WP(C) No.11079/2006 Page 1 of 31 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) No. 11079 of 2006 Reserved on: 4th March 2010 Decision on: 25th March 2010 PREMPAL & ORS. ..... Petitioners Through: Mr. Wills Mathews with Mr. D.K. Tiwari, Advocate versus THE COMMISSIONER OF POLICE & ORS. ..... Respondents Through: Mr. Aditya Madan with Mr. Rohit Madan and Mr. Arvind Gupta, Advocates CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the order? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the order should be reported Yes in Digest? JUDGMENT 25.03.2010 1. The present petition by Prempal (Petitioner No.1), his wife, Munni Devi (Petitioner No.2) and his four children (Petitioners 3 to 6) claims compensation for the undue harassment that Prempal and his family have been subject to at the hands of the Delhi Police. The judgment of the learned ASJ 2. The basis for the claim is a judgment dated 28th September 2004 passed by the Additional Sessions Judge (ASJ), New Delhi in SC No. 29 of 2002 (State v. Prempal) acquitting the Petitioner of the offence under Section 376 IPC. In the process, the learned ASJ observed: “This case is a glaring example that the poor in this country WP(C) No.11079/2006 Page 2 of 31 have no say and if they cry for justice, their cries fall on deaf ears. They are made to suffer and pay by their life and liberty, when they complain against police officials.” 3. After narrating the long history of the suffering undergone by Prempal, at the hands of the police for about 15 years in a number of false cases, including the one in which he was being acquitted, the learned ASJ concluded: “I consider that this is an eye-opener case, which reveals the manner in which police lets off real culprits and falsely implicates innocent persons, who dare ask for justice or who want erring police officials to be brought to book. The police torture of Prempal has converted him into a living corpse. It is a case which shows that police force has persons of criminal character in it, who are out to damage the whole institution and needed to be weeded out. It is recommended that all police officials who were involved in framing Prempal in different cases be given exemplary punishment and Prempal be adequately compensated for loss of valuable years of life and wrongful imprisonment for several years and his harassment for 15 years and physical and mental torture. Copy of this judgment be sent to Commissioner of Police, New Delhi for necessary action.” 4. What is significant as far as the present proceedings are concerned is that the above judgment of the ASJ has attained finality since no appeal was filed against it by the Delhi Police. When on the basis of the above judgment, Prempal and his family members made a claim for compensation by serving a legal notice dated 28th January 2006, they received no response. Prempal and his family state that they still live under the fear of harassment by the police. It is stated that even WP(C) No.11079/2006 Page 3 of 31 after the above acquittal, Prempal has been falsely implicated in yet another case FIR No. 893 of 2005 registered at Police Station Sangam Vihar, the quashing of which is also sought in the present writ petition. In pages 73 to 76 of the writ petition, details have been given of the cases in which Prempal and his family members were arraigned as accused, the period of time spent by each of them in jail and the break-up of their claims for compensation. Affidavits and written submissions of the parties 5. This Court had, by an order dated 12th February 2007, directed the Respondents to file an affidavit indicating the action taken by them pursuant to the recommendations/directions given by the learned ASJ. The Respondents sought time on 29th January 2008 to place on record a copy of the departmental inquiry report before the court. 6. On 9th January 2007, an affidavit of denial was filed by the Delhi Police. It was maintained that Prempal had never been implicated falsely; that he and his son Sanjay Kumar were “noted criminals” in the records of PS Sangam Vihar and that they were arrested and charge-sheeted for their “criminal acts”. Even while not denying that the Petitioner No. 1 has been convicted in 5 cases and “acquitted in some cases by Hon‟ble Court after due course of trial”, it was stated that the “police officials have acted as per the provisions of law and performed the lawful duties assigned to them”. It was contended that “the action of respondent never resulted in the violation of the human rights”. WP(C) No.11079/2006 Page 4 of 31 7. On 24th