Punjab-Haryana High Court
Kirpal Singh Randhawa And Another vs State Of Punjab And Others on 6 May, 2011
Author: Jora Singh
Bench: Jora Singh
CRWP No. 883 of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRWP No. 883 of 2003
Date of decision: 06.05.2011
Kirpal Singh Randhawa and another
........ Petitioners
Versus
State of Punjab and others
........ Respondents
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Mr. R.S. Bains, Advocate, for the petitioner.
Mr. P.S. Sidhu, Additional Advocate General, Punjab,
for respondent-State, 1 to 4.
Mr. Vaneet Soni, Advocate, and
Mr. Akshay Bhan, Advocate, for respondents No. 5 and 6.
None for respondent No. 7.
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JORA SINGH, J.
Sh. Kirpal Singh Randhawa and Sh. Bachan Singh, preferred this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus, directing respondents No. 5 to 7 to produce (i) Hira Singh S/o Maya Singh, aged about 15 years, resident of village Mahal, District Amritsar; (ii) Surjit Singh S/o Satnam Singh, aged about 15 years; (iii) Sonu son of Karma;
(iv) Surjit Singh @ Bhallu S/o Bachan Singh, aged about 20 years; (v) CRWP No. 883 of 2003 -2- Amandeep Singh S/o Pargat Singh, aged about 17 years; (vi) Gurjit Singh S/o Bachan Singh, aged about 15 years; (vii) Mohan Lal son of Pheruman aged about 26 years and (viii) one more person aged about 17-18 years.
That on 15.6.2003, four young men from village Mahal, District Amritsar, left from the village to visit the shrine of Mata Vaishnu Devi and they reached Jammu on 16.6.2003, where they were stated to be arrested by respondent No.7 and others. The custody of above said four persons with Jammu Police was confirmed when Jammu Police with respondent No. 7 had picked up four more persons. Police party lead by respondent No. 7 raided village Mahal at about 5.30 to 6.00 a.m. on 21.6.2003. Four persons arrested by the police were with the party and on 21.6.2003, Amandeep Singh S/o Pargat Singh, Gurjit Singh, son of Bachan Singh, Mohan Lal S/o Pheruman and one more person aged about 17-18 years, were picked up from Guru Ram Dass Sarai, Darbar Sahib Complex, District Amritsar. No information was furnished why young boys were taken into custody by the police. No memo of arrest was prepared. Grounds of arrest were also not prepared as to why young boys were taken into custody. Relations of the detenues namely, Pargat Singh, Puran Singh Sandhu, Surjivan Singh and Manjinder Singh, had gone to Police Station Gangyal, at 10.00 p.m. on 21.6.2003, Jammu and Kashmir and had personally met respondent No.7, who assured that all the boys are safe and advised them to stay in nearby Gurudwara and come in the morning. Next day at about 7.30 a.m. number of persons from village Mahal, again contacted respondent No.7 who acknowledged that all the deteneus are in custody and after Enquiry they are to be released. Relations of the CRWP No. 883 of 2003 -3- detenues were directed to come on 25.6.2003. On 25.6.2003, Pargat Singh father of Amandeep Singh, with letter of R.L. Bhatia, MP, had gone to Jammu and had met Mr. Saini, SP, Jammu, but Mr. Saini, SP, Jammu, abused everybody and declared that he was not going to release anybody and if they insisted to pursue the matter then they are also to be taken into custody. Out of fear relatives of the detenues and villagers came back from Jammu and Kashmir. Detenues were illegally detained and on 3.7.2003, dead body of Mohan Lal, arrived in the village brought by his father-in-law, who disclosed that he was detained for four days and respondent No. 7 had directed him to take dead body of Mohan Lal. After protest by the public, FIR No. 228 dated 4.7.2003, under Sections 302/344 IPC at Police Station Sadar, Amritsar. Post- mortem examination on the dead body of Mohan Lal, was got conducted. After the registration of FIR accused were not arrested and abducted young boys were not released. Representation was also sent to SSP, Amritsar, regarding illegal detention of Amandeep Singh. One of the detenu has already died in police custody and an attempt has been made to destroy the evidence. Remaining 7 detenues are being detained to force their families to withdraw the criminal case. Detenues are seen in the custody of Police Station, Gangyal, Jammu, by the relations of the detenues. Prayed that respondents No. 5 to 7 be directed to produce the detenues and in FIR No. 228 dated 4.7.2003 under Sections 302/344 IPC, after investigation final report in Court be presented expeditiously. State be directed to grant compensation to the legal heirs of the detenues @ ` 5000/- per day in the illegal detention and ` 10 lacs as compensation to the legal heirs of Mohan Lal, who was CRWP No. 883 of 2003 -4- murdered in the illegal custody.
In pursuance to the notice respondents No. 1 to 4 filed reply in the shape of affidavit of A.A. Sidiqui, IPS, DGP, Punjab and the allegation of respondents No. 1 to 4 was that on 21.6.2003, respondent No.7, who was the SHO of Police Station Gangyal, District Jammu, along with police officials came to Police Post Mahal, for seeking police help for conducting raid at village Mahal in connection with the investigation of FIR No. 55 of 2003, under Sections 460/409 IPC, Police Station Gangyal, District Jammu. Police help was provided to respondent No. 7. DDR No. 22 dated 21.6.2003, was recorded in the roznamcha copy of which is Annexure R-I. Raid was conducted by respondent No. 7. Mohan Lal S/o Pheru resident of village Mahal, along with Amandeep Singh, were arrested. As per report by Constable Mangal Singh, on return to PP, DDR No. 23 dated 21.6.2003, was recorded copy of which is Annexure R-II. On 3.7.2003, dead body of Mohan Lal, was brought by his father-in-law at village Mahal. FIR No. 228 dated 4.7.2003 under Sections 302/344 IPC, was registered. Post mortem examination of the dead body of Mohan Lal was got conducted by the Board of Doctors. Videography was done at the time of postmortem examination and cassette was produced before the Chairman, Punjab State Human Rights Commission, Chandigarh. Special Investigation Team was constituted to investigate the matter and SSP, Jammu informed that Magisterial Enquiry was ordered into the cause of death of Mohan Lal. Copy of the order is Annexure R-III. District Magistrate, Amritsar, also wrote a letter to Home Secretary, Government of Punjab, to take up the matter with Jammu and Kashmir Government, for suitable action against the guilty police personnel. CRWP No. 883 of 2003 -5- Representation dated 21.6.2003, was received in the office regarding illegal detention of Amandeep Singh and Enquiry was marked to Inspector Baldev Singh. Representation was filed because Amandeep Singh, was arrested in FIR No. 55 under Section 460/409 IPC.
