IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.249 of 2008 BHOLA DUBEY @ VISWA PRAKASH DWIVEDI Versus STATE OF BIHAR & ORS ----------- For the petitionr: Mr. Ashok Kr. Mishra, Adv. For the State: Mr. Rajeev Kr. Singh, Adv. ---------- 5. 23.04.2009 Under this application the petitioner has approached this Court for relief by way of declaration that he was illegally tortured by police on 3.12.2007 in connection with Bettia Muffasil P.S. Case No.156 of 2007 under Section 302 of the Indian Penal Code and 27 of the Arms Act as well as 3/5 of the Explosive Substances Act and was detained for three days and was produced before the Magistrate and remanded on 5.12.2007. The petitioner contends that during his custody he was tortured and assaulted by police, for which torture and assault, he also claims a compensation of Rs. 5 lakhs, saying that injury had been caused on his left thumb. The petitioner also seeks quashing of criminal proceedings under the said Bettia Mufassil P.S. Case No. 156 of 2007. The petitioner’s counsel has contended that the petitioner is a law abiding citizen and he was illegally and without any basis arrested in that case and was tortured by police and was produced before the Magistrate with inordinate delay of three days, whereas, under law, he was required to be produced before the Magistrate within 24 hours of his arrest. The learned counsel for the petitioner submitted that the petitioner was apprehended without any materials against him - 2 - and he was also assaulted by police and grievous injury was caused on the petitioner. The respondent-State has filed counter affidavit wherein it is stated that the petitioner is a hardened criminal and involved in several cases. In para-14 of the counter affidavit dated 15.7.2008, it is specifically stated that the petitioner is an accused in Bairiya P.S. Case No. 115 of 1994 under Section 341 and 323 of the Indian Penal Code, Bagha P.S. Case No.408 of 1998 under Section 307/34 of the Indian Penal Code and 27 of the Arms Act, Bariya P.S. Case No. 135 of 1999 under Section 394/395 of the Indian Penal Code, Betia P.S. Case No. 374 of 2001 under Section 394 and others Sections of the Indian Penal Code as well as Patiachan P.S. Case No. 452, 380 and other Sections of the Indian Penal Code and 27 of the Explosive Substance Act and 17 of the C.L.A. Act. It is stated that in all these cases, on fining sufficient materials against the accused, charge-sheet was submitted and the petitioner is facing trial. At this stage, the learned counsel for the petitioner submits that he is informed that on 31.3.2008 the petitioner has been acquitted under Bairiya P.S. Case No. 135 of 1999. In para-6 of the counter affidavit dated 4.7.2008, it is stated that on 4.12.2007 vide S.D. entry no.92 at 15 hours (3 P.M.) the officer-in-charge of Bettia Mufassil police station had received information about the petitioner-accused being required in the case, hence he had proceeded with police force for arresting him. Further vide S.D. entry no.100 at 21 hours (9 - 3 - P.M.) on 4.12.2007 the petitioner-accused was arrested and brought to P.S. It was also mentioned in the S.D. entry that in course of arrest, the petitioner-accused had received some injury, for which, he was being given medical treatment. In paras- 8, 9, 11, and 17 of the counter affidavit, it is stated that the petitioner was produced before the Chief Judicial Magistrate on 5.12.2007 and was remanded in the case and thus it is stated that the petitioner was remanded within 24 hours of his arrest. The petitioner has also raised some questions about the arrest and remand in Mufassil P.S. Case No. 156 of 2007, stating that in that case the petitioner was not F.I.R. named accused but charge-sheet had already been submitted earlier and no investigation was pending, but subsequently the petitioner was apprehended and remanded in that case without any material. In reply to this point as mentioned in para-9 of the counter affidavit dated 4.7.2008, the learned counsel for the respondent submits that in Bettia Mufassil P.S. Case No.156 of 2007 one another accused Radhe Shyam Sahni had surrendered before the Chief Judicial Magistrate and 90 days of his custody was going to expire and, therefore, the police had submitted preliminary charge-sheet with respect to him and others so that he will not be able to get bail under Section 167 of the Cr. P.C. due to non-submission of the charge-sheet. So far the petitioner was concerned, the learned counsel for the - 4 - respondent submits that materials were being collected and on conclusion of materials, particularly the confessional statement of the petitioner, when sufficient material appeared against the petitioner, charge-sheet was submitted against him in that case, namely Bettia Muffasil P.S. case No.156 of 2007. It is also submitted that in that case, the petitioner’s prayer for bail was heard on merit by the learned Chief Judicial Magistrate and the prayer for bail has been rejected, but presently the petitioner is on bail granted by this High Court. The learned counsel for the respondents