. IN THE HIGH OOURT OF JUDICATOBE AT BILASRJR, WBIT ffiTITICM N0. ,!G^ OF 2000 PETITIQNER RESR3NDENT(S) l-^-^i3;;S /•^, s^. ^-.--^^ "^^^I^y V: KalysB Sxngh, ^' Aged about.41 years, s/o Shri Kalvin Masih, caste Gond, resident of village - TikaT (Jyotipur), Gaurekla, Police Station Gaurella, T hsil- Peadra Road, District- Biiaspur, Chhattishgarh. VERSUS 1. State of Chhattisgarh, through the Secretary, Home Department, Raipur, Chhattisgarh. 2. The Superintendent of Police, Bilaspur, Chhatti.sgarh. 3. Shri Prakash Pandey, Sub Divisional Officer(Police) Tahsil Pendra Boad, District Bilaspur, Chhattisgarh. 4. Shri Dubet;, Town Inspector, Po.lice Station Gaurella, District Bilaspur, Chhattisgarh. 5. Shri Bhagwat Dahariya, Head Constable, 6. Shri Mahesh Verma, Constable, ,£, y^l. Shri Dilip Dahariya, Constable, 8. Shri Siya Ram, Constdale, .i ~, ^•^iss^s ^J^- Bespondent No. 5 to 6 are posted in Police Station Gaurella, Tahsil Pendra Boad, Bistrict - Bilaspur, Chhattisgalah. BBIT PETITION IMDEB ARTICLE 226/227 OF THE OONSTITUTION OF 1NDIA FOR ISSUE OF W APPROPRIATE IT IN THE NATURE OF M/WDAMDS/CERTIOB^tI/PBOBITION ETC. OR ORDER 08 DIRECTION IN Tffi LIKE NATOtE. ,1,.,B<3 HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. No. 106 <rf 2000 Petitioner Kalyan Singh VERSUS ResBondents State of Chhatttisgarh & Others. Shri Rajesh Pandey, leamed counsel for the petitioner. Shri Sandeep Dubey, learned G.A. for the Stale. Shri Sanjay Ku. Agrawal, learned eounsel for respondents 3,5,C & 7. ORDER (Passed on Jo -02-2006) Dhirendra Mljshra, J The petitioner by this petition under Articles 226/227 of the Constitution of India is praying for issuance ofwrit in the nature ofmandamus seeking a direction against the State to pay him compensation to the tune of Rs. 5,00,000/- for the constitutionai tort committed by the respondents. He has further prayed for imposition of appropriate punishment on the respondents in accordance with law who are alleged to have subjected the petitioner to torture in poltee custody. Case of the petitioner in brief is that he is the resident of vitlage Tikar (Jyotipur), Police Station Gaurelta and is mason by profession whereas respondents 3 to 8 are the Police Officers posted at Police Station Gaurella under respondent No.2. It is alleged by the petitioner that he under the instructions of respondent No.4 had undertaken the work of plastering in the quarters constmcted in the campus of police station Gaurella in the month of October 1998. However, as the petitioner was not paid the wages by the respondent No.4 despite several requests, he stopped the work. This stoppage of work by the petitioner annoyed respondents 4 to 8 and while the petitioner was engaged in the <'r'-T construction work in the house of one Rakesh Sahu of village Gaurella, respondent No.5 - the Head Constable along with respondents 6 and 7 went there, abused the petitioner and beat him with ^ick. Thereafter, his hands and legs were tied by a rope and the Town Inspector (respondent No.4) came with two other constables and started mercilessly beating the petitioner. The petitioner was even dragged from the place ofthe incident to the police station throughout the street and in this process also he was continuously beaten and abused by the police personnel. 4. Whole incident was witnessed by the people of the locality as the road from where he was taken traverses through the busy marketof the area. It is further alleged that beating started from 10/11.00 p.m. on . 29.10.99. Respondent No.8 administered electric shock in his legs. Respondent No.4 beat him with stick and kicks whereas respondent No.3 SDO (P) squeezed his head by boot after beating as a result of which the petitioner became unconscious. Petitioner also alleges that one constable urinated over his face. It is also alleged that sole of his feet were burnt by giving electric current and realizing that the condition of the petitioner was vrorsening and he might die, the police personnel started giving medical treatment to him. Thereafter, he was taken to the Community Heatth Centre, Gaurella whereupon the doctor referred him to District Hospital, Bitaspur vide Annexure P-1. He was admitted in the District Hospital, Bilaspurat 5.20 a.m. on 30.10.99 vide Annexure P-2. The doctor of District Hospital, Bilaspur again referred the petitioner to Medical College Hospitat, Raipur for X-ray vide Annexure P-3 dated 30.10.99, as the X-ray machine of District Hospital, Bilaspur was out of order. Thereafter the petitioner was discharged from District Hospital, Bilaspur vide Annexure P-4 dated 01.11.99. The petitioner was given