CWP no.18326 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.18326 of 2009 Date of decision: January 28, 2011 Court on its own Motion v. State of Punjab CORAM:- HON'BLE MR JUSTICE RANJAN GOGOI, ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ADARSH KUMAR GOEL Present:- Mr. Amrinder Singh, Advocate for legal representatives of deceased. the deceased. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Vikram Sharda, Advocate (Amicus Curiae). Mr. Naresh Kaushik, Advocate for ASI Ajit Singh. Mr. A.S.Sullar, Advocate for Inspector Gurmukh Singh. Mr. Rupinder Khosla, Addl.A.G.Punjab. Mr. Anmol Rattan Sidhu, Sr.Advocate with Mr. O.S.Batalvi, Advocate for CBI. 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? 1. Question for consideration is whether intervention of this Court is called for in the matter of custodial death of one Roor Singh on September 5, 2009 in Police Station, Dhilwan, District Kapurthala in mysterious circumstances. 2. This Court took suo motu cognizance of a news item appearing in Hindustan times dated 27.11.2009 highlighting that SHO of Police Station was found guilty in a judicial enquiry for custodial death on account of poisoning in Police Station. It was also mentioned that the District Administration was trying to shield the guilty policemen under political pressure. The SHO was earlier placed under suspension but was reinstated. This Court issued notice and also appointed an Amicus Curiae. On 12.1.2010, statement was made by the learned Additional Advocate General, Punjab that investigation which was earlier being conducted by the officer of the rank of SP will be now handed over to an officer of the rank of 1 CWP no.18326 of 2009 IGP (Crimes) and concerned SHO will be transferred to a far off district on non public duties so that investigation is objective. Report dated 16.11.2009 was submitted by Shri Jatinderpal Singh, Judicial Magistrate, Ist Class, Kapurthala under section 174 (1A) Cr.PC holding that death of the deceased took place when he was in police custody and not in hospital which was the stand taken by the concerned police officers. It was further concluded that death was unnatural. This report led to registration of FIR on 1.12.2009 being FIR No.61 under sections 304, 341, 342, 201, 120B IPC Police Station Dhilwan, District Kapurthala, Punjab. However, the report did not identify the role of persons responsible for the death. The report was based on statements of relatives of the deceased and other villagers conversant with the facts. Statements of concerned police officers were also recorded. The IGP (Crime) gave his report dated 2.8.2010. In the said report, ASI Ajit Singh, HC Manjit Singh and HC Gurnam Singh were indicted. 3. HC Manjit Singh and HC Gurnam Singh were arrested on 10.10.2010 while SI Gurmukh Singh and ASI Ajit Singh could not be arrested. They have filed anticipatory bails being Criminal Misc.Nos.25986 and 31456 of 2010 which are being disposed of by a separate order. They have also been placed under suspension. Conclusions in the report of the IGP can be summed up as under:- i) The deceased was in illegal custody from 4.9.2009 till his formal arrest on 5.9.2009; ii) Death of Roor Singh was due to organic phosphorous poison while in police custody; iii) On account of illegal arrest of deceased Roor Singh, offence under section 342 IPC was made out against the police officers/officials. The SHO intentionally concealed the evidence about arrest of Roor Singh on 4.9.2009 from which offence under section 201 IPC was 2 CWP no.18326 of 2009 made out. The police officials tried to give statement and they had no grudge against the deceased. While possibility of some police official having kept insecticides in police station was not ruled out which resulted in death. The deceased had five marriageable daughters and due to this, he may have consumed poison and thus offence under section 306 IPC was made out. iv) Possibility was not ruled out that some police official kept insecticides in police station which came to the hands of the deceased Roor Singh who may have finished his life. v) There was failure of duty on the part of SI Gurmukh Singh in checking up the accused in the lock up before keeping him in custody as per direction of the Hon’ble Supreme Court in D.K.Basu vs. State of West Bengal, AIR 1997 SC 610. There was failure on the part of ASI Ajit Singh to keep watch on every person who met the deceased as per direction in D.K.Basu. There was failure of duty on the part of Head Munshi HC Manjit Singh to search the accused before sending him in police custody. There was failure of duty on the part of Night Munsi HC Gurnam Singh to search the accused at the time of taking the charge of the person in the lock up. Accordingly, offences under sections 342, 306, 201 IPC were made out. 4. Notice was also issued to the CBI. A sum of Rs.1 lac was awarded as interim compensation vide order dated 17.3.2010 with the observation that death being in police custody, responsibility of the police was not ruled out. 5. We have heard learned Amicus Curiae, learned counsel for the widow of the deceased, learned counsel for the State of Punjab and learned counsel for the CBI. 6. Learned counsel for the widow of the deceased and learned Amicus point out that CBI enquiry is necessary as enquiry report submitted by IGP Crime 3 CWP no.18326 of 2009 was not satisfactory. It has been wrongly presumed that death was suicidal and not homicidal on account of which the Investigating Officer has converted the offence from Section 304 IPC to Section 306 IPC. Approach to be adopted in case of custodial death has to be different. Burden should be on the police officials to show that they were not responsible for causing death. 7. We find merit in the submission. It is patent from the findings of the Judicial Magistrate as well as IGP Crime that the deceased was kept in illegal custody on 4.9.2009 without conducting his medical examination and without recording his arrest. The concerned police officers acted in violation of the directions in D.K.Basu. According to the Judicial Magistrate, the death was unnatural while according to the IGP (Crime), death should be presumed to be suicidal as the deceased had five marriageable daughters and the police officers had no grudge against the deceased. This opinion cannot be accepted as final and is not free from doubt. If the death was suicidal, the police officials who were present in the Police Station could have noticed this fact and taken such a stand. On the contrary, stand of SI Gurmukh Singh who arrested the deceased was that he received telephonic message from MHC Gurnam Singh that condition of the deceased was deteriorating on which he called a doctor and according to the doctor, blood pressure of the deceased had gone down. The doctor administered an injection and advised that the deceased be taken to hospital. He was taken to hospital at 11.30 PM and was put on oxygen where he died. Similar is the stand of HC Gurnam Singh who was on duty at the relevant time and ASI Ajit Singh. The circumstances in which poison was taken, thus, remains a mystery. Prima facie, it is difficult to accept the opinion of the IGP (Crime) that responsibility of the police officers was only of being careless in keeping insecticide which may have been consumed. Thus, inspite of investigation by a very senior officer of the police which took place with the intervention of this Court and in which process almost 4 CWP no.18326 of 2009 one year has been spent, it is difficult to hold that investigation is fair or satisfactory. 