Himachal Pradesh High Court
Between vs State Of on 4 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 4th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No.352 of 2018
Between:-
r to
SANJEEV KUMAR SON OF
SH. RAM PAL, RESIDENT OF
VILLAGE LAKHANPUR,
P.S. SADAR, DISTRICT BILASPUR,
H.P. PRESENTLY IN JUDICIAL CUSTODY
IN OPEN AIR JAIL BILASPUR, H.P. ......PETITIONER
(BY SH. TARA SINGH CHAUHAN, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(HOME) TO THE GOVERNMENT
OF HIMACHAL PRADESH,
SHIMLA-2.
2. DIRECTOR GENERAL OF POLICE,
HIMACHAL PRADESH,
NIGAM VIHAR, SHIMLA-2.
3. SUPERINTENDENT OF POLICE,
BILASPUR, DISTRICT BILASPUR,
H.P.
4. MS. REENA DAUGHTER OF
(NOT KNOWN TO THE PETITIONER)
PRESENTLY POSTED AS SUB INSPECTOR,
POLICE STATION, SADAR, DISTRICT
BILASPUR, H.P.
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2
5. SH. PRITAM SINGH SON OF
(NOT KNOWN TO THE PETITIONER)
.
PRESENTLY POSTED AS ASI,
POLICE STATION, SADAR, DISTRICT
BLASPUR, H.P.
6. PERVAZ SON OF RAZAQ MOHMAD,
CONSTABLE C/O OFFICE OF
SUPERINTENDENT OF POLICE,
BILASPUR, HIMACHAL PRADESH.
7. SEHNAJ SON OF (NOT KNOWN TO
THE PETITIONER), C/O OFFICE OF
SUPERINTENDENT OF POLICE,
BILASPUR, H.P.
8. SAFI MOHMAD, SON OF ATEH MOHMAD,
RESIDENT OF HOUSE NO. 6, RODA
SECTOR, BILASPUR, H.P. ......RESPONDENTS
(SH.ASHOK SHARMA, ADVOCATE GENERAL
WITH SH. RAJINDER DOGRA,
SENIOR ADDITIONAL ADVOCATE GENERAL,
SH. VINOD THAKUR, SH. SHIV PAL MANHANS,
SH. HEMANSHU MISRA, ADDITIONAL
ADVOCATE GENERALS AND
SH. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERAL,
FOR RESPONDENTS 1 TO 3)
(SH. ASHWANI DHIMAN, ADVOCATE,
FOR RESPONDENTS 4 AND 5)
(SH. MALAY KAUSHAL, ADVOCATE,
FOR RESPONDENTS 6 AND 7)
(SH. SANKET SANKHYAN, ADVOCATE,
FOR RESPONDENT 8)
Reserved On: 31.08.2021
Decided On: 04.09.2021.
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3
This petition coming on for admission after
notice this day, Hon'ble Mr. Justice Tarlok Singh
.
Chauhan, passed the following:
ORDER
The instant petition has been filed for grant of the following reliefs:-
"a. That the respondents No. 1 to 3 may be directed to initiate departmental inquiry against the respondents No. 4 to 7.
b.
r That the respondents may be directed to pay a sum of Rs.10,00,000/- as compensation for physical harassment and torture suffered by the petitioner and treatment charges incurred and also future treatment charges to the petitioner."
2. Briefly stated the facts of the case are that the petitioner is earning his livelihood by plying a Tempo in District Bilaspur, H.P. According to him, one Safi Mohmad got registered an FIR No. 24/2018 dated 23.01.2018, Police Station, Bilaspur, under Sections 363, 366-A IPC, against unknown persons, stating therein that his daughter Ms. 'A' was missing.
3. It is averred that subsequently the name of the petitioner was falsely roped at the instance of respondents No. 6 and 7 on the basis of the telephonic call ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 4 which is alleged to have been made from the phone of the petitioner to the missing daughter of respondent No.8.
.
4. The petitioner was arrested on 23.01.2018 and subsequently sent to police custody. It is further averred that while in police custody, the petitioner was badly beaten up by respondents No. 4 to 7, who were working in the Police Department at Bilaspur.
5. The petitioner after being examined at Regional Hospital, Bilaspur, on 05.02.2018 was referred to the IGMC, Shimla, where it was found that the heart-beat of the petitioner was reduced to 15% and one valve of heart had been damaged, but the learned Magistrate did not take any action against respondents No.4 to 7
6. On these averments, the petitioner has alleged that on account of maltreatment on the part of the respondents, he has suffered heart injury and has developed breathing problem and, therefore, he should be compensated for the same by directing the respondents to pay a sum of Rs.10,00,000/- to him towards compensation.