some treatment at Medical College Hospital Raipur vide medical report Annexure P-5. It is averred that during this period the petitioner was unconscious and he came to know about his shrfting from one place to another by the police later, through the documents and the charge sheet fited by the police. He was ultimately produced before the Judicial Magistrate First Class, Pendra Road on 02.11.99 and the learned Magistrate directed medical examination of the petitioner and asked for ths medical report. As perthe directions ofthe Court respondent No.4 forwarded <z-y 5. the petitioner to Medical OfRcer, Gaurella for examination and also for appropriatetreatment vide memorandum of Annexure P-6. The petitioner was formally shown under arrest on 02.11.99. The Asstt. Surgeon examined the petitioner and gave his finding that the petitioner was complaining acute pain and noticed tendemess, headache, pain in right side of the fece, scarring in between toes of left foot and multipte abrasions over ieft foot dc. and thus the doctor referred the petitioner to Sardar Patel Hospital, Bilapur for X-ray and special Orthopedic Opinion & Management. Respondent No.4 vide Annexure P-7 addressed to B.IVI.O. Gorella requested for providing an ambulance wtth staff for carrying the petitioner to District Hospital, Bilaspur for further treatment. Respondent No.4 atso lodged the complaint before JMFC, Pendra Road to the effect that doctors were not providing treatment to the petitioner vide Annexure P-8. The BMO vide reply ofAnnexure P-'t1 to the memo dated 03.11.99 stated that ambulance was not available at the centre and therefore the petitioner be taken to Bilaspur by train. tt is further aven-ed that learned Fourth Additional Sessions Judge, Link Court, Pendra Road by order dated 18.11.99 vide Annexure P-12 granting bail to the petitioner observed that the petitioner was illegally detained by the poliee from 29.10.99 to 02.11.99. The Court has further observed that while the petitioner was in police custody he had sustained several injuries and even on that day the petitioner required appropriate treatment. It is also avsrred that Christian Community had proeeeded against the inhuman and barbaric treatment gh/en to the petitioner by the police and the Human Rights Commission did not take cognizance ofthe comptaint ofthe petitioner on the ground that casewas already pending in the Court vide Annexure P-16. In reply to the petition respondent Nos.1 & 2 have taken defence that Crime No.151/99 for the offences under Sections 341, 294, 323 and 506-B ofthe IPC was registered against the petitioner as he was absconding. Further defence was taken by respondents No. 1 & 2 that the petitioner was a mason by profession some twenty years back and had fatlen from oertain height some twelve years back while construeting some structure and the same had resulted in some injuries in his waist. Crime No.235/99 forthe oftences under 't-?t. Sections 186, 332, 333 and 307 of the IPC was registered against the petitioner as he had caused injuries to Head Constabte Bhagwat Prasad Deharia and in the above incident he also assautted Constable Dilip Kumar Dhiri who sustained injuries. After causing injuries the petitioner ran away from the place ofincident and he was caught bythe police party and brought to the potice station in an auto-rickshaw as he was not abte to walk. From the police station the petitioner was sent for medical examination. On enquiry he reveated that he had met with some accident some tweh/e years back and therefore he was not able to walk. 6. According to respondents No. 1 & 2 the instant petition has been flled in order to cook up a defence as the petitioner was involved in two criminal cases and rest ofthe allegations were denied. In almost identical retum the respondent No.4 has stated that petitioner was wanted in connection with Crime No. 151/99 and he had deputed three Constables to arrest him on 29.10.99. A Constable informed that petitioner had assaulted Bhagwat Deharia with chopper (gadasa). He reached the spot and found Bhagwat Deharia in injured condition and he was taken to the hospital. Two Constables had caught hold of the petitioner. On enquiry the petitioner did not repty and pretended to be insane whereupon he took the petitioner to the police station and from there he was taken to Community Health Centre. Medical report of Bhagwat Deharia is Annexure R-4 (2). The doctor found as many as four lacerated wounds and two incised wounds over his head. Constable Dilip Kumar Dhiri also sustained injuries and his injury report is Annexure R-4 (3). On the report of Head