Additional affidavit was filed by the then DGP, Punjab, Chandigarh, to the effect that Gurjit Singh and Amandeep Singh, were arrested in case FIR No. 97 of 2002 under Section 394 IPC.
Respondents No. 5 and 6 filed separate reply to the effect that four persons namely Sonu, Hira Singh, Surjit Singh S/o Bachan Singh and Surjit Singh S/o Satnam Singh, residents of village Mahal, Amirtsar, were apprehended by the villagers of village Jaluchak and were handed over to the SHO of Police Station Gangyal, i.e. respondent No. 7 suspecting them to be the members of gang known as Kala Kachha gang. The abovesaid four persons were taken into custody under Section 54 Cr.P.C. DDR No. 27 dated 17.6.2003, was recorded but subsequently after questioning given benefit of Section 169 Cr.P.C. for want of sufficient evidence and to this effect DDR No. 14 dated 18.3.2006, was recorded. One of the arrested person namely Surjit Singh S/o Bachan Singh, had disclosed that there are four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, who are involved in the crimes committed by Kala Kachha gang. As per information supplied by Surjit Singh @ Bhallu s/o Bachan Singh, matter was discussed with Senior Superintendent of Police, Jammu, who directed respondent No. 7 to proceed to Punjab to arrest these persons and after raid the abovesaid four persons were taken into custody by respondent in the presence of officials of Police Station Sadar and Police Post, Mahal, Amritsar. Amandeep Singh, Gurjit CRWP No. 883 of 2003 -6- Singh, Mohan Lal and Gopal Dass, were brought to Police Station Gangyal and after questioning, given the benefit of Section 169 Cr.P.C. for want of sufficient evidence but all the 8 boys were directed to remain present for further questioning,\ as the suspicion was grave against them for their involvement in the related crimes committed by Kala Kachha Gang in Jammu area. Mohan Lal was admitted in District Police Lines, Hospital for treatment alleged to be suffering with fever and dysentery. After death of Mohan Lal, post-mortem examination was got conducted. Death of Mohan Lal was in District Police Lines Hospital Jammu and to ensure fair play, judicial Enquiry was got conducted. Annexure R6-I is the copy of the Magisterial Order. As per Magisterial Enquiry Report, in case Mohan Lal died un-natural death then it was directed to register a case and get the matter investigated to ensure that guilty if any be brought to book and dealt with in accordance with law.
Respondent No.7 filed separate reply with the allegation that FIR No. 136 of 2002 under Section 460 IPC was registered in Police Station Gangyal and on 18.6.2003 at about 0150 hours on 18.6.2003 on receipt of telephonic information regarding the presence of four persons in suspicious circumstances in the area of village Jaluchak, after recording DDR No. 26 dated 18.6.2003, he had gone to village Jaluchak. Yash Pal resident of village Jaluchak, handed over four persons to the police namely Sonu, Surjit Singh S/o Bachan Singh, Hira Singh and another Surjit Singh S/o Satnam Singh, residents of village Mahal, District Amritsar, Punjab. After return to the police station with the above said four suspects at 0315 hours on 18.6.2003, all the suspects were questioned in FIR No. 136 of 2002 under Sections 460 CRWP No. 883 of 2003 -7- IPC and were kept in custody under Section 54 Cr.P.C. but no sufficient evidence was available justifying their further custody. Benefit of Section 169 Cr.P.C. was given. DDR No. 14 dated 18.6.2003 at 1730 hours was recorded. During interrogation, abovesaid four persons had disclosed that there are four other persons from Punjab involved in various such crimes, then after consultation with the higher officials, the answering respondent was directed to proceed to Punjab vide movement order No. 19604-05/DPO dated 20.6.2003, copy of which is Annexure R7-1. After recording DDR No. 9 dated 20.6.2003, on reaching Amritsar, the answering respondent informed Police Station Sadar, Amritsar, and incharge of Police Station Mahal, who deputed some officials of the Police to accompany the answering respondent then he had apprehended four persons from village Mahal, identified by Surjit Singh S/o Bancha Singh and those four persons were Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass. Suspects were brought to Jammu but after questioning them there was no sufficient evidence available to connect the above said four persons with the crime as alleged in FIR No. 136 of 2002, benefit of Section 169 Cr.P.C. was given and the four persons were released. DDR No. 12 dated 22.6.2003 was recorded with direction to those persons to remain present in Jammu to enable themselves to attend the police station as and when required since the case being investigated was of special nature and linked with series of heinous crimes. On 1.7.2003, Mohan Lal (deceased) was directed to present himself in police station in connection with the investigation of FIR No. 136 of 2002. Mohan Lal, complained of being sick suffering with fever and dysentery. Mohal Lal, was referred to District Police Lines Hospital, Jammu and on 2.7.2003, CRWP No. 883 of 2003 -8- answering respondent had enquired about the condition of Mohan Lal in District Police Lines Hospital, Jammu and reply of the doctor was that he is improving but on 3.7.2003, on telephone by the District Police Lines Hospital, Jammu, answering respondent came to know that Mohan Lal, admitted on 1.7.2003, in hospital has expired. Dead body was shifted to Government Medical College, Jammu. Post-mortem examination was got conducted. FIR No. 228 dated 4.7.2003, under Sections 302/344 IPC was registered in Police Station Sadar, Amritsar. Police Station Sadar, Amritsar, has no jurisdiction to register the case. There was a Magisterial Enquiry.