7. Respondents No. 1 to 7 have filed their reply wherein it is averred that the petitioner had been arrested on the basis of the evidence collected during investigation ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 5 along with call details record and on the basis of the statements made by the parents of Ms. 'A'. Moreover, the .
parents of the victim have handed over a compromise deed made in Police Post, City Bilaspur, in which the petitioner himself made a statement that he would neither meet nor make any call to Ms. 'A'. The factum of having got the petitioner medically examined has not been denied, however, the allegations of beating have been specifically denied. The respondents have also placed on record the copy of the affidavits to establish that the petitioner has solemnized marriage with Ms. 'A'.
8. Respondents No. 6 and 7 have also filed separate individual replies. The crux whereof is to the effect that they have un-necessarily been implicated as parties as at no point of time they were associated with the investigation of the FIR.
9. For completion of facts, it needs to be noticed that this Court on 14.06.2019 passed the following order:-
"Reply to the writ petition on behalf of respondents No.1 to 7 is on record. However, according to Mr. Dhiman learned counsel, since he has now been engaged by respondents No.4 and 5, whereas, Mr. Malay Kaushal, Advocate, for respondents No. 6 and ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 6 7, therefore, according to them, they will check that supplementary reply is required to be filed or .
not. If it is required, be filed within four weeks.
Rejoinder is stated to have been filed in the Registry during the course of the day. The same be placed on record, if in order."
10. It is thereafter that supplementary reply has been filed on behalf of respondent No.5, the Investigating Officer, wherein it is averred that the petitioner was arrested on 28.01.2018 and not 23.01.2018, as there was sufficient evidence against him for commission of the offence. The petitioner was produced before the Medical Officer, Regional Hospital, Bilaspur, within stipulated period and his Medico Legal Certificate was obtained. No injury was found on his person. The investigation of the case was then handed over to another I.O. Sub Inspector on the directions of the Additional Superintendent of Police, Bilaspur and further investigation was carried out by the said I.O. and he also got the petitioner medically examined and even on such examination, no injury was found on his person. Copies of the MLC have been attached as Annexures R-5-B to R-5-G. On 04.02.2018, the police investigation was again handed over to respondent No. 5.
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 711. To similar effect is the supplementary affidavit filed on behalf of respondent No.4, who was posted as Sub .
Inspector, Police Station, Sadar, at the relevant time. She too has reiterated the version put-forth by respondent No.5.
12. We have heard the learned counsel for the parties and gone through the material placed on record, more particularly, the records of the investigation of this case. r
13. At the outset, it needs to be observed that "nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights".
(Kishore Singh Ravinder Dev etc. versus State of Rajasthan AIR 1981 SC 625).
14. Dr. Martin Luther King had observed that "injustice anywhere is a threat to justice everywhere" and these golden words were thereafter reiterated by the Hon'ble Supreme Court in Kishore Singh Ravinder Dev's case (supra).
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 815. Justice R.K.Abichandani in his Article relating to custodial violence while referring to 'Custody' had observed .
as under:-
"Custody The very idea of a human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty - an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritic thinking."
16. In the same Article, he has referred to 'The Universal and Constitutional Concern' which reads thus:-
"The Universal Concern (1) The Universal Declaration of Human Rights 1948, adopted and proclaimed by the General Assembly Resolution 217A(III) of 10th December, 1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Article 1 ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 9 proclaimed that all human beings are born free and equal, in dignity and rights. In Article 3 it proclaimed .
that everyone has the right to life, liberty and security of person, and in Article 5 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The presumption of innocence of a person charged with a penal offence until proved guilty as contained in Article 11(a) is meant to insulate him against any high-handed treatment by the authorities dealing with him in the matter. r (2) Article 7 of the International Covenant on civil and Political Rights, 1966 adopted by the General Assembly resolution dated 16th December, 1966 covenanted that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Under Article 10 of the said Covenant all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and the accused persons shall , save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. The minimum guarantees to which everyone charged with a criminal offence, is entitled in full equality covenanted in Art. 14(3), inter-alia, provide that no shall be compelled to testify against himself or to confess guilt, which obviously will rule out use of force of any kind on a person accused of any crime.
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 10(3) The American Convention of Human Rights 1969 which came into force in July, 1978, declares .
under Article 4(1) that every person has the right to have his life respected and this right shall be protected by law. Under Article 5, the right of every person to have his physical, mental, and moral integrity respected is recognized and it is covenanted between the States who are parties to this convention that no one shall be subject to torture or to cruel, inhuman, or degrading punishment or treatment and that all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
Right to human treatment recognized by Article 5 cannot be suspended even in time of war, public danger, or other emergency situation, as declared in Article 27 of this Convention.
