Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2006 (2) TMI 699

..... jay Siwach, Sandeep Sharma and Pradeep Dahiya, Advs. JUDGMENT R.V. Raveendran, J. 1. An undated letter from the petitioner, received by this Court on 19.11.1998, alleging illegal detention, custodial torture and harassment to family members was registered as a writ petition under Article 32 of the Constitution of India. The State of Haryana and its Director General of Police, were arrayed as respondents 1 and 2 and the six Police Officers referred to in the letter-petition were arrayed as respondent Nos.3 to 8. PROLOGUE (According to Police) 2. On 10.3.1998, at about 10 a.m. Dharam Singh ASI, Police Post Dhamtan Saheb (Narwana Tehsil, Jind District), along with Police constables (Ramesh Chand, Jaldhir Singh and Baljit Singh), while patrolling near Dhamtan Saheb Bus Stand, received 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ns. 2.3 The Police continued with their inquiries and in July, 1998, ASI Satya Narayan and other Police Officers of Dhamtan Saheb Police Post again tried to ascertain his whereabouts by making enquiries with the petitioner and his relatives/friends. The Letter (re : alleged torture and illegal detention) 3. The petitioner sent an undated letter to this Court (received on 19.11.1998) wherein he alleged that ASI Dharam Singh, In- charge of Dhamtan Saheb Police Post, along with some Police Officers, came to his house on 10.3.1998 at about 11 a.m, to enquire about the whereabouts of his son Joginder; and that when he informed them that he was not aware of it, they started beating him. Thereafter, the Police took him, his wife and two minor daughters forcibly to the Police Post, 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 an .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... the Police Post everyday in the morning and evening. 3.2 The Petitioner alleged that his friends and relatives who wanted to meet him, when he was being illegally detained, were not permitted to meet him and they were also tortured. He also alleged that Munshi (HC) of Dhamtan Police Post was demanding money from him. 3.3 He alleged that in view of such torture, he was forced to leave his house and remain outside. He prayed for a direction to the Police to stop the atrocities and torture. He sought compensation for himself and his wife and daughters for the social, physical and financial loss, and return of his licensed gun, gold ornaments and other belongings. He also prayed for a thorough inquiry into the atrocities and torture committed by the Police and imposition 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 o .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... a report dated 10.3.2001 stating that the allegations of the petitioner relating to police torture, illegal detention, harassment to wife and daughters, and removal of cash/licensed weapon/jewellery were not substantiated. The said report, however, confirmed that petitioner and his brother were called to the Police Station couple of times for interrogation regarding the whereabouts of Joginder. Not being satisfied with the said report, this Court on 17.10.2001 directed the CBI to inquire into the matter with reference to the allegations made in the letter as also the subsequent affidavits filed by the petitioner and his relatives and the reply affidavits filed by the respondents. 5.1 The CBI held a preliminary inquiry and submitted the report of the Inquiry 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 wer .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... Preliminary) Inquiry Report of CBI : 6. The findings contained in the report of CBI are summarized below: : However, in the writ petition filed by Rattan Singh and petitioner on 24.3.1998 in the Punjab & Haryana High Court, it is alleged that petitioner and Rattan Singh were kept in illegal confinement from 10.3.1998 to 13.3.1998 and again from 15.3.1998 to 16.3.1998. There is no allegation of any torture at all. They only alleged that they apprehended harassment and torture by Police. The report further shows that petitioner was involved in several criminal cases from 1972 and his son Joginder was involved in more number of criminal cases from the year 1991, as detailed below :- Cases in respect of petitioner : 1. FIR No. 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. Sad .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... , (b) incident on 25.1.2001 when Joginder escaped from Police custody when he was being taken to court, and (c) incident on 13/14.2.2001 when Joginder was suspected of killing two persons at Tohana. ii) Though there is some evidence of illegal detention and beating of petitioner and his relatives, the allegations of custodial torture are exaggerated and to a certain extent false. iii) There is no medical evidence nor any visible scars/ marks/disability resulting from the alleged torture, either in the case of petitioner or his family members/relatives. iv) The complaints of petitioner and his relatives are against different police officers of different police stations (totally 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 t .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... y ASI Dharam Singh, and (d) Licensed gun, cartridges, arms licence and gold ornaments being illegally taken by ASI Dharam Singh on 10.3.1998. The CBI report finds that none of these four allegations is substantiated. 9.5 In the letter petition, the petitioner alleged that he had told police that he was not on good terms with his son Joginder Singh, that he had already disowned him and the family was having no connection with Joginder. He even published a notice in 'Dainik Tribune' in August, 1998 stating that he has no connection with his son Joginder. In his affidavit dated 31.8.2001 (filed in this case on 1.10.2001), petitioner reiterates that he has disowned 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 hi .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... liberty guaranteed under Article 21, to begin with, only the following reliefs were being granted in writ petitions under Article 32 or 226: a) direction to set at liberty the person detained, if the complaint was one of illegal detention. b) direction to the concerned Government to hold an inquiry and take action against the officers responsible for the violation. c) If the enquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation. Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 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 procedur .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... tal right of moving the court for enforcement of his fundamental right, the court cannot give him any relief." Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. This Court clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. 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 inq .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... olice Headquarters (1989)4SCC730. 15. The law was crystallized in Nilabati Behera v. State of Orissa 1993CriLJ2899. In that case, the deceased was arrested by the police, handcuffed and kept in a police custody. The next day, his dead-body was found on a railway track. This Court awarded compensation to the mother of the deceased. J.S. Verma J., (as he then was) spelt out the following principles :- Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. 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 liabi .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... rieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure. 18. This takes us to the next question as to whether compensation should be awarded under Article 32/226, for every violation of Article 21 where illegal detention or custodial violence is alleged. Whether compensation should be awarded for every violation of Article 21 19. In M.C. Mehta v. Union of India [1987]1SCR819 , a Constitution Bench of this Court while considering the question whether 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 committe .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... Court also drew attention to the following aspect: There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said 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 rea .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... not direct the payment of any compensation to them. [Emphasis supplied] 20. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine 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 l .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... often than not even pervert the truth to save their colleagues.... The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case..., often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... h and scientific investigation methods. b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation. c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention. d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes. e) Computerization, video-recording, and modern methods of records 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 hum .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||