Constable (respondent No.5) Crime No. 235/99 was registered against the petitioner under Sections 186, 332, 333 and 307 of the IPC. This respondent denied the allegation of non payment ofwages to the petitioner and stated that maintenance ofthe police station is done by Pubiie Works Department. It was atso denied that the petitioner was dragged from the place of incident to the police station in fuil public view and was manhandled either by him or his subordinates. However, the allegation that he was admitted in the hospital and from there he was referred to District Hospital, Bilaspur and from there to Medical Coliege \y- x Hospital Raipur for X-ray has been admitted. As the petitioner was undergoing treatment he was not arrested until the doctor gave his report. It is further averred that show cause notice was issued to him by teamed JMFC vide Annexure R-4 (5) and he submitted his reply vide Annexure R-4 (6) to the show cause notice. 7. Respondents No. 4, 5 and 6 in their separate repty have taken identical defence as that of respondent No.4. Respondent No.3 in his reply has taken identical defence and stated that he was on tour on the date of incident and by the time he reached the police station, the petitioner had already been sent to District Hospital, Bilaspur. The petitioner had no orthopedic problem as per the report ofAnnexure R-4 ofthe District Hospital and the doctors had not found any erfemat injury over the body ofthe petitioner. 8. In rejoinder to the return of the respondents the petitioner has averred that after mercilessly beating him, he was taken to various hospitals in order to ensure that he should not die. JMFC Pendra Road after wttnessing the injuries present on the body of the petitioner had ordered medical examination; sign of burn were detected by the doctors and all the injuriss present on the body of the petitioner were caused when he was in police custody. He has further staled that leamed Magistrate vide his remand order dated 2.11.1999 has mentioned all the irregularities committed bythe Police after taking the petitioner into custody and accordingly issued a show cause notice vide Annexure P-20 to the Station House Offlcer calling upon him to show cause as to why he should not be considered guilty of the offence under Section 342 of the IPC for causing wrongful restraint to the petitioner. With the rejoinder the petitioner has also annexed certffied copy of the certificate showing permanent disability to the extent of 90% issued by the Medical Board, Bilaspur. 9. Learned counsel for the petitioner submits that from the pleadings of the respecth/e parties and documents annexed thereto it is undisputed that the petitioner was taken to the police station on 29.10.1999 in the noon and from police station he was brought to the Community Health Centre, Pendra Road 1.^11 \ . //' ^ from where the doctor referred him to the District Hospital, Bilaspur and from there the petitioner was taken to Medical College Hospital, Raipur and uttimately he was produced before JMFC Pendra Road on 2.11.1999 after showing his arrest at about 2.30 p.m. It is also established from the observation of the Magistrate contained in the remand order as well as from the order of the leamed Additional Session Judge granting bail to the petttioner as also from the medlcal report dated 2.11.1999 that while the petitioner was in the police custody he was beaten by the respondents 4 to 8 and as a resutt of which he sustained injuries and was not able to walk as he had sustained permanent disability to the extent of90%. 10. The arrest of the petitioner was in utter violation of the guidellnes issued by the Supreme court in the matter of D.K.Basu Vs. State of West Benaal reported in AIR 1997 S.C. 610 and the petitioner was confined and beaten mercilessly by the respondents 4 to 8 without producing him before the Magistrate within 24 hours of his detention and the same amounts to illegal confinement. Thus on the basis of aforesaid admitted scenario that emerges from the matwial available on record the petitioner should be adequately compensated by the State for conditutional wrong done by the officers ofthe State as acts of respondents 4 to 8 are in violation of fundamental right ofthe petitioner by the State machinery. He further placed reliance in the judgment of the Supreme Court reported in AIR 1993 SC 1960 in the matter of Smt. Ntlabati Behera alias Lalita Behera Vs. State of Orissa . 