Supplementary case record is put up before me today as the original CR is in the Hon'ble Sessions Court. On 20/06/13 a petition was filed by the petitioner alleging custodial torture of the accused Gurmeet Singh by the Police personnel during police custody. Accordingly this Court directed the I/O to produce the accused before this Court along with a medical examination report of the injuries alleged to have been inflicted by the Police.

The I/O has accordingly produced the accused in the Court today. I have perused the report of the I/O and the medical report submitted by him. The I/O has denied the alleged torture of the accused. The I/O could not produce the x-ray report of the alleged injury in spite of order dtd 20/06/12. From the doctor's prescription it cannot be ascertained the nature and gravity and the age of the injury or the acused person. The I/O's reply regarding the alleged complaint and his medical report is not at all satisfactory. The I/O has failed to comply with the directions made by this Court.

Also heard Ld Counsel appearing for the accused. Perused the petition filed by Smti Inderpal Kaur stating that the accused was brutally tortured by the Police with hockey stick on his body who sustained several injuries.

The accused is seen by this Court who has got black marks over his whole body. I have also seen the swelling over the hands and wrist of the accused. The allegation was that the accused has got fracture on his arm and petrol was put in to his anus. But the I/O has failed to produce the medical report in this regard to the reason best known to him. The accused verbally submitted that his arm is fractured as told by the doctor. He was beaten up with hockey stick and petrol was put into his anus.

In view of the above I find it not justified to remand back the accused in police custody any further as the allegation is made against Police. As the medical examination was done during police custody I find 23 it justified to medically examine the accused with regard to all his injuries mentioned above in judicial custody.

Hence remand the accused to judicial custody till next date. The Superintendent, Central Jail is directed to provide necessary medical treatment to the accused and the Jail authority is further directed to conduct a medical examination over all the injuries referred above along with a x ray of his arm and to submit a detailed report to this Court on the next date positively. N/O will be passed after receiving the medical report from jail authority.

Further I find it just and proper for the ends of justice to record the statement of the accused by a male Judicial Magistrate as the injury occurring to his private parts as alleged and accused can state without any hesitation. Now it is 5:45 pm and all the officers have left. Hence the Jail authority is directed to produce the accused on next opening day i.e. on 24/06/13 before Ld. C.J.M. for N/O regarding the recording of statement of the accused. I/O is to appear on the next date accordingly.

Fix 24/06/13 for production before the Ld. CJM for N/o.

27/06/13 for medical report and I/O's App.

Dated: 21/06/2013"

He was taken into Police custody on 17.06.2013. He met Mr. Rabinder Pal Singh on 19.06.2013 during the custody period and Mr. Rabinder Pal Singh, coming to know about the torture, filed Petition No. 400/2013, on 20.06.2013, in the Court, alleging, therein, that the petitioner had tortured the complainant. Ms. Inderpal Kaur, wife of the complainant, also filed petition, being Petition No. 413/2013, on 21.06.2013, in the Court.

(36) On production, on 21.06.2013, the learned Magistrate noticed marks of violence on the body of the complainant. On the same day the complainant told the learned Magistrate regarding physical torture and pouring of petrol into his anus. As directed by the learned Magistrate, the statement of the complainant was recorded by a Magistrate, on 24.06.2013. In the said statement, the complainant specifically stated that the petitioner and three other Police personnel had beaten him with hockey stick, that his right shoulder bone was broken, that petrol was thrown into his anus and penis and that he was threatened with dire consequences.

(37) From the above, it appears that the complainant made the allegations, regarding torture by the petitioner, at the earliest available opportunity i.e. immediately on his production before the learned Magistrate.

(38) The complaint was filed after his release from custody. In the complaint, he reiterated the earlier allegations. It has been specifically alleged that the petitioner had tortured the complainant by beating him with hockey stick and pouring petrol on his private parts, during the said custody period. It has also been alleged that, though he was medically examined during the custody period, the Police officials had managed the medical report, and as such he was required to get himself examined in the G.M.C. H. and G.N.R.C. due to fracture of his right hand. It was also alleged that due to physical torture, he was not in a position to move his right hand and that he was tortured for extorting confession.

