fkkuk lugk la0 84@17 fn0 04-01-17 dh ntZ gSA mYys[kuh; gS dh ¼1½ lat; ikloku ,oa ¼2½ bUnzthr nkl ds lEca/k esa Fkkuk vfHkys[k dk voyksdu rFkk LFkkuh; eCch vks0ih0ls lEidZ dk tkudkjh yh xbZ rks nksuks ds fo:) fdlh izdkj dh f"kdk;r ugha fefy] ihd vi Hkku u0 BR 09E 4301 ds lEca/k esa mDr nksuksa ds }kjk fdlh izdkj dk LokfeRo lEca/kh dkxtkr izLrqr ugha fd;k x;k vkSj u gh fdlh izdkj dh nkos nkjh crkbZ xbZ rr~i"pkr lgh ikrs gq, ¼1½ lat; ikloku ,oa ¼2½ bUnzthr nkl dks fuft eqpydk ij eqDr dj fn;k x;kA rFkk ihd vi Hkku dks vko";d Nkuchu ,oa LokfeRo ds lEca/k esa lR;kiu gsrq Fkkuk esa j[kk x;kA bl lEca/k esa la0 99@17 fn 04-01-17 ntZ gSA mYys[kuh; gS fd Fkkuk ifjlj esa lqj{kkFkZ j[ks x;s ihd vi Hkku u0 BR 09E 4301 ds lEcU/k esa ft0 ifjogu dk;kZy; csxqljk; ls lEidZ dk irk fd;k x;k rks Kkr gqvk fd mDr okgu eks0 eqLrQk is0 eks0 vCckl lk0 eqjfy;kpd Fkkuk ft0 lhrke<+h ds uke ls gSA bl lEca/k esa eqLrQk ls lEidZ djus dk iz;kl fd;k x;k rks muds ifjtuksa ds }kjk crk;k x;k fd mDr okgu dks 8&9 o'kZ iwoZ esa gh csp fn;k x;k gS fdldks csps gS ;kn ughs gS mlds ckn fof/k O;oLFkk fM;wVh] ljLorh iwtk] baVj ijh{kk esa O;Lr jgsA blh chp esjk LFkkukUrj.k lhrke<+h ftyk cy ls csfr;k ¼i0p0½ ftyk cy esa gks x;kA bl chp fdlh dh O;fDr ds }kjk mDr ihd vi ds Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 32/46 lEcU/k esa dksbZ nkosnkjh izLrqr ugha dh xbZA esjs }kjk tkucq>dj fdlh izdkj dh f"kfFkyrk ykijokgh ,oa drZO; ds izfr mnklhurk dk ijhp; ugha fn;k x;k gS ;gh esjk Li'Vh dj.k gSA vr% Jheku ls vuqjks/k gS fd esjk Li'Vhdj.k Lohd`r djus dh d`ik dh tk;sA fo"oklHkktu g0@& foosd dqekj tk;loky 24-03-17 iq0v0fu0 ea>kSfy;k Fkkuk i0p0 csfr;k"
28. It is evident from a consistent reading of the station diary entries and from the first version of the then S.H.O. Vivek Kumar Jaiswal as on 24.03.2017 that there was no whisper of there being any alleged occurrence in the school premises of the Avanipur Panchayat. As on 24.03.2017 it was the stand of the then S.H.O. that only these two persons were standing near the Pick-up Van. There is also no whisper of any injury having been caused to the petitioner and the driver. It is important to note here that this writ application was presented before this court on 01.03.2017 and the first counter affidavit came to be filed on behalf of the S.H.O. Pupri on 23.03.2017. Till Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 33/46 this date the stand was consistent but as soon as this court passed the order on 16.01.2018, the stand of the respondent authorities started changing and shifting towards making out a totally different story. To explain the injuries, on the body of the petitioner and the driver on the face of there being the injury reports of the Darbhanga Medical College & Hospital prepared on 06.01.2017 itself, copies of which were sent by the petitioner to the Superintendent of Police on the same day with a request to look into the matter and investigate the same (Annexure '3' to the writ application), it has been now stated that the petitioner and the driver were being beaten by the villager in the school premises. There is sea-change in the stand of the police authorities after this court called upon them to answer the queries. Although the allegation of snatching of Rs. 40,000/- were flatly denied but then no enquiry was made from the petitioner's version and point of view stating that he had gone to sell his Buffalo that day and Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 34/46 had got Rs. 40,000/- from sale proceeds which were snatched by the then S.H.O. Pupri.
29. Had the complaint of the petitioner been duly registered and examined, the truth would have come on the record but the voice of a citizen of the country like the petitioner was perhaps not weighing on the mighty power of the police authorities to move them.