I have learned counsel for the petitioners, learned counsel for the Punjab State, learned counsel for the respondents No. 5 and 6 and have carefully gone through the file.
Learned counsel for the petitioners argued on 15.6.2003, four young men namely Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, from village Mahal, District Amritsar, had gone to visit the shrine of Mata Vaishnu Devi. On 16.6.2003, they were in Jammu but they were arrested by the police party headed by respondent No.7. Again on 21.6.2003, police party headed by respondent No. 7 came to District Amritsar. DDR No. 22 dated 21.6.2003, was recorded in Police Station Amritsar. Four persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were arrested in FIR No. 55 of 2003 under Sections 460/409 IPC at Police Station Gangyal, District Jammu. DDR No 22 dated 21.6.2003 was recorded at 6.45 p.m. copy of which is (Annexure R-I) and as per DDR No. 23 dated 21.6.2003 (copy of which is Annexure R-II), recorded at 7.45 a.m. after the arrest of Amandeep Singh, Gurjit Singh, Mohan CRWP No. 883 of 2003 -9- Lal and Gopal Dass, they were taken away to Jammu. According to reply by respondents No. 5 and 6, four persons namely, Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, were apprehended by the police party headed respondent No.7. DDR No. 26 dated 18.6.2003, was recorded. As per DDR No. 26, a telephonic information was received regarding the presence of four persons in the area of village Jaluchak and as per DDR No. 27 police party had gone to village Jaluchak and had apprehended the abovesaid four persons but according to the reply after questioning benefit of Section 169 Cr.P.C. was given. Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, were released. DDR No. 14 dated 18.6.2003, was recorded. Reply of respondents No. 5 to 7 further shows that after four persons were apprehended on 18.6.2003, then during investigation respondent No.7 came to know about the involvement of four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass and to apprehend them, police party headed by respondent No.7 had gone to Amritsar, by making entry in the Daily Diary Register i.e. DDR No. 9 dated 20.6.2003. After contacting the Police Station Sadar, Amritsar and Police Post Mahal, with officials of Punjab Police, party had raided village Mahal. Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were arrested in FIR No. 55 of 2003 and were brought to Police Station Gangyal, District Jammu. DDR No. 12 dated 22.6.2007, was recorded. Copies of all the DDRs are on the file.
Allegation of respondent No. 7 is that after questioning Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, then were given benefit of Section 169 Cr.P.C. with direction to remain in Jammu CRWP No. 883 of 2003 -10- for further questioning that means Mohan Lal deceased was in the custody of the police. As per respondent No.7 Mohan Lal was summoned to the police station on 1.7.2003 but regarding summoning of Mohan Lal to the police station no entry in the roznamcha. According to the story, Mohan Lal, complained of fever and dysentery then he was got admitted in the District Police Lines Hospital Jammu. While lying admitted in the hospital Mohan Lal had expired on 3.7.2003. Dead body was handed over to the father-in-law of Mohan Lal, after post- mortem examination but again no entry in the daily diary register that the dead body was handed over to father-in-law after post mortem examination. As per post-mortem report by the doctor of Government Medical College, Jammu, more than 16 injuries were noticed. Number of contusions were noticed but as per post-mortem report cause of death was due to blood infection i.e. due to septicemia and shock. If on 1.7.2003, more than 16 injuries were on the person of Mohan Lal, then entry in this regard should have been made in the roznamcha. No report by the doctor that at the time of admission in the hospital on 1.7.2003, more than 16 injuries were noticed on the person of Mohan Lal. Allegation of respondent No.7 was that Mohan Lal, complained of fever and dysentery but according to the Magisterial Enquiry death was due to septicemia and shock.
Argued that Mohan Lal was arrested by the police party headed by respondent No.7 but after arrest he was not produced before the concerned Illaqa Magistrate. Nothing on the file that arrest memo was sent to his relations. According to the story, Mohan Lal deceased was the member of Kala Kachha gang. Heinous crimes were committed in Jammu. Earlier information with respondent No. 7 that CRWP No. 883 of 2003 -11- Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh are the members of Kala Kachha Gang but they were released by giving the benefit of Section 169 Cr.P.C. on the same day i.e. on 18.6.2003. Four persons were arrested from village Mahal, namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass on 21.6.2003 but they were not produced before the concerned Illaqa Magistrate. Allegation of respondent No.7 was that there was no sufficient evidence justifying their custody. Once four persons were arrested on 18.6.2003, on the allegation that they are the members of Kala Kachha gang then there was no reason to release them on the same day by not producing them before the Illaqa Magistrate. As per investigation, four persons namely Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh were arrested on 18.6.2003, four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were involved in commission of crimes in Jammu. Four persons including Mohan Lal (deceased) were arrested on 21.6.2003 but without producing them in Court they were released on the same day on the allegation that no sufficient evidence available justifying their further custody. After death dead body of Mohan Lal was handed over to his father-in-law who brought his dead body to Amritsar and at Amritsar, Board of Doctors had conducted post-mortem examination on the dead body of Mohan Lal. Copy of post-mortem report Annexure P-11 is on the file. 41 injuries were noticed. Death was due to haemorrhage and shock as a result of cumulative effect of injuries which were sufficient to cause death in ordinary course of nature. At the time of post-mortem examination at Amritsar, skiagram was prepared showing the receipt of injuries 41 injuries noticed on the CRWP No. 883 of 2003 -12- person of deceased shows that deceased was not in a position to walk. If Mohan Lal had 41 injuries on his person and had gone to police station on 1.7.2003 then very strange that he had complained of fever and dysentery and without making entry in the roznamcha regarding injuries, Mohan Lal was referred to District Police Lines Hospital, Jammu. When more than 16 or 17 injures on the person of Mohan Lal as per post-mortem reports then why Mohan Lal was shifted to District Police Lines Hospital, Jammu and why not to the Civil Hospital, Jammu, for check up by the expert. In fact four persons were arrested by the police party headed by respondent No.7 on 18.6.2003. Four other persons including the deceased were arrested on 21.6.2003. DDR No. 14 dated 18.6.2003, regarding release of four persons under Section 169 Cr.P.C. and regarding release of four other persons arrested on 21.6.2003 by giving benefit of Section 169 Cr.P.C. by recording DDR No. 12 dated 22.6.2003, were entered later on after death of Mohan Lal because roznamcha was with the Police Station Gangyal. After arrest of detenues, including the deceased intimation should have been given to the Illaqa Magistrate but no intimation till today. No explanation why after arrest detenues were not produced before the Illaqa Magistrate. FIR No. 228 dated 4.7.2003, was registered at Police Station Sadar, Amritsar, but no progress.