11. On the other hand learned counsel for the respondents submits that the petitioner was involved in two criminal cases. On the date of incident the respondent No.4 had entrusted respondent No.5 and two other constabtes to arrest the petitioner in connection with Crime No. 151/1999 and while he was asking him to accompany him to the Police Station, ths petitioner all of a sudden attacked the respondent No.5 with chopper (Gadasa) and inflicted as many as SK grievous injuries over the person of respondent No.5. He also inflicted injuries to Constable Dilip Kumar Dhiri (respondent No.7) and only thereafter police party somehow controlled the petittoner and took him to the ^y2- <'./-- ^ 12. police station by auto rickshaw. Since the petitioner complained some pain over his body and expressed his inability to walk he was taken to the Community Health Centre for medical examination and as per reference of the dootor he was taken to Bilaspur and then to Raipur for treatment. However, doctors did not notice any orthopedic problem with the petitioner and two minor abrasions were found on his body and only then the petitioner was arrested on 2.11.1999 and was produced before the Magistrate, therefore, the allegation ofthe petitioner that he was arrested on 29.10.1999 and thereafter beaten mercilessly by respondents 4 to 8 and onty to save his life he was taken to hospital and thus he was illegally confined from 29.10.1999 to 2.11.1999 is not bome out from the mata-ial available on record. It is further argued that from the disability certificate issued by the lyiedical Board it is not clear whether the disability mentioned in the said certificate refers to permanent disability or partial disability as the said certiflcate is shown to be valid for three years only from the date of its issuance. Even otherwise the certificate is in pro forma and said pro forma has not been filled in properiy. It is argued that grievous injuries sustained by respondent No.5 are established from the report of Annexure R-4(2). In the aforesaid circumstances the petitioner is not entitled for any relief and the petition is liable to be dismissed. The first contention is- whether from the pleadings and material available on record the petitioner has been abte to establish that he was illegally detained by respondents No. 4 to 8 and was subjected to inhumane torture by them and whether as a result ofthe said torture the right leg ofthe petitioner from the right hip had become paralyzed and that he is not able even to stand and waik without cmtches and as sueh he has sustained total disabitity? From the pleadings of the respective parties the undisputed facts are that on 29.10.1999 the petitioner was detained by two constables and thereafter he was taken to police station in auto rickshaw as he was not able to walk. Thereafter, he was sent to Community Health Centre, Gaurella for medical examination at about 21.05 hours and was examined there by the doctors at 20.30 hours. The doctor noticed two bruises of 4 x 14 cm over the left side ''.•^i, below neck and 3 x 1 cm over the back, chest and the petitioner was refen-ed by the doctor to the District Hospital, Bilaspur for orthopedic check-up and final opinion. 13. The petitioner was further referred from Sardar Patel Hospitat, Bilaspur to Medicat College Hospital, Raipur on 30.10.1999 for X-ray and further treatment and he was discharged from District Hospital, Bilaspur on 01.11.1999. The petitioner was examined at Medieal College Hospital, Raipur and radiological tests were also conducted and some treatment was given to him. Thereafter, he was produced before the Judicial Magistrate First Class, Pendra Road on 02.11.1999 after showing his arrest at about 14.30 hours on 02.11.1999 and the poliee prayed for his remand up to 16.11.1999. Learned Judicial h4agistrate First Class, Pendra Road vide remand order dated 02.11 .1999 has observed that the petitioner was sent for medical examination on 29.10.1999 first to Gaurella, thereafter to Bilaspur and then to Raipur. He was admitted in emergency \(vard of Medical College, Raipur, however, there is no doeument to show that he was discharged from Medical College, Raipur and the police without producing the petitioner in Bilaspur Hospital had straightaway produced him before the Magistrate after showing his arrest at 2.30 p.m. on 02.11.1999 and the information ofthe an-est has been given to his elder brother only on 02.11.1999. Thereafter, a show cause notice was issued to the Station House Offlcer of Potice Station- Gaurella calling upon him to show cause as to under what circumstances the petitioner was kept into custody from 29.10.1999 to 02.11.1999 up to 14.30 hours. Learned Magistrate further obsen/ed that the petitioner was complaining pain in his waist