VI. The Constitutional Concern Respect for human dignity is thus not a matter for any deep study in axiology for an estimate of comparative values in ethical, social or an aesthetic problem but a matter of acknowledging a simple truth already recognized by our national document when its opening chant exudes the cultural nobility of a fraternity that assures the dignity of the individual. The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 11 meant to protect human dignity and shun barbaric approaches. This is why no person accused of any .
offence shall be compelled to be a witness against himself [Art.20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice [Art. 22(1), there is prohibition of traffic in human beings and forced labour (Art. 23), and, above all, that mother of all rights, the right to protection of life and personal liberty (Art. 21).
The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in Bandhua Mukti Morcha case. [see (1984)3 SCC 161 & (1991) 4 SCC 417]."
17. The issue of custodial violence was the subject matter of a decision of the Hon'ble Supreme Court in Dr. Rini Johar and another versus State of M.P. and others AIR 2016 SC 2679 wherein the Hon'ble Supreme Court recapitulated the earlier law laid down by it in the following manner:-
"18. In D.K. Basu v. State of W.B.(1997) 1 SCC 416, after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and State of M.P. v. Shyamsunder Trivedi (1995) 4 SCC 262 the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 12 as preventive measures. The said guidelines read as follows:-
.
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the r arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.::: Downloaded on - 31/01/2022 23:00:41 :::CIS 13
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the .
police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 14(8) The arrestee should be subjected to medical examination by a trained doctor every .
48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."
18. Late Mr. Justice V.R.Krishna Iyer in 'Random Reflections' had said:-
"Policing, like justicing, has therefore to be at the service of the people commanding the credibility of the community at large without fear or favour, ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 15 affection or ill-will. Independence and accountability with commitment to the Rule of law, are as much the .
non-negotiable qualities of the invigilating, investigating police force of the 'robed brethern' on the bench. If the investigative process fails, if the police presence to guard Law and Order is not functionally successful, the adjudicatory apparatus collapses and our adversarial system of justice becomes dysfunctional. The safety of society, sans police integrity, accountability, transparency and efficiency, suffers illusion and unreality."
19. The legal position was summed up by three Judge Bench decision of the Hon'ble Supreme Court in a fairly recent decision in Dr. Ashwani Kumar versus Union of India and another, (2020) 13 SCC 585, wherein while dealing with the right to life and issue of custodial torture, it was observed as under:-
"4.The applicant predicating his case on the right to life and liberty and judgments of this Court had argued that custodial torture being crime against humanity which directly infracts and violates Article 21 of the Constitution, this Court should invoke and exercise jurisdiction under Articles 141 and 142 of the Constitution for the protection and advancement of human dignity, a core and non- negotiable constitutional right. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 custodial torture and violence was described as a wound inflicted on the ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 16 soul, so painful and paralysing that it engenders fear, rage, hatred and despair, and denigrates the .
individual. In Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494, this Court had observed that the prisoners have enforceable liberties, though devalued but never demonetised and, therefore, it is within the jurisdictional reach and range of this Court's writ to deal with prison and police caprice and cruelty. Similarly, in Francis Coralie Mullin v.
Administrator, Union Territory of Delhi and Others(1981) 1 SCC 608, this Court had observed that torture in any form is inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is prohibited by Article 21 of the Constitution, for no law authorises and no procedure permits torture or cruelty, inhuman or degrading treatment. Reference was made to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights which prohibits torture in all forms in absolute terms. Recently, in K.S. Puttaswamy (Privacy-9 J.) and Another v. Union of India and Others (2017) 10 SCC 1 this Court had once again emphased on the right to human dignity which, first and foremost, means the dignity of each human being 'as a human being'. When human dignity in a person's life is infringed and physical or mental welfare is negated and harmed, the Court would intervene to protect and safeguard constitutional values. Reference was also made to the decision in Romila Thapar and Others v. Union of India and ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 17 Others (2018) 10 SCC 753 claiming that despite existing law and repeated judicial decisions, .