Argued that deceased was married having three children. He was employee in the factory. Un-natural death in police custody so heirs of the deceased are entitled to compensation to the tune of ` 10 lacs.
Learned State counsel for respondents No. 1 to 4 argued CRWP No. 883 of 2003 -13- that FIR No. 228 dated 4.7.2003, was registered but after investigation, cancellation report was submitted in Court and the same is pending. In case, Court is of the opinion that death of Mohan Lal was in the custody of police after the deceased was tortured then suitable action is to be taken against the guilty police officials.
Learned counsel for respondents No. 5 and 6 argued that four persons were apprehended in view of telephonic message from the residents of village Jaluchak but after investigation when there was no evidence then they were released by giving the benefit of Section 169 Cr.P.C. DDR No. 14 dated 18.6.2003 was recorded. Four other persons including the deceased were arrested on 21.6.2003. While leaving the Police Station Gangyal, entry was made in the roznamcha. After arrest of four persons including the deceased entry was made in the roznamcha of Police Station Sadar, Amritsar. DDR Nos. 22 and 23 dated 21.6.2003, were recorded. Four persons including the deceased were brought to Police Station Gangyal by the police party headed by respondent No.7 but after investigation no sufficient evidence was available justifying their custody then benefit of Section 169 Cr.P.C. was extended to four persons on 22.6.2003, arrested from Amritsar, with a direction to remain in the area of Jammu, for further investigation of this case they are to be summoned in Police Station, Jammu. On 1.7.2003, Mohan Lal (deceased) was summoned to Police Station Jammu but he complained that he is suffering from fever and dysentery then he was referred to District Police Lines Hospital, Jammu. On 2.7.2003, Enquiry was made about the welfare of Mohan Lal and doctor reported that he is improving but on 3.7.2003, Mohan Lal lying admitted in the hospital had expired. Magisterial Enquiry was entrusted. According to the Enquiry CRWP No. 883 of 2003 -14- report death was due to septicemia and shock. Enquiry report Annexure R-I, was not challenged. If the petitioners or the legal heirs of the deceased are aggrieved with the Enquiry report then Enquiry report could easily be challenged before the concerned Court of Jammu and Kashmir. This Court has no jurisdiction to entertain the petition. FIR No. 228 dated 4.7.2003, was registered at Police Station Sadar, Amritsar, but after investigation allegations were not found to be correct one. Cancellation report was submitted. Petitioners or the LRs of the deceased are at liberty to move petition before the concerned Court or file private complaint before the Illaqa Magistrate of Police Station Gangyal, District Jammu. In support of his contention learned counsel for respondents No. 5 and 6 cited (1994) 4 Supreme Court Cases, 710, "Aligarh Muslim University and another Vs. Vinay Engineering Enterprises (P) Ltd. And another", and (1994) 4 Supreme Court Cases 711, "Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others".
Undisputedly, respondent No.7 was served but despite service he is not appearing. On some dates, Mr. M.A. Bhatt, Advocate and on some dates Mr. G.S. Ghuman, Advocate, appeared on behalf of respondent No. 7. Earlier presence of Mr.Vaneet Soni, Advocate, was marked on behalf of respondent No. 7 as per order dated 23.11.2007. On the next date of hearing i.e. on 5.2.2008, presence of Mr. Akshay Bhan, Advocate, was marked on behalf of respondent No.7 also but after that no one has put in appearance on behalf of respondent No.7.
From the perusal of file, one thing is clear that Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam CRWP No. 883 of 2003 -15- Singh, all residents of village Mahal, District Amritsar, Punjab, were apprehended by the police party headed by respondent No.7. Allegation of the petitioners is that four persons namely Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, were arrested on 16.6.2003, when they had gone to visit the shrine of Mata Vaishno Devi but allegation of respondents No. 5 to 7 is that the above said four persons were noticed in the area of village Jaluchak. Villagers of Jaluchak on telephone informed the SHO, Police Station Gangyal, then as per telephonic information respondent No.7 alongwith the other police officials after making entries in the roznamcha i.e. DDR No. 26 dated 18.6.2003, at about 0150 hours had gone to village village Jaluchak. All the four persons were apprehended and were brought to the police station. DDR No. 27 dated 18.6.2003, was recorded regarding arrest under Section 54 Cr.P.C. but on the same day they were released under Section 169 Cr.P.C. on the allegation that no sufficient evidence was available justifying their further custody. Now, the dispute is whether four persons were arrested on 16.6.2003 or on 18.6.2003 but one thing is clear that all the four persons arrested under Section 54 Cr.P.c. were not produced before the Illaqa Magistrate.
Allegation of respondents No. 5 to 7 is that during investigation of four persons apprehended as per telephonic message on 18.6.2003, police party came to know that there are four more persons who are involved in the heinous crimes in the area of Jammu. They are the members of Kala Kachha gang. After consulting higher authorities and as per movement order No. 19604-05/DPO dated 20.6.2003, copy of which is Annexure R7-1, police party headed by CRWP No. 883 of 2003 -16- respondent No. 7, after recording DDR No. 9 dated 20.6.2003, came to Punjab. SHO, Police Station Sadar, Amritsar and incharge of Police Post Mahal, were contacted. In Police Station DDR No. 7 dated 21.6.2003, was recorded. With the police officials of Punjab Police raiding party headed by respondent No.7 had arrested four other persons namely Amandeep Singh, Gurdip Singh, Mohan Lal (deceased) and Gopal Dass. After arrest DDR No. 23 copy of which is Annexure R- 3 dated 21.6.2003, was recorded at 7.45 am. Arrest was in FIR No. 55 of 2003, under Sections 460/409 IPC, Police Station Gangyal, District Jammu.