(39) In his statement, made under Section 200 Cr.P.C. also, the complainant stated that the petitioner had assaulted and tortured him by beating with hockey stick and pouring petrol on his private part, for which, he sustained injury. He stated that, after his release, he got examined in GMCH, GNRC and Matrix Hospital and that the X-ray report revealed that he had suffered fracture injury in respect of his right hand, shoulder bone. He alleged that he was unable to work with his right hand.

(40) Both, Inderpal Kaur (wife of the informant) and Mr. Rabinder Pal Singh, by making statements, under Sections 202 Cr.P.C., supported the allegations, made by the complainant on material points. The medical 26 reports, dated 19.06.2013 and 21.06.2013, reveal that the complainant sustained injuries during the period of police custody. The medical report, dated 19.06.2013, supports the allegation of fracture injury in respect of acromion process and that modified shoulder immobilization was applied requiring fitting of splint. According to the complainant, he was released on 29.08.2013 and thereafter, he attended GMCH and GNRC, wherein fracture injury on his right hand was detected. In support of the said contention, the complaint has produced the medical examination report, dated 20.09.2013, received from the GNRC, the medical prescriptions dated 12.09.2013 for medicine, issued by the Medical Officer of Al Hayat Medicos, the MRI report dated 25.09.2013, issued from the GMCH. The MRI impression was as follows:

(41) Though the said report indicated normal bones, normal spaces, the X-ray of right shoulder joint, revealed ossified body/bony fragrant. The X-ray report dated 20.09.2013, in respect of the right shoulder (AP view) revealed possible dislocation on the acromio clavicular joint. The medical report dated 20.09.2013 and the medical report dated 19.06.2013, issued from the MMC Hospital reveal right acromion process fracture involving shoulder immobilization.

In view of the above, the petitioner's contention, that the complainant did not sustained any grievous injury or fracture etc., can't be accepted to negate the findings given in the reports, dated 19.06.2013 and 20.09.2013 and the allegation made by the complainant. Of course, as per the X-ray report, dated 26.06.2013, issued from the GMCH, the bone of both knees and right shoulder joint were found intact. The said report appears to be contradictory to the report dated 19.06.2013, issued from the MMCH and the report dated 20.09.2013, issued from the GNRC. The complainant has alleged that the medical reports, obtained during the period of custody, were managed by the Police. As revealed from the GNRC's report, it appears that the complainant, after his release, on bail, got examined and fracture in his right shoulder was found.

The said medical reports, dated 19.06.2013 and 21.06.2013, the medical prescriptions, dated 21.08.2013 and 21.09.2013, disclose that the complainant was required to be on medication after the period of police custody and also after his release from custody i.e. after 90 days. Hence, it appears that he was suffering for the said torture for more than 20 days besides sustaining fracture of bone. This indicates existence of ingredients of Section 320 IPC constituting the offence under Section 325 IPC.

(42) The contention, raised on behalf of the petitioner, that the said injuries were self inflicted injury, caused by rubbing the body against a hard substance, is without any substance. This is a defence plea and the petitioner will have to prove the same by adducing convincing evidence.

Hence, the allegations brought by the complainant cannot be thrown out holding the injuries were self inflicted injuries.

(43) Cognizance of an offence is to be taken on the basis of the allegations/averments, made in the complaint or the FIR , as the case may be. Existence of a prima-facie case constituting an offence against the accused is sufficient to take cognizance.

(44) The complainant, in his complaint, filed on 08.10.2013 aforesaid, specifically stated that, due to the said assault, caused by the petitioner, he was not in a position to work with his right hand and that he was unable to move his said hand till the date of filing the complaint. The medical reports, dated 19.06.2013 and 20.09.2013, indicated that the complainant suffered fracture injury and he was required to be undergone medical treatment till 12.09.2013. The medical prescriptions, dated 29.08.2013 and 12.09.2013 support the said claim of the complainant. Hence, it appears that, apart from sustaining fracture injury, the petitioner was suffering from bodily injuries/ pains for more than 20 days and he was unable to follow his ordinary pursuits, inasmuch as he could not move his right hand. In view of the above discussion, it is found that the allegations made against the petitioner disclose a prima- facie case under Section325 IPC.

(45) The order, dated 17.06.2013, indicates that on the date of giving into custody, he did not bear those injuries. This is fortified by the orders dated 17.06.2013 and 21.06.2013 and the observations made therein. This indicates that the complainant sustained injuries during the 29 custody period. The complainant specifically alleged that he was inhumanly tortured including beating with hockey stick and also by throwing petrol on the private parts during the police custody in the pretext of interrogation for extorting confession. The said allegations and the above discussed injuries prima-facie disclose the offence under Section 331 IPC.

(46) The learned Sr. Counsel, appearing for the petitioner, has submitted that the petitioner, being a senior Police Officer, was supervising the Ajit Singh murder case and that the complainant was interrogated as a routine duty.

Admittedly, the petitioner had interrogated the complainant during the period of custody. Assault or torture during the interrogation, in respect of a person in custody, can't be linked with official duty. As discussed above, the allegations, made against the petitioner have disclosed a prima facie case under Sections 325 and 331 IPC.

It is submitted on behalf of the petitioner that the allegations of torture are false and concocted and that the same has been brought to frustrate the investigation in the said murder case. Undoubtedly, this is a defence plea, to be proved by the accused at a later stage.

(47) The law regarding exercise of quashing power under Section 482 Cr.P.C. has been clearly laid down by the Supreme Court in a catena of decisions.

In the case of Harshendra Kumad D. -Vs.- Rebatilata Koley, reported in (2011) 3 SCC 351, the Supreme Court observed:

In the said case, the Supreme Court further observed:-

(48) In the case of State of Haryana -Vs. Bhajanlal, reported in [1992 Supp (1) SCC 335], the Supreme Court observed as follows and laid down the following guidelines relating to the exercise of the extraordinary power under Article 226 0f the Constitution of India or the inherent Powers under Section 482 Cr.P.C.

While laying down the said guidelines, the Supreme Court also cautioned as follows:

In the said case, it was submitted that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding an office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of certain personal rancor, predilections and past prejudices of the complainant.

In this regard, the Supreme Court observed that the answer in such a case, would be that the person who dishonestly makes such allegation is liable to be proceeded against under the relevant provision of the Indian Penal Code --- namely under Section 182 or 211 or 500, besides becoming liable to be sued for damages.

(49) In the case of Dhanalakshmi -Vs.- R. Prasanna Kumar and Ors., reported in AIR 1990 SCC 494, the Supreme Court observed:

(50) In the case of J.P. Sharma -Vs.- Vinod Kumar Jain, reported in (1986)3 SCC 67, the Supreme Court held that the jurisdiction under Section 482 Cr.P.C. for quashing a criminal proceeding should not be exercised in a case where prima-face case is made out on the basis of the allegations made in the complaint. The Supreme Court further observed-

(51) In the case of Ajay Kumar Das (Supra), the Supreme Court laying down the principle of quashing under Section 482 Cr.P.C. observed that:

(52) In the case of State of Orissa (Supra), the Supreme Court observed that at the stage of consideration of charge, no roving or fishing enquiry is permissible. The Supreme Court, also observed that the High Court, in exercising such jurisdiction under Section 482 Cr.P.C. may consider unimpeachable evidence of sterling quality.

(53) In the case of Krishnan (Supra), the Supreme Court held that a document not specifically ruling out the possibility of the accused's presence in the site of occurrence can't be relied upon in support of the plea of alibi.

(54) In the light of the above decisions and the principles, laid down by the Apex Court, it is settled position of law that the power of quashing a criminal proceeding, arising out of a complaint/ FIR is required to be exercised very sparingly that too, in rarest of rare case, more particularly, in a case where the allegations made in the FIR/complaint, as the case may be, do not disclose a prima-facie case. In the absence of a prima- facie case, the proceeding may be quashed to prevent miscarriage of justice and abuse of process of the Court.

(55) In the case at hand, in view of discussions, made earlier, there is no difficulty in concluding that the allegations made in the complaint disclose a prima-facie case under Sections 325 and 331 IPC. Whether the allegations are true or false is a question to be decided on the basis of the evidence to be collected and produced at a later stage. This Court is not required to make a roving enquiry in respect of the merit of the allegations. The petitioner will have to prove, by adducing evidence, his plea that false and concocted allegations have been brought with a view 37 to frustrate the investigation in the said murder case. This is not the stage to accept the said defence version. The petitioner, in support of his contention, has not been able to produce any such document, which, on the face of it, is beyond doubt or suspicion. None of the guidelines, laid down in the case of Bhajanlal (Supra), is applicable in the present case. In view of the above, I find no sufficient ground for interfering with the said proceeding in exercise of jurisdiction under Section 482 Cr.P.C.

(56) Now the question is whether the criminal proceeding, against the petitioner is bad for want of sanction under Section 197 Cr.P.C. In the case of Sankaran Moitra (Supra), the allegations brought against the Police Officer (appellant), was that the husband of the complainant was beaten death. The appellant took the plea of sanction under Section 197 Cr.P.C. and prayed for quashing the proceeding. The High Court dismissed the quashing petition, observing that it was a case of merciless beating by the Police Officer and causing death of a person and that it could not be said to be an act in the discharge of official duty and held that no sanction under 197 Cr.P.C . was necessary. On appeal, the Supreme Court upheld the High Court's decision.

(57) In the case of Om Prakash (Supra), a complaint was filed against Five Police Officers alleging that they killed his son in a fake encounter. The Police Officers took the plea of want of sanction under Section 197 Cr.P.C. The Supreme Court with the following observation quashed the proceeding for want of sanction.

In the said case, Police, who were performing their duty, were attacked and killed. The fact of the said case is different from the case at 39 hand. Hence, observations made, therein, will not apply to the present case.

(58) In the case of Shree Kantiah Ramayya Munipalli (Supra), the allegations against the appellants government servants was that they being in charge of government stores entered into a conspiracy to defraud the government and arranged to sell the store to the approver (PW-10. Charges under Section 5 (2) of the Prevention of Corruption Act, 1947 and Section 409 / 34 IPC were framed. Charge under Section 5 (2) P.C. Act , 1947 was subsequently dropped and charge under Section 120 B, 409, 109 were framed. The accused persons were convicted. The Supreme Court observed that the disposal of the goods were in discharge of official act.

The Supreme Court observed:

(59) In the case of Amrik Singh (Supra), it was the duty of the appellant, who was the Sub Divisional Officer in the Public Department to disburse the wages of the workmen, employed in the works. It was the practice to pay by taking signature of thumb impression of the employee. The prosecution case was that there was, in fact, no person of the name of Parma, that the thumb impression found in the acquaintance roll was that of the appellant himself. Charge was framed under Section 409 IPC and the appellant was convicted. Plea of sanction under Section 197(i) Cr.P.C. was taken. The conviction was set aside with the following observation:

(60) In the case of Matajog Dobey (Supra), the Income Tax Investigation Commission was required to search two premises to inspect, take copies and secure certain books, papers and documents believed to be in there. A warrant was obtained from the Commission for the said purpose. The authorized officials went to the said premises and 41 on being challenged by the darwan of Kaniram Agarwala, they broke upon the door, went inside and interfered with store boxes and drawer of the books. They tied the darwan Matang Doobey with a rope and assaulted causing injuries. On these facts, three complaints were filed under Sections 323 , 341 , 342 and 109 IPC. Referring to the decision held in the case of Shree Kantiah Ramayya Munipalli (Supra), the Supreme Court observed that the assault and use of criminal force etc. alleged against the accused were related to the performance of the official duties.

The Supreme Court also observed:

(61) In the case of State of Orissa through Kumar Raghvendra Singh and Others (Supra), it was alleged that six Forest Officers had falsely implicated the complainant (respondent) for the offences under the Orissa Forest Act, 1972 , the Wild Life Act, 1972 and assaulted him thereby committing the offences under Sections 341 , 323 , 25 , 506 , 386 , 42 34 IPC. The trial court and the High Court took the view that no sanction under Section 197 of the Code was necessary.

The matter was taken to the Supreme Court by filing an appeal. In the said case, according to the prosecution, large quantity of ivory was seized from the complainant and he could not justify the possession thereof. It was found that, on 28.02.1991, the accused persons, on being produced before the SDJM, were specifically asked regarding any ill treatment and, on the contrary, he replied that there was no ill treatment. The Court held that the said statement, made by the complainant, before the SDJM struck at the credibility of the complainant. While quashing the said criminal proceeding against the Forest Officers, the Supreme Court observed that the protection under Section 197 Cr.P.C. was available inasmuch as the alleged act done by public servant was reasonably connected with the discharge of his official duty. The Supreme Court further observed that in doing official duty, if the public servant acts in excess of his duty and there is reasonable connection between the act and the official duty, the excess will not be sufficient to deprive the public servant of the protection.

(62) In the case of D.K. Basu (Supra), the Supreme Court observed:

Using any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, would be impermissible, being offensive to Article 21. Such a crime- suspect must be interrogated-indeed subjected to sustained and scientific interrogation-determined in accordance with the provisions of law. He cannot, however, be tortured or subjected 44 to third-degree m ethods or elim inated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to "terrorism". That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

41. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort 45 confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code . The statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legally injury is a compulsion of judicial conscience."

(63) In the case of Munshi Singh Gautam (Supra), the Supreme Court observed " Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image 46 of any civilized nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually loss faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."

(64) In view of the above decisions and the observations, made therein, an arrested person i.e. a person in custody can't be subjected to any form of torture causing injury or hurt. The officer doing such act of human right violation is liable for punishment under the penal law.

(65) In the case of D.K. Basu (Supra), the Supreme Court, in clear terms, has held, torture in custody not permissible and lawful. As held by the Supreme Court, for such unlawful activity, the guilty Police Officer is liable to penal action. From the above decisions, it is clear that once a person is arrested and taken into custody, no physical or mental hurt or injury can be intentionally caused to the arrested person. The well being and safety of such persons should be the prime concern of the person in charge of such custody. Therefore, under no circumstances such person 47 can be subjected to torture not to speak of hurling abuses with racial slur and throwing petrol into the private parts. Such acts are certainly inhuman and barbaric, not permitted by civilized society. Though interrogation of an arrested person for the purpose of investigation is permitted by law, physical assault and any other form of torture is not permitted. Law does not permit any person including the supervising Police Officer or the Investigating Officer to assault and torture the arrested person. Such acts can't be accepted as the act done in discharge of official duty by a public servant. Torture in custody can't be linked with official duty.

(66) As discussed above, in the present case, it has been clearly alleged, in the complaint, that the petitioner, besides assaulting the complainant in custody, poured petrol into his private parts. The above discussed medical reports support the said allegations of torture in custody. Hence, the said alleged acts have nothing to do with official duty. Such inhuman act cannot be remotely connected with official duty. Therefore, the protection under Section 197 Cr.P.C. is not applicable in the present case.

(67) From the communication dated 10th June, 2014, issued by the Assistant Registrar (Law), National Human Rights Commission, it appears that the complaint, filed by the wife of the complainant was closed on the ground that the complainant failed to substantiate the allegation by submitting her comments. Hence, the commission concluded that no further investigation was required. It appears that the complaint was not dismissed on merit.

(68) That apart, in view of the above discussed allegations, made by the victim complainant, in his complaint, filed before the criminal Court seeking criminal trial, the closure of the said complaint by the Human Rights Commission, can't be sufficient ground to quash the criminal proceeding. The filing of the said complaint before the Human Rights Commission by the wife of the victim can't negate the right of the victim to approach a criminal Court of law. Hence, on the face value of allegations, made in the complaint, I find no force in the contention that the present complaint, filed by the complainant, was motivated with malice.

(69) In view of what has been discussed above and findings regarding existence of a prima-facie case under Sections 325 and 331 IPC involving custodial torture, I don't find it to be a fit case for quashing the proceeding in exercise of jurisdiction under Section 482 Cr.P.C. Hence, I find no merit in this petition.

(70) Accordingly, the criminal petition is dismissed. Stay order stands vacated.

(71) Parties shall appear before the trial Court within 30 (thirty) days from this date.