IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Writ Petition No. 1500 of 2006 (1) Smt. Sunita W/o Sri Hayat Singh, R/o Chakarpur, P.S. Khatima District Udham Singh Nagar. (2) Smt. Haripriya Devi, W/o Late Bhupal Singh, R/o Village Chakarpur, P.S. Khatima, District Udham Singh Nagar. …………………..Petitioners. Versus (1) State of Uttarakhand through Secretary (Home), Dehradun. (2) District Magistrate, Udham Singh Nagar. (3) Senior Superintendent of Police, Udham Singh Nagar. (4) Station Officer, Police Station Khatima, District Udham Singh Nagar. (5) Sri J.C. Pathak Station Officer of Police Station Khatima Service through S.S.P. Udham Singh Nagar. (6) Sri Harish Sharma Police Constable Police Station Khatima Service through S.S.P. Udham Singh Nagar. (7) Sri Sundar Singh Police Constable Police Station Khatima Service through S.S.P. Udham Singh Nagar. ………..……..Respondents. Sri Arvind Vashistha, Advocate for the Petitioners. Sri M.A. Khan, Brief Holder for the State-Respondents. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. (Oral: Hon’ble Prafulla C. Pant, J.) By means of this writ petition, the petitioners have sought writ in the nature of mandamus commanding the respondents no. 1 to 3 to register a criminal case against the Station Officer, Police Station Khatima and other erring police officials, and investigate into custodial death of Arjun Singh, who allegedly died in the custody of Khatima Police on 09.06.2006. (2) Heard learned counsel for the parties. 2 (3) Brief facts of the case, as narrated in the writ petition, are that Arjun Singh (deceased), aged 25 years, son of Bhupal Singh, Resident of Village Chakarpur, Police Station Khatima, was brother of petitioner no. 1 Sunita and son of petitioner no. 2 Haripriya Devi. It is stated in the writ petition that on 07.06.2006, Police Constable Sundar Singh (respondent no. 7) came to the house of Arjun Singh and took him to Police Station in connection with investigation of a case relating to offence punishable under Section 306 I.P.C. It is further stated in the writ petition that on 08.06.2006, petitioner no. 2 Haripriya Devi, mother of Arjun Singh (deceased), at about 7 p.m. visited Police Station and met her son, and by then the deceased was hale and hearty. It is alleged in the writ petition that in the intervening night of 8th / 9th June 2006, Arjun Singh was tortured in the Police custody in Police Station Khatima and consequently died on 09.06.2006. The deceased was taken to District Hospital, Rudrapur, Udham Singh Nagar, but died on his way to the Hospital. Thereafter, postmortem examination of the dead body was conducted. Petitioners’ case is that meanwhile on 09.06.2006, they were given telephonic information about the fact that condition of Arjun Singh was serious. On which, they came to Khatima and accompanied the deceased on his way to District Hospital, Rudrapur. It is alleged in the writ petition that the incident of torture by Police was witnessed by Dhyan Singh, who happened to be at the Police Station in connection with same crime relating to offence punishable under Section 306 I.P.C. It is stated in Para 7 of the writ petition that on 10.06.2006, when the dead body was handed over to the petitioners for cremation, they saw injuries on the body of the deceased. On 11.06.2006, petitioners made a report (copy annexure 3 to the writ petition) to the District Magistrate, Udham Singh Nagar, requesting that impartial inquiry by C.B.C.I.D. be made against the guilty police officials who are responsible for torturing the deceased and thereby causing his death. It appears that on said application an inquiry was ordered to be done by the Magistrate. The Sub 3 Divisional Magistrate, Khatima, after inquiry submitted his report on 26.10.2006 to the District Magistrate (copy of which is annexed as annexure CA-13 to the counter affidavit filed on behalf of the respondents), in which a conclusion was given that the deceased has not died on account of torture by Police. However, it is observed by the Magistrate that after the viscera report is received the cause of death may be ascertained. In Para 11 of the writ petition it is stated that to save the skin from the clutches of law, Police got registered a Case Crime No. 1857 of 2006 against Arjun Singh (deceased), under Section 34 of Police Act and have shown him released on bail on 08.06.2006. Alleging the violation of Human Rights this writ petition was filed seeking the mandamus commanding the respondents no. 1 to 3 to register the criminal case against the erring police officials of Khatima for the custodial death of Arjun Singh on 09.06.2006. (4) A counter affidavit has been filed by Sri J.C. Pathak, respondent no. 5, on behalf of all the respondents, who was the Station Officer of Police Station Khatima on the day of incident. In the counter affidavit the allegations made in the writ petition are denied and it is alleged that the same are false. According to the respondents true facts of the case are that on 07.06.2006 one Ganga Singh orally informed the Police regarding missing of Smt. Indra Devi alias Bhavna, wife of Dhyan Singh for 4-5 days. On said report, the Police sent one Constable Sundar Singh (respondent no. 7) to call Arjun Singh (deceased) to enquire about the whereabouts of Indra Devi. According to the respondents Arjun Singh left the Police Station after he was interrogated relating to whereabouts of Indra Devi. However, later Arjun Singh (deceased) was found strolling in Khatima Bazar in the evening in drunken state and creating nuisance. On which, Constable Balkrishna, who was on duty took him to Police Station from where he was taken for medical test in Community Health Center, Khatima. A medical report (copy of 4 which is annexure CA-1 to the counter affidavit) was prepared by the Emergency Medical Officer, Khatima on 07.06.2006 at 6.30 p.m. in which it was found that Arjun Singh had consumed liquor but was not intoxicated. According to the respondents, thereafter, on 08.06.2006 Arjun Singh was released on bail from the Police Station at 8.10 a.m. (copy of extract of general diary showing that Arjun Singh was released on bail is annexed as annexure CA-2 to the counter affidavit). On the very day i.e. on 08.06.2006, Ganga Singh gave a written First Information Report, relating to abetment of suicide by Indra Devi (wife of Dhyan Singh), against Dhyan Singh, Haripriya Devi (present petitioner no. 2), Arjun Singh (deceased) and his brother Bahadur Singh, alleging that they had tortured Indra Devi, who committed suicide. A Crime No. 1862 of 2006 was registered at Police Station Khatima relating to offence punishable under Section 306 I.P.C. against said persons (a copy of said First Information Report is annexed as annexure CA-3 to the counter affidavit). Consequently, Dhyan Singh was arrested by Police on 09.06.2006. Meanwhile, at about 8.45 a.m. one Gopal Singh Bisht, Advocate, who allegedly claimed himself to be relative of Arjun Singh came at the Police Station with him (Arjun Singh), who was named as accused under Section 306 I.P.C. and told that he (Arjun Singh) is unwell and needs proper medical aid. An application is said to have been given by Gopal Singh Bisht, Advocate (a copy of which is annexed as annexure CA-5 to the counter affidavit). On this, according to the respondents, Arjun Singh was taken to Community Health Center, Khatima, from where he was referred for further treatment to Rudrapur, Udham Singh Nagar, and on his way to Rudrapur, according to the respondents, Arjun Singh died. It is admitted in the counter affidavit that at that time the deceased (Arjun Singh) was being accompanied by Constable Harish Sharma and the petitioner no. 1. The respondents have alleged that the story that Arjun Singh has died in Police custody due to torture allegedly committed by Police is a cooked up story of the petitioners 5 to claim compensation. It is further stated in the counter affidavit that a team of three medical officers, namely, Dr. K.C. Thakur, Dr. Sanjeev Kumar Goswami and Dr. Dinesh Dharam Saktu, conducted the postmortem examination on the dead body of deceased Arjun Singh and no mark of injury was found on his body. It is further stated that no violation of human rights was committed by the respondents. (5) Having heard learned counsel for the parties and after going through the affidavits exchanged by the parties we are of the view that prima facie, followings points create doubt as to the defence taken by the respondents claiming that the Arjun Singh has not died in the custody:- (i) It is suspicious that after Arjun Singh was released on bail on 08.06.2006 at 8.10 a.m., on 9th June 2006 the same person would be brought to Police Station for being taken for medical treatment and the Police would provide a Constable (Harish Sharma) to accompany him to the District Hospital. (ii) It also appears to be suspicious that after Arjun Singh was called by Police on 7th June 2006 for interrogation and left from the Police Station would soon be arrested relating to offence punishable under Section 34 of Police Act and brought back to Police Station. (iii) Dhyan Singh, co-accused with Arjun Singh in a case under Section 306 I.P.C. has stated that he was in lock up with Arjun Singh in the intervening night of 8th / 9th 6 June 2006 and both of them were tortured by the Police. (iv) Though team of doctors have mentioned in autopsy report that no ante mortem injuries found on the body of Arjun Singh but inquiry report of Sub Divisional Magistrate (copy annexure CA-13 to the counter affidavit) shows that several witnesses have stated that there were marks of injury on the body of the deceased Arjun Singh when his body was taken for cremation and given bath before cremation. (v) We fail to understand how Constable Sundar Singh had gone to village to take Arjun Singh to Police Station, Khatima, on 07.06.2006, if F.I.R. was lodged on 08.06.2006 against him in connection with crime relating to offence under Section 306 I.P.C. (vi) It has also come on the record that Shri J.C. Pathak (respondent no. 5) gave Rs.5,000/- for treatment of Arjun Singh to Shri Harish Sharma (respondent no. 6). This is unusual conduct on the part of police officials when the deceased did not suffer any injury at the police station. (vii) During arguments we are told by learned counsel for the respondents that on examination of viscera, no poison is found in the contents preserved at the time of postmortem examination from the body of Arjun Singh. 7 (6) In view of the above points, the allegations made by the petitioners relating to custodial death of Arjun Singh that he died due to torture in the Police custody cannot be brushed aside lightly and the detailed report given by petitioners to the Senior Superintendent of Police, Udham Singh Nagar on 10.07.2006 (a copy of which is annexed as annexure SCA-3 to the supplementary counter affidavit) requires investigation by some independent agency. Since the allegations made in the report disclose commission of culpable homicide (of Arjun Singh) punishable under Section 304 I.P.C. against the respondent no. 5 J.C. Pathak and respondent no. 6 Harish Sharma, we hereby direct respondent no. 3 (Senior Superintendent of Police, Udham Singh Nagar) that a criminal case be registered within a period of one week from today on the basis of report of petitioners, which is annexure SCA-3 to the supplementary counter affidavit at Police Station Khatima against aforesaid two police officials and that the investigation be entrusted immediately to the C.B.C.I.D. (headed by an Officer not below the rank of the Deputy Superintendent of Police). The Investigating Officer shall see that if any other official is found responsible for the custodial death, he may proceed against him also. We further observe that if any of the above two officials J.C. Pathak and Harish Sharma are still posted at Police Station, Khatima, they shall not be permitted to remain attached there so that the investigation can proceed fairly and independently. We further observe that contents of this judgment and order shall not have affect on the trial if any being faced by Dhyan Singh, petitioners and others in connection of case crime relating to offence punishable under Section 306 I.P.C.. With these directions this writ petition is disposed of. (7) Learned counsel for the petitioners submitted that he does not want to press the relief no. 2 which relates to awarding of the compensation to the petitioners. 8 Registry is directed to send copy of this order immediately to Senior Superintendent of Police, Udham Singh Nagar, for compliance. (Dharam Veer, J.) (Prafulla C. Pant, J.) 05.08.2008 NS