After arrest of four persons including the deceased on 21.6.2003, arrested persons were brought to Police Station Gangyal. DDR No. 20 dated 21.6.2003, was recorded. As per respondent No.7 after interrogating, the four persons arrested in FIR No. 55 of 2003, when no sufficient evidence was available justifying their further custody then benefit of Section 169 Cr.P.C. was given. DDR No. 12 dated 22.6.2003, was recorded.
On 1.7.2003, Mohan Lal was again summoned to police station but no entry in the roznamcha as to how Mohan Lal was summoned to the police station whether any official was sent to summon Mohan Lal or whether any notice was sent and through which official or any notice under Section 160 Cr.P.C. was sent through any police official but allegation of respondent No. 7 was that Mohan Lal came to police station for further interrogation, in FIR No. 136 of 2002, then he complained that he is down with fever and dysentery. Mohan Lal was sent to District Police Lines Hospital, Jammu and ultimately on 3.7.2003, Mohan Lal had expired.
CRWP No. 883 of 2003 -17-
After death in District Police Lines Hospital, Jammu, post mortem examination was got conducted and as per post-mortem report following injuries were noticed:
"1. Contusion over back in right Lumbor region, 7 cm x 1.5 cm, obliquely placed, dark bluish coloured.
2. Healing abrasion with desquamation of skin over the back in middle part at the level of L 4, 5 vertebra measuring 5 cm x 3 cm.
3. 3 Nos. healing abrasions with partial pealing of scapular right hip, posterior laterally, each measuring 6 cm x 2.5 cm.
4. Healing abrasion over L hip on posterior part, measuring 6 cm x 2.5 cm, partial pealing of scar.
5. 12 Nos. parallel contusions over posterior aspect of R thigh and leg, vertically placed, each measuring 5 cm x 0.5 cm. Separated from each by healthy tissue measuring 1.3 cm.
6. Multiple diffuse bruise in front of R thigh in upper 2/3 region, dark blue in colour.
7. 3 Nos. parallel contusions in front of lower 1/3 of R thigh, measuring 5 cm x 0.5 cm separated by healthy skin measuring 0.5 cm.
8. Multiple contusions over posterior part of L thigh and leg of varying sizes.
9. Diffuse contusion over dorsum of left ankle and CRWP No. 883 of 2003 -18- foot, dark blue in colour.
10. Diffuse contusion in front of left leg, in middle part, dark blue in colour.
11. Diffuse contusion over left hip, dark blue in colour.
12. Multiple parallel contusions over anterior part of left leg, measuring 5 cm x 0.5 cm, separated by healthy skin 0.5 cm.
13. Healing abrasion 2-3 cm wide with desquamation of skin over both the wrists, encircling both the fore-arms, 5 cm above the wrist joint.
14. Diffuse bruise over R iliac fossa. Massive infiltration of blood in sub-cutaneous tissue and muscles under the bruises."
Some of the injuries were contusions. If number of injuries were on the person of Mohan Lal when he came to the police station on 1.7.2003 in connection with further investigation of FIR No. 136 of 2002 then injury report should have been prepared by respondent No. 7. Entry should have been made in the roznamcha regarding injuries on the person of Mohan Lal but no injury report or entry in the roznamcha. After arrest of four persons on 18.6.2003, suspecting them to be the members of Kala Kachha gang then there was no reason why they were not produced before the concerned Illaqa Magistrate. There were serious allegations against four persons arrested on 18.6.2003 but on the same day they were given the benefit of Section 169 Cr.P.C. on the allegation that there was no sufficient evidence available justifying their CRWP No. 883 of 2003 -19- further detention. If villagers of Jaluchak suspected that four persons found present in the village are the members of Kala Kachha gang and number of crimes were committed in the area then respondent No. 7 should have produced them before the concerned Illaqa Magistrate but no explanation why they were not produced in Court. As per interrogation of the persons arrested on 18.6.2003, respondent No.7 came to know that four other persons from District Amritsar are involved in serious crimes committed in the area of Jammu i.e. they are the members of Kala Kachha Gang then respondent No. 7 had arrested four persons on 21.6.2003, from District Amritsar including the deceased but on 22.6.2003, they were given the benefit of Section 169 Cr.P.C. No explanation why four persons arrested in FIR No. 55 of 2003, were not produced in the concerned Court. If after the arrest, respondent No. 7 was of the opinion that no sufficient evidence was available justifying their further detention then why they were directed to remain present in the area of Jammu for further investigation, when serious crimes committed in the area of Jammu as per number of FIRs and cuttings of the newspapers. Annexure R7-2 to Annexure R7-25 are the cuttings of newspapers. Annexure R7-26 to Annexure R7-50 are the copies of different FIRs but after arrest, arrested persons were released with the allegation that no sufficient evidence was available justifying their further detention. In fact the roznamcha of Police Station Gangyal was with respondent No.7 then it was very easy for respondent No.7 to make entry in the roznamcha that after arrest of four persons on 18.6.2003, benefit of Section 169 Cr.P.C. was given on the same day and after arrest of four other persons including the deceased on 21.6.2003, benefit of Section 169 Cr.P.C. was given on 22.6.2003 but CRWP No. 883 of 2003 -20- one thing is clear that on 1.7.2003, Mohan Lal (deceased) was in the Police Station Gangyal. If on that day number of injuries were on the person of Mohan Lal then entry should have been made in the roznamcha regarding injuries on the person of Mohan Lal. Injury report should have been prepared but no entry in the roznamcha or no injury report. Mohan Lal, was sent to District Police Lines Hospital, Jammu but again no report by the doctor that at the time of admission 16 or 41 injuries were noticed on the person of Mohan Lal (deceased), out of which number of injuries were contusions. After death on 3.7.2003, post-mortem examination was conducted and dead body was handed over to the father-in-law of Mohan Lal. At Amritsar, again there was post-mortem examination by the Board of Doctors and following injuries were noticed:
"1. Yellowish white burn mark, 13 x 2-4 cm with charred margins is present in front of (R) lateral aspect and back of (R) forearm 6.5 cm above centre of wrist.