March 2007, an affidavit of H.M. Meena, Deputy Commissioner of Police (Police Headquarters) was filed pursuant to the orders of 12th February 2007. In it, it was interestingly maintained that “apart from the testimony of the doctor all the prosecution witnesses have fully supported the prosecution case. However, the Ld. ASJ has been pleased to acquit the accused Prempal only because of the earlier complaints made by the accused against the police machinery”. It was further stated that the “ASJ was swayed away with the defense created by a known criminal which is not only illegal but also unconstitutional”. The affidavit chose to ignore the fact that several strictures have been passed against police officials by the learned ASJ while acquitting Prempal. Although the affidavit of Mr. Meena stated that the State was “in the process of challenging the judgment” dated 28th September 2004, no appeal has in fact been filed since then. The order dated 11th July 2005 passed by the competent authority ordering a departmental inquiry against the Investigating Officer (IO) of the case was enclosed. 8. On 28th February 2008, a further affidavit was filed by H.M. Meena in this Court stating that the outcome of the departmental inquiry against the IO was that “two years approved service of SI Major Kumar No. D/3568 has been forfeited permanently entailing proportionate reduction in his pay for his alleged misconduct.” 9. On 19th May 2009 while admitting the writ petition, this Court WP(C) No.11079/2006 Page 5 of 31 passed the following order: “Admit. List this matter for disposal on 9th September, 2009. The petitioner has claimed compensation on the ground of malicious prosecution and has relied upon judgment of the learned Additional District Judge dated 28th September, 2004 and the observations made therein. The Petitioner and the respondents will file written synopsis not exceeding three pages along with relied upon judgments within one month from today.” 10. In response to the above order, on 22nd September 2009, Prempal filed his written submissions. It has been pointed out between 1991 and 2007, 18 criminal cases were filed against Prempal by the Delhi Police. Out of the 18 cases, Prempal was acquitted in 13 cases after a full trial. However, in 5 cases (four cases of theft and 1 case under the Arms Act) the petitioner was convicted “as the petitioner was not having the resources to conduct the case properly by engaging lawyers, and also to file appeal in time, as he was physically, mentally and financially a living corpse with no hopes and resources and was finding it difficult to have even a meal in a day.” The latest was the case under Section 376 IPC where he was charged with having raped a minor girl who happened the child of his former landlord. The prosecution‟s case was that Prempal and one Aleem had frequent quarrels and that by way of revenge Prempal raped Aleem‟s minor daughter. For this he was arrested, tortured in custody and suffered incarceration for several years in jail. He was finally acquitted by the judgment dated 28th September 2004 of the learned WP(C) No.11079/2006 Page 6 of 31 ASJ who found that the prosecution had hopelessly failed to prove its case. On the other hand, it was held that the police had deliberately fabricated the evidence to somehow rope in Prempal as well as his son Sanjay. In para 2 of the written submissions of the petitioners it is stated as under: “2. The first petitioner was forced to spend 2349 days in jail (6 years, 5 month and 9 days) on various occasions which is elaborately mentioned at page 66, and was badly beaten, tortured, harassed several times by the police, which was resulted in wasting almost 20 years of his precious time of his life in contesting various cases at various courts, all because of the reason that, few persons of the Delhi Police working with Sangam Vihar Police Station, New Delhi was inimical to the Petitioner for the reasons mentioned in the writ petition. The total amount the first petitioner is claiming in terms of money spent, and also in terms of compensation amounts to Rs.18,68,075.00 which is elaborately mentioned in detail at pages 68-71 of the Writ Petition.” 11. Meanwhile, a hearing of the case took place on 4th November 2009, when the following order was passed by this Court: “Counsel for the petitioner submits that he restricts his claim for compensation in the present writ petition to prosecution in FIR No.231/2002, Police Station Sangam Vihar, which was made subject matter of the decision dated 28th September, 2004. The Court file of the said case will be requisitioned by the Registry for the next date of hearing. The respondents will file their written submissions at least two weeks before the next date of hearing.” 