CRIMINAL WRIT JURISDICTION CASE No.490 OF 1999 (An application under Article 226 of the Constitution of India) BIHSWANATH SARAN YADAV SON OF LATE MAHABIR PRASAD YADAV, RESIDENT OF VILLAGE BANMANKHI CHAKLA, P.S. BANMANKHI, DISTRICT- PURNEA .......... PETITIONERS Versus 1. THE STATE OF BIHAR 2. DEEPAK KUMAR SINGH, SON OF NOT KNOWN TO THE PETITIONER, DISTRICT MAGISTRATE, PURNEA 3. R.S. BHATTI, SON OF NOT KNOWN TO THE PETITIONER, PRESENTLY POSTED AS SUPERINTENDENT OF POLICE, JEHANABAD, THE THEN S.P. PURNEA 4. SHAILENDRA KUMAR, SON OF NOT KNOWN TO THE PETITIONER, DEPUTY SUPERINTENDENT OF POLICE, BANMANKHI, PURNEA 5. BISHUN RAJAK SON OF NOT KNOWN TO THE PETITIONER, OFFICER-IN-CHARGE, BANMANKHI POLICE STATION, DISTRICT- PURNEA 6. SUNIL KUMAR, A.S.I. BANMANKHI POLICE STATION, DISTRICT PURNEA 7. DR. RAHMAN, INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, BANMANKHI, DISTRICT- PURNEA ........... RESPONDENTS FOR THE PETITIONER : MR. ASHOK KUMAR DUBEY, ADVOCATE FOR THE STATE : MR. RAJIV KUMAR SINGH, AC TO GA VIII FOR RESPONDENT NO.2: MR. SANJAY SINGH, ADVOCATE ******** P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J. The petitioner, through this writ application, has prayed for a direction upon the concerned respondents for initiating departmental proceedings as also for allowing adequate compensation for the physical injuries sustained by the son of the petitioner due to the physical assault by the police/jail officials while he was in jail custody in connection with Banmankhi P.S. Case No. 69 of 1999 (Annexure-1) 2 registered for the alleged offence under section 392 of the Indian Penal Code to which section 411 of the Penal Code was later on added. The further prayer is for punishing the concerned officials for committing the Contempt of Court by disobeying the order dated 20.03.1999 passed by the Chief Judicial Magistrate, Purnea in the aforesaid case directing for the treatment of the son of the petitioner at P.M.C.H., Patna. 2. The case of the petitioner, in brief, is that while his son was in jail custody in connection with the aforesaid Banmankhi P.S. Case No. 69 of 1999 he was brutally assaulted by the police/jail official which caused serious injuries to him. The above fact was brought to the notice of the Chief Judicial Magistrate, Purnea, who directed for getting its medical treatment at P.M.C.H. as requested on behalf of the injured. The same having not done, the concerned official committed the Contempt of Court by disobeying the order dated 20th March, 1999 passed by the Chief Judicial Magistrate, Purnea besides directing for initiation of departmental proceedings for their misconduct under the services rules. 3. Counter affidavit has been filed on behalf of the respondent no.2 stating therein that the allegation, whatsoever, is not against the respondent 3 no.2 in his personal capacity, and as such, he could not have been impleaded as a party in this case in his personal name. The further case is that the respondent no.2 in his official capacity as a District Magistrate duly forwarded the complaint of the petitioner to the concerned official for taking appropriate action in the matter after verifying the allegations. 4. The stand of the respondent-State is to the effect that the writ application has been filed not by the person aggrieved i.e. the son of the petitioner, who is alleged to have sustained physical injuries, which according to the petitioner calls for initiation of departmental proceedings as well as allowing compensation, is not maintainable/permissible in law. The person aggrieved i.e. the son of the petitioner, at no point of time, raised any claim as prayed for in this writ application nor any explanation has been stated in the writ application as to why the son of the petitioner, in whose favour the reliefs are being prayed for, and he being major, did not file the writ application. 5. Learned counsel for the petitioner contents that although in the writ application no explanation has been stated as to why his son did not file the writ application, however, since he was physically unwell at the material time due to the 4 physical assault, he did not file the writ application. 6. Besides the above, on merits, it is submitted that the concerned officials had shown negligence in discharging their official duty in getting the treatment of the son of the petitioner at P.M.C.H., Patna and they also disobeyed the order of the Chief Judicial Magistrate, Purnea whereby it was directed for taking the son of the petitioner to P.M.C.H. for treatment, if any. Learned counsel has referred to the decisions reported in (1997)3 S.C.C. 433 (People’s Union for Civil Liberties Vs. Union of India & Anr.), (1997)1 S.C.C. 416 (D.K.Basu Vs State of W.B. and one analogous case), 1989 (4) S.C.C. 730 (People’s Union for Democratic Rights through its Secretary & Anr. Vs. Police Commissioner, Delhi Police Headquarters & Anr.), AI.R.1990, SC 513 ; (1990)1 SCC, 422 (Saheli, A Women’s Resources Centre through Ms. Nalini Bhanot & Ors. Vs. Commissioner of Police, Delhi Police Headquarters & Ors.) & 2004(4) P.L.J.R., 669 (Sanjay Sharma Vs. The State of Bihar & Ors.). 