9911796707
TMI Blog2006 (2) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... eived information that one Joginder Singh (son of petitioner) and his associates were conspiring in his house, to apply pressure on some tender-bidders. When the police party proceeded towards Joginder Singh's house, they saw two young men coming from the opposite side, on a motorcycle. On seeing the Police party, the motorcycle suddenly turned back. On suspicion, the Police party gave chase and stopped the motorcycle near a petrol-pump. The ASI asked the motorcyclist and the pillion-rider to identify themselves. The motorcyclist gave his name as Amrik Singh. The pillion-rider gave his name as Joginder Singh, a Palledar at Tohana. When the ASI asked Joginder Singh as to whether he was the same Joginder who had jumped parole in a case, Joginder Singh started running. When the Police party chased him, Joginder Singh turned back, whipped out a pistol and fired at them. Baljit Singh, one of the Constables, was hit and collapsed. In the ensuing confusion, both Amrik Singh and Joginder Singh escaped. The injured Constable succumbed to the bullet injuries. In this connection, FIR No. 112 dated 10.3.1998 under Section 302/307/352/186 IPC was registered in P.S., Garhi, against Joginder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, through the bazaar. He was beaten with sticks on the way. When they reached the Police Post, K.P. Singh, Superintendent of Police as also the Deputy Superintendent of Police, Narwana, were present. When ASI Dharam Singh informed them that the persons brought were the father, mother and sisters of Joginder, the S.P. directed that they may be brought to 'correct mental attitude'. The ASI took him inside and beat him for about 10 minutes and brought him back before the SP again. By then, his wife and daughters were made to sit in an uncomfortable posture (as students are made to sit in schools by way of punishment). When the petitioner stated that he was not aware of his son's whereabouts, the S.P. became furious and ordered his men to remove his moustache, whereupon Dharam Singh sat on his chest (with three policemen pressing his hands and feet) and plucked his moustache. Again, they started beating him, searched his pockets and took away ₹ 2,350 which he was carrying. Then the police took him back to his house and ransacked the house. ASI Dharam Singh broke open the lock of his trunk and seized his licensed gun, some cartridges and Arms licence, as also some je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of punishment to those who were responsible. 3.4 The letter of the petitioner was registered as a writ petition and Rule was issued on 11.1.1999. On 13.9.2000, this Court appointed Mr. S. Muralidhar, Advocate, as Amicus Curiae, to assist the Court. The alleged Second Round of Harassment : 4. Joginder was arrested in June, 1999 by Punjab Police. Before his arrest, he was allegedly involved in two robberies (registered on 19.3.1999 with PS, City Yamunanagar, and on 21.3.1999 with PS, Indri, Karnal District). On 25.1.2001, when he was being taken to Ferozepur Court from Ambala jail, Joginder escaped from police custody. It is further alleged by the police that on 13.2.2001, Joginder and his associates murdered two residents of Tohana. 4.1 According to Police, on 29.1.2001, the SHO, Police Station, Garhi along with other police officials visited the house of petitioner in search of Joginder who had escaped from custody. Again in February, 2001 after the double murder, the S.I. of Police Station, Tohana along with the ASI in charge of Dhamtan Saheb Police Post, and other Police officials visited petitioner's house in search of Joginder. In that connection, petitioner and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer (A.K. Ohri, ASP) under cover of its letter dated 22.7.2002. The findings in the said report are arrived at, on the basis of the allegations made in the affidavits filed before this Court, and the statements made by the petitioner, his family members and others (nearly 100 witnesses) before the Inquiry Officer. The CBI has concluded that some of the allegations of the petitioner were substantiated while several others were not substantiated. 5.2 On 16.9.2002, this Court directed that the State Government to take appropriate action on the report of the CBI. In pursuance of it, an FIR was lodged in Garhi Police Station, Jind District, (FIR No. 152 dated 17.10.2002 under Sections 323, 342, 343, 365 and 384 IPC) on the basis of the CBI report, naming the following 10 officers: 1. ASI Dharam Singh (by then S.I.) 2. ASI Satyanarain 238/Jind 3. HC Om Parkash No. 102/Jind (by then ASI) 4. Const. Dilbag Singh, No. 59/Jind 5. HC Balbir Singh No. 450/Jind 6. Const. Sudarshan Kumar No. 811/Jind 7. Const. Mukesh Kumar No. 99/Jind 8. Const. Dhoop Singh No. 704/Jind 9. Const. Dharam Pal No. 4/Jind 10. Const. Mohinder Singh 825/Jind (by then HC) The Deputy Superintend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 275 dt. 13.10.72 Under Section 61/1/14 Excise Act P.S. Sadar Kaithal. FIR No. 59 dt. 13.2.78 Under Section 379 PC PS Sadar Kaithal. 3. FIR No. 231 dt. 22.7.85 Under Section 25/54/59 Arms Act P.S. Sadar Kaithal. 4. FIR No. 141 dt. 20.7.86 Under Section 61/1/14 Excise Act P.S. Sadar Narwana. 