custodial torture still remains rampant and widespread in India. Our attention was drawn to the report of Asian Centre for Human Rights which was based, inter alia, on the information and data furnished by the Government of India in Parliament, acknowledging 1674 custodial deaths, including 1530 deaths in judicial custody and 144 deaths in police custody during the period 1 st April 2017 to 28th February 2018. India has consistently and unequivocally condemned and deprecated custodial torture at international forums and has signed the UN Convention but the Government's reluctance to ratify the UN Convention, which envisages a comprehensive and standalone legislation, it was argued, is baffling and unintelligible. Indian statutory law at present is not in harmony and falls short on several accounts, both procedurally and substantively, with the UN Convention and, thus, there is an urgent and immediate need for an all- embracing standalone enactment based on the UN Convention. Articles 51(c) and 253 of the Constitution underscore the 'constitutional imperative' of aligning domestic laws with international law and obligations. The legislation as prayed, it was submitted, would fulfil the constitutional obligations of the Government of India and the constitutional goals which the Government ought to achieve. Accordingly, the directions as prayed for would not entrench upon Parliament's ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 18 domain to enact laws as they directly relate to the protection and preservation of human rights. The .
directions are justified and necessary in view of the delay and inaction in enacting the law, notwithstanding the recommendations made by the National Human Rights Commission, report of the Law Commission of India in October 2017, and report of the Select Committee of Parliament dated 2-12-2010 and repeated commitments made by the Indian Government. Reference was made to Tehseen S. Poonawalla v. Union of India and Others (2018) 9 SCC 501 wherein this Court had highlighted the need for enactment of a suitable legislation to deal with mob violence/lynching in the country. Reliance was placed on judgments of this Court in Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241, Vineet Narain and Others v. Union of India and Another (1998) 1 SCC 226, Destruction of Public and Private Properties, In RE v. State of Andhra Pradesh and Others (2009) 5 SCC 212, Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244, State of West Bengal and Others v. Sampat Lal and Others (1985) 1 SCC 317, K. Veeraswami v. Union of India and Others (1991) 3 SCC 655 and Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Others (1991) 4 SCC
406. While referring to Mahender Chawla and Others v. Union of India and Others (2019) 14 SCC 615, and other decisions including Tehseen S. Poonawalla (supra), it was argued that this Court has not flinched from suggesting, recommending, advising, ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 19 guiding and directing the Government of India with respect to statutory enactments. It was submitted .
that the delay and inaction in implementing the constitutional obligation relates back to the year 1997 when India had signed the UN Convention, but the Government has failed to enact a comprehensive legislation despite commitments and recommendations made and noticed above. This, it was submitted, reflects unreasonable and unacceptable conduct of the Government in shielding infringement of Article 21 and violates Article 14 of the Constitution of India. Thus, the Court may issue directions to the Union of India to enact a law dealing with custodial torture in terms of the U.N. Convention."
20. Thus, what can be taken to be settled is that, no doubt, the police is under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with the view to solve the crime. Ends cannot justify the means.
21. The interrogation and investigation into a crime should be in a true sense, purposeful to make the investigation effective. By torturing a person and using ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 20 third degree method, the police would be accomplicing behind the closed doors what the demands of our legal .
order forbid. No society can permit it.
22. The moot question to be determined in this case is whether the petitioner has unnecessarily been arraigned as an accused and thereafter arrested without sufficient cause and whether the petitioner has been tortured in police custody, as alleged?
23. Now, adverting to the first contention of the petitioner that there was no reasonable basis or ground for the respondents to have arrested the petitioner.
24. We may notice that the FIR in the instant case was registered on 23.01.2018 that too against unknown persons. Record reveals that the statements of the parents of Ms 'A' were recorded under Sections 161 Cr.P.C. wherein they clearly stated their apprehension and doubt regarding the involvement of the petitioner and also handed over the compromise deed, as referred to above.
25. The police had recorded the supplementary statement of the mother of the victim under Section 161 Cr.P.C on 27.01.2018 which reads as under:-
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 21"Stated that I am a resident of afore mentioned address. I am a housewife. My husband Safi .
Mohammad is a vegetable vender. I have a son namely Mohammad Ashrad and a daughter namely Aafreen aged 17 years. She is a student of first year in Abhilasi Nursing College. She is pursuing B.Sc nursing from the college. She had come to home being vacation in the college. We engaged her to Sonu, S/o Mirja, R/o Bahyat, PS and Tehsil Sadar, District Bilaspur and the date 25/27.01.2018 was fixed as the auspicious moment for marriage. On 22.01.2018, I accompanied with my mother-in-law and daughter Aafreen visited market for purchasing wedding clothes etc. After having finished the purchasing at about 4/4.30 PM, we returned and reached home at about 6/7 o'clock. My daughter was agreed for marriage. At about 8.00PM, my husband took away the mobile phone bearing No. 82193- 78804 of my daughter and kept the same with him, which phone has already been produced to the police. After having dinner, I along with my daughter slept together in the room. My husband slept in a separate room. In the morning, at about 5.30AM, when I saw my daughter is missing from bed, I brought it to the notice of my husband. We almost searched everywhere inside the house including wash-room, but Aafreen could not be found. My mother-in-law also told that her mobile phone is missing from her room. My husband made a call over the mobile phone number 86796-81066 of my mother-in-law and the same was found ringing over ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 22 the washing machine near gate. Perhaps, my daughter had made a call from this mobile. Mobile .
phones of my daughter as well as mother-in-law have already been handed over to the police. My husband and I have strong belief that Sanjeev Kumar, S/o Sh.