8. Death in police custody is a serious matter and it would be unrealistic to expect direct evidence. To uphold the rule of law, image of the police in estimation of public has to be maintained by responsible and satisfactory investigation. While care has to be taken to see that police force is not demoralized by false implication, case of a custodial death cannot be brushed under the carpet, having regard to the acknowledged tendency of suppressing the truth by the concerned police personnel who alone know the circumstances in which custodial death took place. Malady of custodial death has been noticed in 113th report of the Law Commission recommending amendment to the Evidence Act to provide for a presumption against concerned police officers for any injury to a person in custody and also in various judgments. In State of MP v. Shyamsunder Trivedi and others, (1995) 4 SCC 262, it was observed:- “17. The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a “could not care less” attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal. 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, as in the present 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 5 CWP no.18326 of 2009 with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day. 18. In its 4th Report of June 1980, The National Police Commission noticed the prevalence of custodial torture etc. and observed that nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their custody. The Commission noticed with regret that the police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several years and noted with concern the inclination of even some of the supervisory ranks in the police hierarchy to countenance this practice in a bid to achieve quick results by short-cut methods. Though Sections 330 and 331 of the Indian Penal Code make punishable those persons who cause hurt for the purpose of extorting the confession, by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows us, have been very few because the atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. Disturbed by this situation, the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an 6 CWP no.18326 of 2009 alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless, the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. The recommendation, however, we notice with concern, appears to have gone unnoticed and the crime of custodial torture etc. flourishes unabated. Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don’t, we hope that the Government and Legislature would give serious thought to the recommendation of the Law Commission (supra) and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. 9. Again in Munshi Singh Gautam (D) and others v. State of MP, AIR 2005 SC 402, it was observed:- “6. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter. 7. The exaggerated adherence to and insistence upon the 7 CWP no.18326 of 2009 establishment of proof beyond every reasonable doubt by the prosecution, at time even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact- situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. 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 at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilized nation and encourages the men in 'khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading; towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with.” The matter was also considered in Smt.Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and another, AIR 2003 SC 4567. 8 CWP no.18326 of 2009 10. As already observed, in the present case, the police personnel on duty have not given truthful and acceptable version. Their stand of arrest on 5.9.2009 instead of 4.9.2009 has been found to be false. Their version of sudden fall in blood pressure and giving of injection and taking to the hospital where oxygen was administered has been found to be false. Death has been held to be in police custody on account of poison. To close the topic by merely presuming that there could be possibility of suicide, will not, in our view, be fair. 11. Fairness of investigation is part of fair procedure under Article 21. While no one can insist that offence be investigated by a particular agency and normal rule is to allow police agency to investigate an offence, where police personnel are themselves accused and it is prima facie found that credibility of investigation is open to doubt, right of fair procedure may have to be enforced by the court by issuing appropriate direction. In the circumstances, suggestion for CBI investigation has to be accepted. It is necessary to ascertain whether it was a case of suicide or homicide and what was the role of concerned police officers. It is true that CBI investigation can be ordered only in exceptional cases. CBI being a premier agency cannot be expected to handle all cases. It is now no longer in doubt that this Court can direct CBI investigation without the consent of the State for enforcing Article 21 of the Constitution. Recently, a Constitution Bench of the Hon’ble Supreme Court in State of W.B. v. Committee for Protection of Democratic Rights,(2010) 3 SCC 571, considered this question and finally held:- “69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties 9 CWP no.18326 of 2009 of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observations. 12. For the reasons already stated, present is a fit case where CBI should be directed to investigate the matter. Accordingly, we direct CBI to take up the 10 CWP no.18326 of 2009 investigation and conclude the same at the earliest and as far as possible within three months from the date of receipt of a copy of this order and file its final report before the appropriate Court. It is made clear that any observations in this order may not be treated as expression of final opinion on merits. (Ranjan Gogoi) Acting Chief Justice January 28, 2011 (Adarsh Kumar Goel) ‘gs’ Judge 11