12. After the above order was passed, a written submission by way of WP(C) No.11079/2006 Page 7 of 31 an affidavit was filed by the Respondents on 9th February 2010. In the affidavit sworn to by Mr. Mangesh Kashyap, Deputy Commissioner of Police (Police Headquarters), the judgment of the learned ASJ was criticized in a strong language. In spite of the fact that no appeal had been filed against the said judgment of the ASJ till date, it was repeatedly urged that as the case in which Prempal has been acquitted was a child rape case and that it was the duty of the court “to consider the testimony of the child victim with more care and the testimony should not be thrown away easily......” Further, in para 9 of the said written submissions, the following statement was made: “That in the present case while the records show that the victim baby * had very clearly identified the accused as the offending person, the Ld. Trial Court had thrown away the necessary testimonies and fall prey to irrelevant details in acquitting the petitioner.” (In order to preserve her privacy, the name of the victim is indicated as ‘*’) 13. This court found that the language used in the affidavits of Mr. Meena and Mr. Kashyap to criticize the judgment dated 28th September 2004 of the learned ASJ and the learned ASJ himself, far exceeded the permissible limits of legitimate criticism by a party to a case. This Court passed an order on 24th February 2010 asking them to explain why proceedings should not be initiated against them for contempt of court. In response to the said order, both Mr. H.M. Meena and Mr. Mangesh Kashyap have filed their affidavits dated 3rd March 2010 in identical terms. Paras 3, 4 and 5 of each of the WP(C) No.11079/2006 Page 8 of 31 affidavits read as under: “3. That at the outset most respectfully it is submitted that the deponent has the highest regards for all the Courts of Justice. The deponent firmly believes in the administration of justice and its dignity in all respects. It is humbly submitted that the Affidavit/Written submission was filed in good faith and bonafidely. 4. That there was no intention on the part of deponent to lower the dignity of the Ld. Trial Court Judge, nor it was the intention to interfere in the administration of justice. 5. That the deponent submits its unconditional apology with the request that averments made in the written submissions dated 09/02/2010 may kindly be expunged and it is humbly prayed that further action in this regard may kindly be dropped accordingly.” Submissions of Counsel 14. Mr. Wills Mathews, learned counsel for the petitioners, referred to the findings and observations of the learned ASJ in the judgment dated 28th September 2004. Consistent with limiting the claim in the petition to the compensation payable to Prempal for his false implication in FIR No. 231 of 2002, Mr. Mathews pointed out that in connection with the proceedings emanating from the said FIR, Prempal had to undergo 2 ½ years of wholly unwarranted and illegal incarceration. A detailed break-up of the claim of Prempal for compensation in connection with FIR No. 231 of 2002 is set out as under: Fees given to the lawyers for conducting the above said case. Rs.50,000/- WP(C) No.11079/2006 Page 9 of 31 Expenses given on account of preparing documents etc. Rs.11,000/- Loss of income during the judicial custody @ Rs. 150/- per day at that relevant point of time, from 3.5.2002 to 28.9.2004 i.e., 2 years 4 months and 28 days rounded as 2 years 5 months = 29 months Rs.1,31,000/- Loss of income: Minimum 30 days/hearings and 15 days on account of conference with lawyers total 45 days @ Rs. 150/- per day Rs. 6,750/- Conveyance to and fro from court to house for the abovesaid period per visit @ Rs.100/- for the abovesaid 45 day. Rs. 4,500/- Conveyance to and fro from court to house for the abovesaid period per visit @ Rs. 100/- for the abovesaid 45 day Rs. 4,500/- Loss of reputation and for (being) branded as bad by names. Rs.2,00,000/- Mental agony, physical harassment, humiliation and pain etc till the date of acquittal i.e. from 3.5.2002 to 28.9.2004 for about 2 ½ years @ Rs.50,000/- per year Rs.1,25,000/- Total Rs.5,32,750.00 Therefore, the claim for compensation by Prempal as regards the FIR No.231 of 2002 is computed by him as Rs.5,32,750/-. 