also refers to Annexure-1 i.e. F.I.R. under Bettia (T) P.S. Case No. 91 of 2007 under Section 395 of the Indian Penal Code with respect to robbery in the post office and it is pointed out that the petitioner is also an accused in that case and he has been remanded in that case. The learned counsel for the respondent submits that the petitioner is a veteran criminal involved in several cases relating to series of crime and that he has filed this application only with a view to harass the police authorities. The learned counsel for the petitioner referring to confessional statement of the petitioner at Annexure-17 to the rejoinder dated 5.2.2009, points out that in the concluding portion of the confessional statement the time of recording confession as mentioned by the police officer was 16:30 hours but there is cutting over it. The learned counsel for the respondent replied that this is bona fide correction overwriting that was simply made to correct a slip of pen and this cannot - 5 - go to discredit the process of recording of confessional statement and further that this matter will be considered at the time of trial for taking a final view. The learned counsel for the petitioner also pointed out that on mobile no. 99558400 vide Sanha S.D. entry 1000 dated 4.12.2007 one mobile with sim connection no. 9955840050 is said to have been recovered from the possession of the petitioner but subsequently it was found that this mobile was not in the name of petitioner but to some other person, namely, Abhay Kumar Mishra. To this question, the learned counsel for the respondent submitted that may be the sim number was in the name of some other person but it is possible that the sim in the name of some other person can be used in the mobile of some other person. The leaned counsel for the petitioner submitted that the petitioner was arrested on 3.12.2007 and he was detained by police for more than 24 hours and that he was produced before the Chief Judicial Magistrate on 5.12.2007. It was also argued that during police custody, the petitioner was tortured. In reply to this submission, the learned counsel for the respondent submitted that in his main case the petitioner does not say anywhere that he was arrested on 3.12.2007, though subsequently, has tried to develop the matter by stating in his supplementary affidavit that he was arrested on 3.12.2007 but in that supplementary affidavit also the time of arrest is not mentioned. The learned counsel further referred to Annexure-2 i.e. the remand order dated 5.12.2007 to the petition. The - 6 - Annexure-2 mentions that on 5.12.2007 the petitioner was produced before the Chief Judicial Magistrate for remand and at that time he had not complained any ill-treatment at the hands of escort party and he had also stated that he had sufficient material for his defence and that one Om Prakash Debey will make pairvi on his behalf. Thus, at the time of remand, the petitioner does not complain of any ill-treatment at the hands of the police party. The remand order mentions that the petitioner had some injury on his left thumb which stated to have been caused at the time of his arrest and medical treatment was also order to be provided to him. During hearing, the learned counsel for the petitioner argued that police had assaulted the petitioner and had caused injuries on his left thumb which was grievous in nature and it was also submitted that fracture injury had been caused to the petitioner. The learned counsel for the petitioner submitted that vide Annexure-7 doctor had found one injury on the petitioner’s left thumb and had treated him and had advised for x-ray but x- ray was not done. Here, the learned counsel for the respondent submitted that the normal treatment was done as the injury sustained by the petitioner was simple. So far not doing of the X-ray is concerned, the learned counsel for the respondent submitted that the petitioner was subsequently released on bail and even after his release on bail, he did not get his thumb x- ray in order to show that there was a fracture in his thumb and this goes to show that the allegation of causing any fracture - 7 - injury is not correct. The learned counsel for the State- respondent submitted that the petitioner being a hardened criminal, involved in several cases, was apprehended by police in the instant case i.e. Bettia Mufassil P.S. Case No. 156 of 2007 and that since the petitioner had tried to resist the arrest some superficial injury was caused. It is also submitted that on finding sufficient material against the petitioner chargesheet has been submitted against him in the case and cognizance of offence has also been taken and the petitioner has to face trial in the case. So far the question of compensation is concerned, the learned counsel for the State says that no wrong has been committed by the police or any other authorities and whatever has been done with that was done with lawful authority for the purpose of lawful prosecution of the accused in a case. Thus hearing, I find no merit in this case and the same is dismissed. (C.M. Prasad, J.) Ravi/-