7. On behalf of the respondents, it is submitted that there is no material on the record to substantiate that the son of the petitioner was assaulted. There is no medical report to support the allegations. It was only on the allegation of the 5 petitioner that he sustained injury, steps were taken in the Court below to get him treated, and as such, in absence of any foundational facts on the record, no compensation can be claimed. The prayer of the petitioner for initiating departmental proceedings is a matter to be considered by the Disciplinary Authority as to whether any misconduct is committed and by whom and whether disciplinary action was necessitated. Petitioner has no locus to pray for initiation of departmental proceedings. As regards initiation of proceedings for Contempt of Court, it is submitted that the Court of learned Chief Judicial Magistrate, whose order is said to have been violated, has not referred the matter to this Court for initiating the proceeding of Contempt under the Contempt of Courts Act. 8. Considering the submissions of the parties, it is an admitted position that the present writ application has not been filed by the person aggrieved with respect to the alleged cause of action. There is absolutely no explanation in the writ application as to why the son of the petitioner, who himself is a major, did no file the writ application claiming the relief prayed for in the present writ application. During the course of hearing, learned counsel for the petitioner submitted that since the son of the petitioner was suffering from 6 physical pain at the material time, and as such, the writ application has been filed by him. Learned counsel, however, could not satisfy that after the release of his son from the custody as per the order dated 15.04.1999 passed by the Chief Judicial Magistrate, Purnea why he could not have filed the writ application. In my opinion on this score alone the writ application, being incompetent, is fit to be dismissed. However, since the matter has been argued on merits as well, it is in fairness that submissions be also dealt with. On perusal of the averments made in the writ application as also the counter affidavit and the documents annexed therewith, it does not appear in what manner and which of the authority has violated the service rules constituting misconduct for which direction could be issued for initiation of departmental proceedings. Moreover, for initiating departmental proceeding, the disciplinary authority of the concerned official was competent to consider the same if anything is brought to its notice alleging misconduct under the service rules on the part of the concerned official. As regards the claim for compensation as well, there is nothing on the record, much less medical report, substantiating the physical assault or to the nature of injuries sustained, if any. In absence of relevant materials substantiating 7 the allegations, no direction can be issued in law for the award of compensation. The decisions referred to by the petitioner in support of his claim for compensation are not applicable in the facts of the case in hand. In those decisions the very fact of custodial death/police atrocities were an admitted fact, and as such, compensation was awarded whereas in the present case the very fact of assault, as alleged, was disputed/ not established in any enquiry whatsoever much less any medical report substantiating the allegations. As such, the aforesaid decisions are of no help. This apart, neither the petitioner nor his son appears to have lodged any First Information Report to the concerned police station or filed regular Complaint before the competent Magistrate with regard to the aforesaid assault. Similarly, the prayer of the petitioner for initiating the proceeding of Contempt for disobeying the order of the Chief Judicial Magistrate, can not be allowed for the reason that the Chief Judicial Magistrate has not referred the matter to this Court for initiating the Contempt of Court proceeding under the Contempt of Courts Act. Besides the above, on perusal of the orders passed by the Chief Judicial Magistrate, Purnea, as contained in Annexure-2 (series), it appears that the order dated 20.03.1999 for the treatment of the 8 son of the petitioner at P.M.C.H. was later on modified at the request made on behalf of the accused i.e. the son of the petitioner that the treatment may be done locally at Purnea. As such, the initial order for getting the treatment of the son of the petitioner at P.M.C.H., being modified, did not subsist and therefore no disobedience of the order can be inferred. 9. Considering the facts and circumstances and the discussions made above, I do not find any merit in the writ application and the same is, accordingly, dismissed with cost of Rs. 2000/- (two thousand) only to be deposited with the Bihar State Legal Services Authority, Patna within a period of two months from today. Patna High Court The 21st February, 2011 Manish/A.F.R. ( Shailesh Kumar Sinha,J.)