15. The above submission has not been countered at all by the Respondents despite filing their written submissions and having several opportunities to do so. Mr. Aditya Madan, learned counsel for the Respondents did not dispute the fact that no appeal had been filed against the judgment of the learned ASJ, Delhi and therefore the Respondent No. 1 and 2 were bound to honour the observations made thereunder and that this is a fit case where the Petitioners should be compensated. The written submissions of the Respondents do not WP(C) No.11079/2006 Page 10 of 31 address the points urged by the counsel for the Petitioners. They merely state that FIR No.231 of 2002 was a case of rape of a child and, therefore, a serious one. While it is true that the case is indeed a serious one, the fact remains that no appeal had been filed against the said judgment. At the same time, the State has also not taken any steps to implement the directions issued by the learned ASJ. Prempal not a hardened criminal 16. The other plea of the Respondents is that Prempal was a noted criminal and has been convicted in five cases. However, an analysis of the details of the cases as provided by the Respondents themselves shows that this conclusion that Prempal is a hardened criminal is not justified. 17. Prempal was convicted in five out of eighteen cases, the FIRs for which were all registered at P.S. Sangam Vihar. Four of the five convictions were in FIRs Nos. 49, 75, 84 and 138 of 1999 registered under Sections 457/380/411 IPC [S.457 IPC is house trespass/house breaking by night in order to commit offence punishable with imprisonment; S. 380 IPC - Theft in dwelling house and S.411 IPC - Dishonestly receiving stolen property.] He was sentenced to rigorous imprisonment for 18 months in each, with the benefit of set off granted under Section 428 CrPC. However, Prempal was acquitted in seven similar matters. The fifth conviction was under Sections 25/27/54 and 59 of the Arms Act, 1959 in FIR No. 146/1999 wherein Prempal was sentenced to rigorous imprisonment for one year plus WP(C) No.11079/2006 Page 11 of 31 six months and had to pay a fine of Rs. 100 or if unable to pay, had to undergo simple imprisonment for 15 days. However, he was acquitted in three other similar matters where the police charged him under provisions of the Arms Act where he was able to defend himself in a court of law. Prempal was further acquitted in FIR No. 117/1991 where he was charged under Sections 302/34 IPC in addition to the present case of rape of a minor girl where the Learned ASJ acquitted Prempal. Explaining the convictions, Prempal has stated that these were due to his “not having the resources to conduct the case properly by engaging lawyers, and also to file appeal in time, as he was physically, mentally and financially a living corpse with no hopes and resources and was finding it difficult to have even a meal in a day.” Given that Prempal has been acquitted in thirteen cases after a full-fledged trial, as compared with being convicted in five cases involving less serious offences, the explanation appears plausible. What is disconcerting is the number of cases registered in the same police station and the ordeal that Prempal has had to undergo over several years to get relieved of the cases. The most precious years of his life were spent in merely trying to defend himself against a number of false cases. Despite so many acquittals, the Delhi Police continues to dub him as a „hardened‟ criminal, an appellation that is at once unfair and unjustified. 18. In the above background, the false implication of Prempal in FIR No.231 of 2002 assumes serious proportions. The offence was under Section 376 IPC and for a heinous crime of child rape. The Delhi WP(C) No.11079/2006 Page 12 of 31 Police has slapped Prempal with false charges for an offence in relation to which it would have been next to impossible for him to obtain bail and even more difficult to avoid trial. And, since they were able to demonstrate his „criminal‟ background, notwithstanding the number of acquittals, the Delhi Police had Prempal done in for. It was fortunate that Prempal was able to establish his innocence in this case and justice prevailed. However, by this time Prempal was obviously a man broken in spirit and in health. The illegal actions of the Respondents have not only taken away precious years of Prempal‟s life, which can never be retrieved, but has caused irreparable damage to his reputation. Fabrication of evidence by the police in FIR No. 231 of 2002 19. Given the long history of the litigation that Prempal had to suffer due to the highhandedness of the police, the observations of the