30. The court is of the opinion that this is the cognitive dissonance approach of the police authorities who in this case were so influenced by their own psychological belief that they found it uncomfortable to think over the petitioner's version of the story.
31. As a constitutional court having noticed these facts, this court cannot leave this issue because it has a serious consequence of interfering with the life and liberty of a citizen of the country without following the established procedure of law and has a direct nexus with the consideration of relief for grant of compensation. This court, therefore, directs the Superintendent of Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 35/46 Police, Sitamarhi to register the complaint as contained in Annexure '3' to the writ application, as First Information Report and investigate the matter from that angle as well. There may be two F.I.Rs. with respect to the occurrence from two different versions of the story. Reference in this regard may be made to the judgment of this court in the case of Ram Bihari Pandey and Ors. Vs. The State of Bihar & Ors. With Bimal Kumar Nopani Vs. State of Bihar & Ors. Reported in 2018(3) PLJR 125 = 2018(3) BLJ-PHC 273 which has relied upon the judgment of the Hon'ble Supreme Court in the case of P. Shreekumar Vs. State of Kerala reported in 2018(2) PLJR (SC) 293 = (2018) 4 SCC 579.
32. This court finds that the report dated 22.09.2018 is nothing but a mere re-production of the stand of the S.H.Os. and it is a clear attempt to save them by ignoring some otherwise disturbing features of this case which this court has taken note of hereinabove.
33. Since the allegation are against the police Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 36/46 officials i.e. the then S.H.O. Pupri for the reasons alleged in Annexure '3' to the writ application and this court finds huge inconsistency in the stand of the police authorities in the various documents which have come in existence since 03.01.2017 on the one hand and the reports and affidavits which have come on or after 06.01.2018 on the other hand, this court is of the considered view that in the interest of justice now the allegation of the petitioner as to the injuries caused to him in the police station and snatching of Rs. 40,000/- are required to be investigated by another Investigation Wing of the State Government. The F.I.R. alleging theft against the petitioner and the driver and another F.I.R lodged against the villagers are also arising out the same and one transaction which if not quashed by this court in accordance with law, may be properly investigated only when Annexure '3' to the writ application be also registering as F.I.R. and the version of the petitioner be also investigated by the same agency. The DGP, Bihar Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 37/46 shall, therefore, consider referring all these matters to the Crime Investigation Department for appropriate and independent investigation in all the F.I.Rs. connected to the present case which must be completed within three months.
34. In ultimate result, if it is found that the petitioner and driver were in fact brought to the police station on 01.01.2017 and/or the injuries of the petitioner and the driver were caused inside the Police Station in the manner alleged by the petitioner and/or Rs. 40,000/- was snatched from the petitioner by the then S.H.O., Pupri it will be open for the petitioner and the driver both to seek compensation for the same in accordance with law in an appropriate application. To that extent this court is not exercising it's discretion to award compensation for the present.
35. This court would however considering compensation to the petitioner and the driver for their admitted confinement in police Lockup from 03.01.2017 Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 38/46 night hours to 04.01.2017 till 6.30 P.M. The Court will also consider awarding compensation for keeping the Van seized for over one year without reporting to the Jurisdictional Magistrate.
36. There is a categorical finding with respect to unlawful seizure of the Van and that the then S.H.O. is guilty of acting negligently and has committed dereliction in duty. The vehicle in question was brought to the Police Station according to him on 03.01.2017 (night hours) but the same remained confined inside the Police Station for more about than one year before lodging a formal F.I.R. showing seizure of the vehicle. It is own stand of the S.H.O. that during telephonic talk the registered owner of the vehicle Md. Mustafa had informed him that he had sold the vehicle to one Govind Sahni whose complete address were provided by the petitioner in Annexure '3'. The copy of agreement between Md. Mustafa and Govind Sahni had been brought on record. Section 2(30) of the Motor Vehicle Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 39/46 Act, 1988 defines "owner" means "2(30). "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;
37. Once it was brought to the notice of S.H.O. that the Registered owner had under agreement sold the vehicle to Govind Sahni the S.H.O. was required to verify the same from Govind Sahni but then nothing was done. The vehicle of kept in Police Station and allowed it to lose it's road worthiness. Apart from this the petitioner and the driver lost their livelihood.
38. In the case of Umesh Prasad Vs. State of Bihar reported in 1995(2) PLJR 769 a learned coordinate Bench of this court was considering a case where a Police Officer of Athmalgola Police Station had seized a Tempo but no seizure list thereof was submitted to the court for a considerable period of about eight months. This court referred Rule 25 of the Police Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 40/46 Manual, held that the Police Officer had acted beyond the authority of law directed payment of compensation of Rs. 20,000/- and the erring officer was held liable to pay the same failing which the State had to pay the same and recover it from erring officer. Rule 25 of the Police Manual reads as under:-
"Police Officers to take charge of unclaimed property, and be subject to Magistrate's orders as to disposal. - it shall be the duty of every Police Officer to take charge of all unclaimed property, and to furnish an inventory thereof to the Magistrate of the district."