2. A bluish black bruise 1 x 0.6 cm present on tip of (R) ring finger.
3. A dark bruise black bruise 2 x 1.8 cm is present on tip and underneath the nail of (R) middle finger. A saggitaly sutured wound staining C/A nasion extending up to occipital protuberance is present over head (Sutured autopsy incision).
4. An abrasion 2.7 x 0.3 cm with dark brown scar falling off at place is present on tip of (L) CRWP No. 883 of 2003 -21- shoulder region.
5. Dark bluish black bruise 1 x 0.8 cm present on tip of (L) thumb.
6. An infected wound with superficial slough splitting off the wound measuring 11 x 5-1.5 cm with yellowish white base is present around the (L) wrist except its front.
7. An incised wound 1 x 0.5 cm with clean cut margins present on front of (L) thigh 6 cm below (L) anterior superior ilioc spine.
8. 5.5 x 3 cm incised wound present on (L) inguinal region, 3.5 cm away from base of penis.
9. Dark brown elliptical abrasion horizontally placed, 5.5 x 1.8 cm in size, present on front of (L) thigh 12 cm above centre of knee.
10. A blister 1.5 x 0.8 cm present in front of (L) leg, 10 cm below centre of (L) knee. On rupturing the blister serous fluid came out. Base of blister was (not injected) dull.
11. Multiple dark brownish abrasion size varying from 2 x 0.3 cm to 3 x 1 cm present on front of (L) leg in its middle 1/3rd .
12. Multiple linear dark brownish abrasion, vertically placed present on outer aspect (L) thigh in its lower half, more or less parallel to one another, 5 in no. size varying from 13-17 CRWP No. 883 of 2003 -22- cm in size.
13. Multiple obliquely placed dark brownish abrasion, 12 in no. size varying from 4 x 0.1 cm to 8 x 2 cm are present on outer aspect of (L) leg in its upper ½.
14. Multiple pointed yellowish brown marks, 15 in no. size varying from 0.1 x 0.1 cm to 1 x 0.3 cm are present on anteriolateral aspect of (L) leg it is lower 1/3rd.
15. An oblique dark brownish abrasion 6 x 0.2 cm present on inner aspect of (L) leg, 7 cm above (L) medial malliolus.
16. An electric current mark with crator margins with hyperemic zone present about the wound 1 x 0.6 cm present in inner aspect of (R) leg 4.5 cm above medial malleolus.
17. An abrasion 2.5 x 0.6 cm abliquely placed present on inner aspect of (R) knee with failing of scab present at places.
18. 2 parallel dark brownish abrasion with ends meeting each other separated by 0.6 cm from each other is present on (R) knee is horizontally placed.
19. 5.5 x 1 cm dark brownish abrasion with falling of scab, horizontally placed in lower 1/3rd of thigh.
20. Multiple (3) obliquely placed abrasion with dark CRWP No. 883 of 2003 -23- brown scab falling at places size varying from 5 x 0.1 to 13 x 0.1 cm present on front and lower half of (R) thigh.
21. 5.5. x 2 cm abrasion with dark brown scab is present in (R) thigh over its outer aspect in its centre.
22. Collapsed blister 4.5 x 2.3 cm present on outer aspect of (R) thigh in its upper 1/3rd.
23. Multiple scattered hypermic area in 8 x 6 cm area present in (R) lateral aspect of trunk in its middle.
24. Diffuse swelling dark bluish black colour present on whole of (R) thigh. On dissection & dark reddish blue infiltration is present in underlying muscles.
25. Dark reddish blue discoloration of (L) calf is present on dissection-Dark reddish coloured heamotomea present in underlying muscles.
Infiltration present.
26. Diffuse swelling present on anterio-lateral aspect of (L) thigh is present in its upper 1/3rd and middle 1/3rd.
27. Dark reddish blue discoloration of (R) calf is present. On dissection - dark reddish coloured haemotomea and infiltration is present.
28. Dark reddish blue discoloration is present middle 1/3rd of upper (L) are on dissection-
CRWP No. 883 of 2003 -24-underlying muscles shows infiltration.
29. Swelling over medial border of (L) sole is present. O/D + underlying muscles shows infiltration.
30. Diffuse dark bluish black swelling is present on anterior aspect of upper 1/3rd of (R) forearm.
On dissection underlying muscles shows infiltration.
31. Multiple dark brown abrasion, 5 in no. size varying from 2 x 0.6 cm to 4 x 0.3 cm present on back of (L) calf.
32. Abrasion with dark brown scab obliquely placed, 6 x 1 cms present on (L) popliteal fossa
33. Multiple dark bluish bruise 4 in no. size varying from 5 x 3 to 2.8 x 1.2 cm on back of (L) thigh.
34. Multiple brownish linear abrasions present on back of (R) calf scab.
35. Multiple electric mark with charred skin at places with yellowish base with hyperaemic zone, size varying from 0.5 x 0.3 to 0.2 x 0.1 cm present or (R) popliteal fossa.
36. Abraded bluish black bruise 10 x 3 cm present in back of (R) thigh in its lower 1/3rd, obliquely placed.
37. An electric current mark with crater margins, yellowish base is present on (L) buttock 5 x 2 CRWP No. 883 of 2003 -25- cm in size.
38. 4 x 1.8 cm electric current mark with crater margins & yellowish base present on (R) buttock at its middle.
39. 3.1 x 1.2 cm electric current mark with crater margins and yellowish base and hypermic surrounding zone present on (R) buttock 2.3 cm distal to injury No. 38.
40. 5.5 x 1 cm electrical current mark present on lumbosacral region in midline.
41. 7 x 1 cm obliquely placed brownish black abrasion with scab falling off at places is present on back and (R) side of trunk in its centre. After opening the sutured midline incision on front of trunk if is extended sub-
mentally."