Ram Lal, Ward No.11, Lakhanpur, by inciting her eloped my daughter Aafreen with the intention of marriage. It is so because, about five month ago, my daughter had made a call over mobile No. 82192- 75336 from my mobile phone, whereupon, I inquired from my daughter, who disclosed that he had made call to Sanjeev Kumar resident of Lakhanpur. On suspicion, I lodged the complaint at Police Post, City Bilaspur. As a result of it, Sanjeev Kumar and I were summoned by police to the police post. Sanjeev Kumar had admitted his fault and also tendered the written apology. The photocopy of the same has been produced to the police. My husband and I have also produced the photocopy of her matriculation certificate to the police."
26. Whereas, the supplementary statement of father of the victim, Shri Safi Mohmad, recorded under Section 161 Cr.P.C. is as under:-
"Corroborating my earlier statement and complaint letter, further stated that I am a vegetable vendor. I have a son Mohammad Ashrad and a daughter Aafreen aged about 17 years, who was pursuing B.Sc Nursing from Abhilashi Nursing College, Ner Chowk at Sunder Nagar. She had come to home ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 23 being vacations in the College. I had fixed marriage of my daughter with Sonu Son of Mirja R/O Bahyat, .
Bilaspur. An auspicious moment for the marriage was fixed for 25/27.01.2018. On 22.01.2018, my daughter accompanied with her mother and Aunt (Chachi) visited the market for purchasing of wedding clothes etc. After purchasing, at about 4:00/04:30 PM, they come back to home at about 06:00/07:00 PM. My daughter was agreed for the marriage. At 08:00 PM, mobile phone bearing No. 82193 78804 pertaining to my daughter has been handed over to the Police {SIC}. After having dinner, my daughter and my wife slept together in a same room. In the morning, at 05:30 AM, my wife noticed that Aafreen was not on the bed. We searched her everywhere, including toilet in the house but could not be traced out. My mother told that her mobile phone is not traceable. When I make a call on mobile No. 86796 81066, the same was found ringing near the washing machine. It might be possible that my daughter might have used the same, as the said mobile phone belongs to the grandmother of Aafreen. I have a firm belief that Sanjeev Kumar S/O Ram Pal, Ward No. 11, Lakhanpur by enticing her has eloped my daughter for marriage. We came to know, five months earlier about the love affair with Sanjeev and my daughter used to call him from my mobile phone, and as such, I had noticed mobile No. 82192 75336 dialed from my phone and on asking her, she revealed that she had made this call to Sanjeev Kumar resident of ::: Downloaded on - 31/01/2022 23:00:41 :::CIS 24 Lakhanpur. I along with my wife had made complaint to the Police Chowki, City, regarding the incident.
.
Police summoned us and Sanjeev Kumar to the Police Chowki, where Sanjeev Kumar accepted his mistake and reduced in writing the apology letter.
My daughter is presently 17 years old and will attain age of 18 on 12.02.2018. Today, I have produced the photocopy of matriculation certificate of my daughter.
Statement has been read over and is correct"
27. Thus, on the basis of the aforesaid statements, it cannot be said that prima facie there was no material for the police to have arraigned and thereafter arrested the petitioner.
28. That apart, the respondents had by this time collected the CDR of the calls which prima facie established that the petitioner and Ms. 'A' were in constant touch during the relevant period.
29. Noticeably, the petitioner had been remanded to police custody by lawful orders of the Magistrate which admittedly the petitioner did not choose to assail before the higher Court.
::: Downloaded on - 31/01/2022 23:00:41 :::CIS 2530. Therefore, in the totality of facts and circumstances of this case, it cannot be held that the .
petitioner was arrested without any justifiable ground.
31. As regards the second contention raised by the petitioner regarding torture in police custody, we really do not find any merit in such contention for want of any material in support of such contention.
32. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 04th September, 2021.
(krt) ::: Downloaded on - 31/01/2022 23:00:41 :::CIS