5. FIR No. 142 dt. 25.4.91 Under Section 25/54/59 Arms Act read with Section 5 TADA Act P.S. Sadar Kaithal. 6. FIR No. 147 dt. 25.4.91 Under Section 285/336 I.P.C. P.S. Sadar Kaithal. 7. FIR No. 219 dt. 17.7.91 Under Section 324/323/506/34 IPC PS Sadar Kaithal. 8. FIR No. 367 dt. 23.11.94 Under Section 323/324/148/149 IPC PS Garhi. 9. FIR No. 277 dt. 25.6.2001 Under Section 332/353/225/186/511 IPC PS City, Jind. (Note: The petitioner was convicted only in the first case. He was acquitted in all other cases.) Cases in respect of Joginder Singh: a) FIR No. 219 dated 17.7.91 Under Section 323/324/506/34 IPC PS Sadar, Kaithal. b) FIR No. 395 dated 5.7.97 Under Section 324/34 IPC PS Civil Lines, Hissar. c) FIR No. 242 dated 7.9.96 Under Section 307/120B IPC & 25/54/59 Arms Act, PS City, Tohana. d) FIR No. 245 dated 8.9.96 Under Section 25/54/59 Arms Act, PS City, Tohana. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconnected with each other) in regard to incidents at different points of time, in March, 1998, April, 1998, July, 1998, January, 2001, February, 2001 and June, 2001. v) The case of Petitioner is that he and/or his relatives were harassed, illegally confined, or tortured, to find out the whereabouts of Joginder. The police contend that the allegations by petitioner and his relatives, are by way of a well conceived plot to prevent police investigation in regard to misdeeds by Joginder and his associates and to pre-empt any action by the police against Joginder or his family members. 9. We will next refer to the factors which indicate that petitioner and his relatives have made false and exaggerated claims in regard to illegal detention, torture etc., apart from suppressing material facts. 9.1 In his letter to this Court, petitioner has alleged that he was illegally confined by the Police for 11 days from 10.3.1998 (one day at Dhamtan Saheb Police Post and 10 days at Police Station, Garhi). Rattan Singh (brother in law of petitioner) in his affidavit dated 13.5.1999 alleges that he was illegally detained for 2 days and again for 4 days. But in the writ petition filed by petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his son Joginder and alleges that he did not have any contact with him; and that in spite of it, the police were continuously harassing him and his family members seeking information about the whereabouts of Joginder and raiding his house and his relatives' houses to find out whether Joginder was hiding there. But the CBI inquiry has categorically found that petitioner and his family members had not disowned Joginder. They were regularly meeting Joginder when he was in custody. Petitioner was traveling to meet his son Joginder whenever he was being produced in courts, in respect of different cases. In fact petitioner received money from the All India Food & Allied Workers Palledar Union, Tohana (Kacchi Union) of which he was a member, to meet the expenses of the travel (to meet his son) on 25.10.2000, 25.11.2000, 21.12.2000, 13.1.2001, 16.1.2001, 23.1.2001, 9.10.2001, 10.10.2001, 11.10.2001, 15.10.2001, 25.10.2001, 7.11.2001, 17.11.2001 and 20.11.2001. Further, the jail records showed that Joginder was met by petitioner's wife on 26.8.1999, petitioner's brother Narsi on 17.11.1999, 18.11.1999 and 1.3.2002, petitioner's uncle Rama on 20.11.1999, and petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades. 13. In the Bhagalpur Blinding case [Khatri (II) v. State of Bihar 1981CriLJ597], Bhagwati J., (as he then was), speaking for the Bench, posed the following question while considering the 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. The question was expanded in a subsequent order in Bhagalpur Blinding case [Khatri (IV) v. State of Bihar [1981]3SCR145 ), thus: 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This 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. 14. In Rudul Sah v. State of Bihar 1983CriLJ1644 , the petitioner therein approached this Court under Article 32 of the Constitution alleging that though he was acquitted by the Sessions Court on 3.6.1968, he was released from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention. This Court while recognizing that Article 32 cannot be used as a subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. 16. In D.K. Basu v. State of West Bengal 1997CriLJ743 , this Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. This Court held: Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free socie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether compensation can be awarded in a petition under Article 32, observed thus: We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself. [Emphasis supplied] In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble 2003CriLJ4548 and Munshi Singh Gautam v. State of M.P. 2005CriLJ320 , this Court warned against non-genuine claims: But at the same time there seems to be a disturbing tren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture. 21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. Improving the present situation 23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action. f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary. The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc. CONCLUSION: 25. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