Skiagram showing the seat of injuries on the file shows that if number of injuries were on the person of Mohan Lal as noticed by the doctor then Mohan Lal, was not in a position to even move without help. When a person having number of injuries cannot move without support then it was very easy for respondent No.7 to make entry in the roznamcha that Mohan Lal, had complained of fever and dysentery and was sent to District Police Lines Hospital, Jammu. When number of injuries were on the person of Mohan Lal then he should have been shifted to Civil Hospital, Jammu, for treatment by the expert.
After arrest of four persons on 16.6.2003 or 18.6.2003, representation dated 21.6.2003, was sent to the Senior Superintendent CRWP No. 883 of 2003 -26- of Police, Amritsar, regarding illegal detention of Amandeep Singh and this fact is clear from the reply filed by DGP, Punjab, on behalf of respondents No.1 to 4. As per post-mortem report by the Department of Forensic Medicine, Government Medical College Hospital, Jammu, more than 16 injures were noticed on the dead body of Mohan Lal whereas as per post-mortem report by the Department of Forensic Medicine and Toxicology, Government Medical College, Amritsar, 41 injuries were noticed. Some of the injuries shows that electric shocks were given to the deceased.
No doubt, there was a Magisterial Enquiry. Report of the Enquiry Officer is on the file. Enquiry Officer, was Tehsildar Settlement (Enquiry Officer) Executive Magistrate Ist Class, Jammu and as per report death was due to septicemia and shock. According to the enquiry report on 1.7.2003, three other suspects other than Mohan Lal were freed by respondent No. 7 but Mohan Lal due to illness was admitted in the hospital but reply of respondent No.7 is the effect that only Mohan Lal presented himself in police station on 1.7.2003, in connection with the investigation of FIR No. 136 of 2002. No reference of other three persons in the police station on 1.7.2003. All discussed above shows that deceased was arrested on 21.6.2003, in FIR No. 55 of 2003. He was kept in police custody without production before the concerned Court. During custody he was tortured and ultimately un- natural death on 3.7.2003, in District Police Lines Hospital, Jammu, but to avoid action entries were made in the roznamcha that Mohan Lal- deceased along with three other persons was released by giving benefit of Section 169 Cr.P.C. on 22.6.2003 and entry No. 12 was recorded in the Daily Diary Register.
CRWP No. 883 of 2003 -27-
After the arrest of deceased in FIR No. 55 under Section 54 Cr.P.C. then as per Section 56 Cr.P.C. arrested person was to be produced before Magistrate or Officer incharge of the police station but in the present case, Mohan Lal was arrested by the incharge of the police station i.e. respondent No.7. As per Section 57 Cr.P.C. arrested person cannot be detained in custody more than 24 hours in the absence of special order of Magistrate under Section 167 Cr.P.C. Under Section 167 Cr.P.C., when a person is arrested and detained in custody then the officer in charge of the police station or the police officer making investigation is of the view that investigation cannot be completed within a period of 24 hours as per Section 57 Cr.P.C. then the arrested person was to be produced before the Magistrate, but in the present case very strange procedure was adopted by respondent No.7 by arresting four persons on 18.6.2003 and release under Section 169 Cr.P.C. with the allegation that there was no sufficient evidence available justifying their further custody.
Four persons including the deceased were arrested in case FIR No. 55 of 2002 but again same procedure was adopted. They were given the benefit of Section 169 Cr.P.C. as per DDR No. 12 dated 22.6.2003. On the one hand allegation of respondents No. 5 to 7, serious crimes were committed in the area of Jammu and Kashmir. Daily news in the newspaper regarding serious crimes. As per investigation, four persons were arrested on 18.6.2003. Police party headed by respondent No.7 brought four persons from Punjab, on 21.6.2003, with the allegation that they are the members of Kala Kachha gang but again they were given the benefit of Section 169 Cr.P.C. with a direction to remain in the area of Jammu, for further CRWP No. 883 of 2003 -28- investigation in the FIRs of serious crimes that means after un-natural death of Mohan Lal in police custody, entries of the roznamcha were manipulated. There was contravention of human rights and fundamental freedom.
In AIR 1993 Supreme Court 1960, "Smt. Nilabati Behera @ Lalit behera Vs. State of Orisa and others", Hon'ble Supreme Court held that when there is contravention of human rights and fundamental freedoms by State and its agencies then defence of sovereign immunity not available then petition for monetary compensation under Articles 32 or 226 of the Constitution of India, when only practicable mode of redress available for contravention. In this case deceased 22 years old and his monthly income was between ` 1200/- to ` 1500/-. Compensation of ` 1,50,000/- was awarded.
In Civil Appeal No. 7243 of 1993, "Punjab and Haryana High Court Bar Association Vs. The State of Punjab and others", compensation of ` 10 lacs was ordered to be paid to the parents of Kulwant Singh, Advocate.
In Criminal Writ Petition Nos. 466-67 of 1989, "Parkash Kaur Gurmit Kaur Vs. State of Punjab and others", death was in police custody. State was directed to pay compensation of ` 3 lacs to the heirs of the deceased Kuljit Singh.
In Criminal Writ Petition No. 497 of 1996, "Paramjit Kaur Vs. State of Punjab and others", investigation was ordered by the CBI regarding the whereabouts of Mr. Khalra. State was directed to pay ` 10 lacs as interim compensation to the wife of Jaswant Singh Khalra. In case the police officers are convicted then the State of CRWP No. 883 of 2003 -29- Punjab can recover the amount from the police officers.
In Criminal Writ Petition No. 632 of 1992, "Sharanjit Singh Vs. State (Delhi Admn.) and others", Jaswinder Singh @ Jassi, was kidnapped by the police and allegedly killed in a fake encounter then State was directed to pay ` 5 lacs as compensation to the father of the deceased.
In Criminal Writ Petition Nos. 242-258 of 1994, "Navkiran Singh and others Vs, State of Punjab and others", investigation was conducted by the CBI and report by the CBI was that Jagwinder Singh, was illegally detained by the CIA Staff, Bahadursinghwala and his whereabouts were not known at that time. Police officials were responsible of illegal detention and disappearance and ordered to be criminally prosecuted under Sections 342/343 and 364 IPC. State was directed to pay ` 10 lacs to the mother of the deceased.
In 2004 CRI. L.J. 3722, "Priti Thapar Vs. State of Punjab and others", custodial death inside the jail. Deceased was 28 years old at the time of death and maintaining family of his wife and two minor children. State was directed to pay ` 2.50 lacs to the heirs of the deceased with the observation that State can recover the amount from the officers who have abused their powers of found to be negligent.
In Civil Writ Petition No. 8705 of 2002 (O&M), "Parminder Kaur Vs. State of Punjab and others", ` 3 lacs was ordered to be payable as compensation to the petitioner and the children of the deceased.
In 2004 CRI. L.J. 1706, Abdul Rashid Beigh Vs. The CRWP No. 883 of 2003 -30- State", custodial disappearance of victim. Victim was working as cameraman with University of Kashmir. State was directed to register criminal case against the erring police officials and also initiate disciplinary proceedings against them. Compensation of ` 3 lacs was ordered to be paid to the family of the victim.
In the present case Mohan Lal, was arrested on 21.6.2003, in FIR No. 55 of 2002 but he was not produced before the Illaqa Magistrate or the nearest Magistrate, as per law. He was kept confined illegally till un-natural death on 3.7.2003. Number of injuries including contusions, electric shocks were noticed but story was concocted that when deceased complained of fever and dysentery then he was referred to the hospital and natural death. If there was natural death how report by the Enquiry Officer or doctor that death was due to septicemia and shock. Death due to septicemia can be possible if there were injuries on the person of deceased. If on 1.7.2003, some injuries were on the person of deceased when he came to police station then why no injury report or entry in the roznamcha that near about 16 injuries are on the person of Mohan Lal. Failure to produce the deceased before the concerned Court and torture during custody then I am of the opinion that there was violation of human rights and fundamental freedom by the State and agency and no question of sovereign immunity. Submission of learned counsel for respondents No. 5 and 6 is to the effect that after death in hospital on 3.7.2003, there was Magisterial Enquiry. Enquiry report on the file but the same was not challenged. Petitioners or the relations of the deceased should approach the Hon'ble High Court of Jammu and Kashmir to challenge CRWP No. 883 of 2003 -31- the enquiry report or file private complaint against the concerned police officials in Jammu and Kashmir. This Court has no jurisdiction to entertain the petition. Secondly, FIR No. 228 of 4.7.2003, was registered in Police Station Sadar, Amritsar and cancellation report was submitted. Petitioners or LRs of the deceased should file protest petition to challenge the cancellation report but after going through the file, I am of the opinion that submission of the learned counsel for respondents No. 5 and 6 seems to be not correct one.
In Aligarh Muslim University (supra) there was a contract amongst the parties and construction work was to be carried out at Aligarh (Uttar Pradesh). According to the agreement, in case of any dispute Aligarh Court alone will have the jurisdiction. Arbitrator appointed at Aligarh but proceedings instituted in Calcutta High Court, on the allegation that respondent was a Calcutta based firm then Court held that no part of the cause of action arose within the jurisdiction of Calcutta High Court. Proceedings unsustainable. Respondent had deliberately moved the High Court. Appeals were allowed. Order of Calcutta High Court was set aside with a direction that proceedings initiated in the High Court of Calcutta, shall be returned to the respondent for presentation in proper Court.
In Oil and Natural Gas Commission (supra) petitioner Company, had registered office at Calcutta and had read in Calcutta newspaper the ONGC's Advertisement, inviting tenders at Delhi for works to be executed in Gujarat then in response the petitioner sent its tender to the Delhi address from Calcutta and also made representations from Calcutta, against non-consideration of its offer on CRWP No. 883 of 2003 -32- ground of its ineligibility because of its failure to fulfill the experience criterion then Hon'ble Supreme Court held that petition did not disclose that even a part of the cause of action arose within the territorial jurisdiction of Calcutta High Court, it had no jurisdiction to entertain the writ petition. Practice of the High Court of entertaining the petitions merely because petitioner resides within its territorial jurisdiction, even though no cause of action arose within its jurisdiction strongly deprecated. Order of the Hon'ble High Court, was set aside but in the present case deceased was arrested from District Amritsar and was brought to Police Station Gangyal, Jammu and Kashmir where he was kept confined illegally and was tortured. Un-natural death in custody of police committing offence. Part of cause of action arose within the territorial jurisdiction of this Court, so, petitioners or the LRs of the deceased cannot be compelled to approach the Hon'ble High Court of Jammu and Kashmir, to challenge the Enquiry Report for the grant of compensation.
As discussed earlier, Mohan Lal (deceased) was 26 years old and was the employee in one factory. Deceased has a wife and three children. Keeping in view 41 injuries on the person of deceased and the way deceased was tortured in police custody, State of Jammu and Kashmir, is directed to pay ` 5 lacs as compensation to the wife and the children of deceased with liberty to recover ` 5 lacs from Sh. Abraha Chawdhary, DSP, Trainee SHO, Police Station Gangyal- respondent No. 7. Payment is to be deposited within two months from the date of receipt of certified copy of the judgment.
Regarding un-natural death of Mohan Lal in police custody CRWP No. 883 of 2003 -33- on account of torture at the hands of respondent No. 7 and other police officials, already FIR No. 228 dated 4.7.2003, was registered in Police Station Sadar, Amritsar. Annexure P-I is the copy of FIR on the file. The Police Commissioner, Amritsar, is directed to entrust the investigation of FIR No. 228 dated 4.7.2003, registered under Sections 302/344 IPC, at Police Station Sadar, Amritsar, to any responsible officer, to submit challan in Court after investigation at the earliest.
For the reasons recorded above, instant petition is disposed of accordingly.
May 06, 2011 ( JORA SINGH ) rishu JUDGE