The police officers shall be guided as to the disposal of such property by such orders as they shall receive from the Magistrate of the district."
39. To this court, in the facts of the present case the show-cause of the present S.H.O. who joined Pupri Police Station on 22.02.2017 and the show cause of Sri Vivek Kumar Jaiswal the then S.H.O. Pupri who had seized and kept the vehicle in the Police Station are not acceptable.
40. For not reporting the seizure of vehicle from the petitioner and the driver to the jurisdictional Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 41/46 Magistrate over one year both the present and past S.H.Os. are jointly liable to pay a compensation of Rs. 50,000/- to the petitioner. in the year 1995 for the illegal seizure of Tempo this court had granted Rs. 20,000/- as compensation. Taking into consideration that now after 25 years approx. this court is considering this case, a sum of Rs. 50,000/- is at least required to be awarded.
41. Further this court finds that the fact even as per police version that this petitioner and the driver both were brought to police station and for the whole night on 03.01.2017 and the following day up to 6.30 P.M. they were kept in the police station without registering any F.I.R. and then they were allowed to leave the police station in evening on P.R. Bond after his brother filed a Misc. Petition before learned C.J.M. would compel this court to take a view that it is a clear case of deprivation of fundamental rights of the petitioner and the driver. Article 21 of the Constitution of India has Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 42/46 been brazenly violated by non-else than the then S.H.O. Pupri. In the case of Sube Singh Vs. State of Harayana reported in AIR 2006 SC 1117, the Hon'ble Supreme Court has held as follows: -
"Award of compensation as a public laws remedy for violation of the fundamental rights enshrined under Article 21 of the Constitution in addition to the private law remedy under law of Torts, was evolved in the last two and half decades."
42. In the case of Prem Chand Vs. Union of India reported in AIR 1981 SC 613, Hon'ble Apex Court observed thus:
"In justice, justices and justicing and likewise in the police and policing, the Peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept captive by the Police, to be pressed into service by proving "cases". Courts, trusting the Police may act on apparently veracious testimony and sentence people into prison. The community, satisfied with such convictions, may well believe that all is well with law and order. we condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons. we hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings-on at the lesser levels will immediately take measures to stamp out this unscrupulous menace."
Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 43/46
43. In Bhgalpur Blinding case, [Khatri (II) Vs. State of Bihar (1981) 2 S.C.R. 411], Justice Bhagwati (as his Lordship then was) speaking for the Bench posed the following question for purpose of relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution:
" ...... ..... but if life or personal liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation ? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right to life and personal liberty ..... ........"
44. The aforesaid question was further enlarged in Khatri Vs. State of Bihar reported in 1981 Cri. L.J. 597 in following terms:
" .... ...... If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the State from acting through such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 44/46 right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concession is be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the State of the Fundamental Right guaranteed under Article 21, the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the Fundamental Right under Article 21, the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the Fundamental Right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him ? Would the court permit itself to become helpless spectator of the violation of the Fundamental Right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement of his Fundamental Right, the court cannot give him any relief. ..... ......."
And what has been answered by Hon'ble Apex Court has been elaborated by Hon'ble Delhi High Court Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 45/46 in the case of Prempal & Ors. Vs. the Commissioner of Police & Ors, in paragraph 25.3 as under:-
"25.3 Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. This Court clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. The Court further clarified that in a given case, if the investigation is still proceeding, the Court may even defer the inquiry before it until the investigation is completed or if the Court considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it, even if the investigation or prosecution is pending."
45. In the case of Nilabati Behera Vs. State of Orissa reported in AIR 1993 SC 1960 the Hon'ble Supreme Court observed thus:
".... ...... award of compensation in a proceeding under Article 32 by this court or by the High Patna High Court CR. WJC No.277 of 2017 dt.01-10-2019 46/46 Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. ........"
46. This court, therefore holds the State liable for infringement of fundamental right of the petitioner by confining him in Police Station and award a sum of Rs. 50,000/- as compensation to the petitioner. The then S.H.O. Pupri who kept the petitioner confined in the Police Station has already been proceeded against and a disciplinary proceeding has been initiated against him. let the same be taken to a logical end.
47. The State shall pay the compensation amount to the petitioner within three months from today. This amount shall be realized from Sri Vivek Kumar Jaiswal, the then S.H.O. Pupri, in accordance with law.
(Rajeev Ranjan Prasad, J) Rajeev/-
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