and he was not able even to move. On enquiry about the same respondent No. 4- the Station House Officer admitted that the petitioner was not cured and he had produced him before the Magistrate after arrest and as the family members of the petitioner desired that he should be admitted in Gaurella Hospital, in the aforesaid circumstances, instead of sending the petitioner to sub-jail, Pendra Road, leamed Magistrate directed the S.H.O. Mr. S.K. Dubey to admit the petitioner in Gaurella Hospital. Respondent No. 4 was also directed to submit daily report about A< ^ y the condition of the petitioner till he is discharged from the Hospital. It was further directed that ifthe doctors advice that he should be treated in District Hospital, Bilaspur or at Ralpur, in that case he could be shifted as per the requirement. Learned Magistrate also observed that detention of the petitioner from 29.10.1999 to 02.11.1999 by the police is illegal and in violation of Article 22(2) of the Constitution of India. Learned Magistrate called for explanation from respondent No.4- the Station House Officer of Police Station-Gaurella as to why he should not be held guilty under Section 342 ofthe Indian Penal Code for wrongful confinement ofthe p^itioner. 14. Respondent No. 4 submitted his reply to the above show cause notice and denied the allegation. However, respondents have not denied that the petitioner was taken from the place of incident firstly to the police station and thereafter he was sent to various hospitals and as sueh the petitioner was in custodyofthepolicefrom 29.10.1999to02.11.1999upto 2.30p.m. He was formally arrested and produced before the Magistrate. Thus on the basis of undisputed facts this Court is of the opinion that the petitioner was in the custody of the police from 29.10.1999 to 02.11.1999 up to 2.30 p.m. and there is no convincing explanation from the police for above illegal detention. It is also not disputed that the petitioner sustained injuries while he was in illegal custody of the police on 29.10.1999 and he underwent treatment for the same. Therefore, it can safely be coneluded that the petitioner was tortured by the poliee on 29.10.1999 while he was in wrongful confinement as a result ofwhich he sustained injuries. 15. Thus, from the admitted facts it is evident that respondents No. 4 to 7 arrested the petitioner and wrongfufiy confined him in violation of the guidelines issued by Supreme Court in the matter of D.K.Basu Vs. State of West Bengal (supra) wherein it has been directed that the police shall follow in all cases of arrest or drtention the following preventive measures: (i) The police personnet carrying out the arrest and handling the interrogation ofthe arrestee should bear accurate, visible and clear identification and name tags wtth their designations. The particulars ofall such police personnel who handle interrogation of the arrestee must be recorded in a register. (ii) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness. Who may be either a member ofthe family ofthe arrestee w a respectable person ofthe locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relath/e or other person knovm to him or having interest in his welfare belng Informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness ofthe memo ofarrest is himself such a friend or a relative ofthe arrestee. (iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concemed telegraphically within a period of 8 to 12 hours after the arrest. (v) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is d^ained. (vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall atso diselose the name ofthe next fried ofthe person who has been informed ofthe arrest and the names and particulars o the police officials in whose eustody the arrestee is. (vii) The arrestee should, where he so requests, be also examined at the time of his an-est and major and minor injuries, if any present on his/her body, must be recorded at that time. The "tnspedion 11 /:-• ,7,< 16. ^4emo" must be signed both by the arrestee and the police ofReer affecting the arrest and its copy provided to the arrestee. (viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services ofthe concemed State or Union Territory Director, Health Services should prepare such a panel for all Tehsils and Districts as wsll. (ix) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record. (x) The arrestee may be permitted to meet his lawyer during interrogation, though nothroughoutthe interrogation. (xl) A police central room should be provided at alt Districts and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer