P. Mahalingam Vs. Monica
Kumar & ANR.
[Contempt Petition (CRL.)
No.7 of 2010 (In Criminal Appeal No.2323 of 2011 (Arising out of Special Leave
Petition (CRL.) No. 666 of 2010)]
Monica Kumar & ANR.
Vs. State of U. P. & Ors.
No.2323 of 2011 (Arising out of Special Leave Petition (CRL.) No. 666 of 2010)]
O R D E R
A.K. PATNAIK, J.
Appeal No.2323 of 2011 (Arising out of Special Leave Petition (Crl.) No. 666 of
2010) Leave granted.
is an appeal by way of special leave under Article 136 of the Constitution against
the order dated 05.12.2009 of the Division Bench of the Allahabad High Court dismissing
the 2 Criminal Misc. Writ Petition No.23839 of 2009 of the appellants.
relevant facts as stated in the Special Leave Petition briefly are that the appellants
studied M.B.B.S. course in the Santosh Medical College at Ghaziabad in Uttar Pradesh
and respondent No.2 is the Chairman of the Maharaji Educational Trust which has
established the medical college.
The appellant No.1 filed
Writ Petition No.33 of 2009 in this Court under Article 32 of the Constitution complaining
of harassment by respondent No.2 and by the police and on 13.05.2009, this Court
passed orders directing issue of notice in the writ petition. On 22.05.2009, the
Registrar of this Court directed that the notice be served by way of dasti on the
unserved respondents in the writ petition.
When the appellants
went to serve the respondent No. 4, who was then the SHO of Police Station Sector
39, NOIDA, Gautam Budh Nagar, U.P., on 28.05.2009 at about 10.30 A.M., the
respondent No.4 and his subordinates started brutally assaulting them with lathis,
shoes and fists and caused numerous injuries on all parts of their bodies.
Thereafter, the appellants
got themselves examined at Lok Nayak Government Hospital, New Delhi, and an x-ray
of the hand of appellant No.1 was also taken which disclosed a fracture and
thus her left hand was put in plaster. The appellants made a written complaint to
the Senior Superintendent of Police, NOIDA, on 29.05.2009 but he refused to
accept the complaint.
appellants then filed Criminal Misc. Petition No.9226 of 2009 in Writ Petition
(Criminal) No.33 of 2009 complaining of the aforesaid assault and on
07.07.2009, this Court passed an order that the Criminal Misc. Petition be
placed along with the main matter and in the meanwhile directed the appellants to
approach the District Magistrate, NOIDA, regarding the grievances. The
appellants approached the District Magistrate, NOIDA, but they were informed
that he was on vacation.
The City Magistrate,
however, called the appellants to his office and took the video recorded
statements but did not do anything in the matter. On 20.07.2009, this Court dismissed
the Writ Petition (Criminal) No.33 of 2009 and granted liberty to the appellants
to approach the High Court under Article 226 of the Constitution, if so
advised. Thereafter, the appellants filed Writ Petition (Criminal) No.23839 of 2009
before the High Court praying inter alia for a CBI inquiry into the incident
which took place on 28.05.2009 when the appellant had gone to serve dasti summons
on respondent No.4.
The High Court,
however, held in the impugned order that in this case the FIR had not been registered
and there was no question for considering any prayer 4 for CBI inquiry at this stage
and instead directed that the appellants may file an application under Section 156(3)
of the Criminal Procedure Code, 1973 (for short `the Cr.P.C.') and in case any such
application is filed, the Magistrate may pass appropriate orders thereon. With the
aforesaid observations, the High Court dismissed the writ petition.
respondent No.4 has filed an affidavit stating that the appellants were not assaulted
in the police station on 28.05.2009 as alleged by the appellants. In the affidavit,
however, the respondent No.4 has stated that on 28.05.2009 when the appellant
had gone to the Police Station to serve the dasti summons, it was noticed that they
were video recording with a sting camera and this was objected to and articles
were seized from them in the presence of three public witnesses and the
appellants gave an apology later.
appellants have filed a rejoinder reiterating that they were assaulted on 28.05.2009
at 10.30 A.M. and they were detained in the Police Station of Section Sector
39, NOIDA, for 4 to 5 hours and during this period the appellants were repeatedly
assaulted and abused and the appellant No.1 was molested by respondent No.4 and
they were released only after the mother of the appellants called the Senior Superintendent
of Police of NOIDA, who thereafter called the respondent No.4 to release the
appellants at about 4.00 P.M.
hearing learned counsel for the parties, we passed orders on 11.05.2010 directing
the District and Sessions Judge, Gautam Budh Nagar, U.P., to enquire into the
incident of 28.05.2009 when the appellants had gone to serve the dasti summons of
this Court and pursuant to the aforesaid order dated 11.05.2010, the District and
Sessions Judge, Gautam Budh Nagar, U.P., assigned the inquiry to the Additional
Chief Judicial Magistrate III of Gautam Budh Nagar, U.P., who after conducting the
enquiry has submitted the report dated 16.11.2010.