learned ASJ are fully justified. As regards the evidence in FIR No. 231 of 2002, the order of the learned ASJ discusses it in great detail. This court has also perused the trial court record. The following findings of the learned ASJ are fully borne out from the record: “Surprisingly, police did not examine the landlord of house to show that accused had lived in that house as tenant at any point of time. In fact, the accused was being falsely framed and for this reason a stand was taken that accused had lived as tenant for three months, despite the fact that he had his own house about 4 kms. Away from that place and was living in that house since 1990 with his family except that after the year 2000 when he was implicated in several theft cases and he, out of fear, had stopped living in Delhi. WP(C) No.11079/2006 Page 13 of 31 Accused had made specific request that his DNA test be conducted and also sperm if any found on the frock of prosecutrix, be got compared. However, CFSL report shows that no sperms were found on the frock of victim. It is stated that police was shown the place in the jungle, where rape had taken place but police did not collect any evidence from the place of rape. If *victim was raped in the jungle and there was bleeding from her private part and her frock got blood smeared, it is obvious that some part of the blood would have found on the ground or bushes under nearth (sic `earth’) but in this case, purpose of police was not to catch hold of the real culprit but to use this child as a tool to falsely implicate accused Prempal in this case. For this purpose, police went to the house of accused and pressurized his wife to call the accused from village. Accused came from the village, he was apprehended, given beatings brutally by the police and implicated in this case. “The story of prosecution about accused having taken a room on rent in the house of Aleem is unbelievable. Aleem is not the landlord of the house. He himself was a tenant in one room accommodation. So, accused could not have lived in the room as tenant of Aleem. There were other tenants in that compound. If accused had lived there as a tenant, the landlord would have been called to prove it. Neither landlord nor any other tenant was examined to prove tenancy of accused. The statement of *victim, telling that an old man who used to beg with a temple on a rickshaw and then twisting the story that accused used to collect donation for the temple shows that police deliberately implicated the accused. No person has been examined from whom the accused might WP(C) No.11079/2006 Page 14 of 31 have collected donation and no recovery of rickshaw with temple has been made.” (emphasis supplied) [In order to preserve the privacy, the name of the victim is concealed and indicated as `*‟] 20. The learned ASJ thus commented on the testimony of the victim‟s mother and baby‟s father and found that the same has been totally unbelievable as under: “I consider that testimony of “victim on the question of identification of accused and testimony of Baby* and Aleem on all points is unbelievable. They seem to be deposing under police pressure or influence. The accused who has been fighting for justice had limited resources. He had been working as `Raj mistri’ and then as a labour. His house is in a resettlement colony. He could not engage good counsel to defend him to move higher courts in time, against his false framing in various cases of Arms Act, theft cases, murder case and then rape case. Had accused been a rich man, he would have been able to engage good advocates and move wheels of justice. The police atrocities on him had been unending. In last fifteen years, he had spent half of time in jail only because he was a poor ordinary person whose cry for justice was not listened by any authority. He made application after application to CP but with no result. He placed on record his all complaints made to CP and other officers with proof of receipt of complaints.” (emphasis supplied) [In order to preserve the privacy, the name of the victim is concealed and indicated as `*‟] 21. The judgment of the learned ASJ also shows that Prempal did WP(C) No.11079/2006 Page 15 of 31 make use of the opportunity during his examination under Section 313 CrPC to put across his case. The judgment records: “The accused examined himself as DW 2 after seeking permission u/s 315 Cr.P.C. He narrated his entire tale of woes with proof of FIRs, judgments, orders and complaints. The documents filed by him are Ex.DW2/1 to DW2/68 (187 pages). During his examination, ld. CPP observed that