We have considered the
objections to the report and heard learned counsel for the parties. The
conclusions in the report dated 16.11.2010 of the Additional Chief Judicial Magistrate
III of Gautam Budh Nagar, U.P., are extracted hereinbelow:
a. "1. Ms. Monica
Kumar and Shri Manish Kumar had gone to Sector 39 Police Station in NOIDA on 28.05.2009
for serving a dasti notice of Hon'ble Supreme Court upon Shri Anil Samania, Station
House Officer, Sector 39 Police Station in NOIDA.
b. 2. Ms. Monica Kumar
and Shri Manish Kumar were subjected to brutality in Sector 39 Police Station, NOIDA
by Shri Anil Samania, Inspector, Shri J.K. Gangwar, Sub Inspector and few
c. 3. Tailored entries have
been made on 28.05.2009 in the General Diary of the Police Station for cover up.
d. 4. The complaint in the
matter was made with serious allegations against Shri Anil Samania but the complaint
was not dealt with properly and the matter was given a decent burial.
e. 5. The Sub-Inspector,
In-Charge of the Complaint Cell in the office of the Senior Superintendent of Police,
Gautam Budh Nagar, Shri Rishi Pal Singh, failed in his duty to place the
complaint before the higher authorities for proper action in the matter.
f. 6. The Superintendent
of Police (Traffic), Gautam Budh Nagara, Shri Ajay Sahdav, failed in his supervisory
duty in as much as without perusal of the accusations in the complaint and the action
taken/required thereon, allowed entombment of the grievance in the complaint.
g. The Senior Superintendent
of Police, Gautam Budh Bagar Shri Ashok Kumar Singh appears to have shut his eyes
to what had happened in the Police Station on 28.05.2009.
of Dr. P. Mahalingam in the incident on 28.05.2009 could not be established. Thus,
it cannot be said that the complainants were packed down at the will of the Chairman
of Santosh Medical College, Ghaziabad, Shri P. Mahalingam."
8. Thus, the conclusions
in the report dated 16.11.2010 of the Additional Chief Judicial Magistrate quoted
above are that the appellants were subjected to brutality in Sector 39 Police Station,
NOIDA, by Inspector Anil Samania (Respondent No.4), Shri J.K. Gangwar, Sub-Inspector
and few constables and tailored entries were made on 28.05.2009 in the General
Diary of the Police Station for a cover up and when a complaint was made to the
Senior Superintendent of Police, Gautam Budh Nagar, U.P., the Sub-Inspector,
In-charge of the
Complaint Cell Shri Rishipal Singh failed in his duty to place the complaint before
the higher authorities for proper action in the matter. The further conclusion in
the report dated 16.11.2010 of the Additional Chief Judicial Magistrate is that
the Superintendent of Police (Traffic), Gautam Budh Nagar, U.P., Ajay Sahdav, failed
in his supervisory duty and allowed entombment of the grievance in the complaint
and the Senior Superintendent of Police, Gautam Budh Nagar, Ashok Kumar Singh appears
to have shut his eyes to what had happened in the Police Station on 28.05.2009.
The conclusions in the
report dated 16.11.2010 of the Additional Chief Judicial Magistrate prima facie
establish acts and/or omissions of the various police personnel which were
committed when the appellants had gone to the police station to serve the dasti
summons issued by this Court and which amount to misconduct of serious nature.
We, therefore, direct
the respondent No.1 to treat the report dated 16.11.2010 of the Additional Chief
Judicial Magistrate III of Gautam Budh Nagar, U.P., as a preliminary report and
initiate disciplinary proceedings against the police personnel named in the conclusions
thereof and conduct the disciplinary proceedings in accordance with the
relevant rules, giving to the police personnel reasonable opportunity of being heard
in 8 respect of the charges as provided in the Rules and in Article 311(2) of the
Constitution and complete the disciplinary proceedings within one year from
will also be open for the appellants to file criminal complaint under Section
200 of the Cr.P.C. on the basis of the conclusions in the report dated 16.11.2010
of the Additional Chief Judicial Magistrate III of Gautam Budh Nagar, U.P., before
the appropriate Magistrate for prosecuting only those police personnel who are
alleged to have committed any offence, and if such a complaint is filed, the
same will be dealt with in accordance with law.
impugned order of the High Court is set aside and the appeal is allowed to the
extent indicated above. No costs. Contempt Petition (Crl.) No.7 of 2010 in Criminal
Appeal No.2323 of 2011 (Arising out of Special Leave Petition (Crl.) No. 666 of
2010) When this Contempt Petition was heard along with S.L.P. (Crl.) No.666 of
2010, Mr. K.K. Venugopal, learned counsel for the applicant, submitted that an
apology has been given by the contemnors pursuant to the orders passed by this Court
in Criminal Appeal No.968 of 2009 (arising out of S.L.P. (Crl.) No.5593 of 2006)
and this apology is in force.
He further submitted
that the facts stated in the Contempt Petition would show that the contemnors are
repeatedly intimidating the 9 applicant and his family members and for this reason
the applicant has made a prayer to the Court to pass an order commanding the
contemnors not to enter within 100 metres of the premises of Santosh Medical
College and its administrative block, hospital, hostel and the residence of the
2. In reply, Mr. Prashant
Bhushan, learned counsel for the contemnors, relying upon the averments in the reply,
submitted that Santosh Medical College is next to the residence of the contemnors
and that the Medical College is on the main public road, which is the only road
that leads to the city and shopping complex from the residence of the contemnors.
He submitted that the bank and the public transport are also next to the office
of the Medical College.
He submitted that if any
order as prayed for by the applicant is passed by this Court then the
contemnors will be deprived of access to the city and the shopping complex as
well as the bank and the public transport. 3. We cannot possibly direct the
contemnors not to go to any public place such as the public road, bank, shopping
complex but considering all aspects of the matter, we direct that the two contemnors
will not enter into the premises of Santosh Medical College, its administrative
block, its hospital, its hostel and the residence of the applicant. The Contempt
Petition is disposed of accordingly.
(A. K. Patnaik)