Jage Ram, Inspector of Police & ANR
Vs. Hans Raj Midha [1971] INSC 313 (18 November 1971)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION: 1972 AIR 1140 1972 SCR (2) 409 1972
SCC (1) 181
ACT:
Judgment Expunging of remarks against
authorities whose conduct comes into consideration before courts-Principles to
be followed Habeas Corpus-Duty of Court.
HEADNOTE:
The High Court in its order disposing of a
habeas corpus petition stated that the detenu had been taken into custody on
the 5th of May, 1968, that his arrest "had surreptitiously been"
sworn to have taken place on the 10th of May, 1968, and that he was subjected
to torture resulting in injuries. The appellants filed appeal in this Court to
expunge these statements.
Dismissing the appeal, HELD: In State of U.P.
v. Mohammad Naim, [1964] 2 S.C.R.
363, this court has observed that the matters
which have to be kept in view in considering whether the remarks made in
judgments against authorities whose conduct comes into consideration before the
courts of law in cases to be decided by them are disparaging are : (a) whether
the party whose conduct is in question is before the Court or has any
opportunity of explaining or defending himself; (b) whether there is evidence
on record bearing on that conduct justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognised that judicial
pronouncements must be judicial in nature and should not normally depart from
sobriety, moderation and reserve. [420 D] On the facts of the case and the
evidence on record, none of the remarks to which exception has been taken could
be described as unwarranted, unnecessary or irrelevant or can be characterised
as generalisation or of a sweeping nature.
The appellants had opportunity of filing
their affidavits to give their own version, which, they have done in great
detail, showing that they knew what the allegations against them were. If they
wanted to produce any other person in support of their stand that the accused
was only arrested on the 10th and not on the 5th or that the injuries found on
the accused were old and were not fresh, they could have done so.
In a habeas corpus petition where allegations
are made that a citizen of this country is in illegal custody, it is the duty
of the Court to safeguard the freedom of the citizen which has been guaranteed
to him by the Constitution and to immediately take such action as would ensure
that no person, however high or low, acts in contravention of the law or in a
high handed arbitrary or illegal manner. While no doubt it is the duty of the
Court to safeguard against any encroachment on the life and liberty of
individuals, at the same time, it has to be recognised that the authorities who
have the_ responsibility to discharge their functions vested in them under the
law of the country should not be impeded or interfered with without
justification. In furtherance of this duty the High Court passed the orders
which in the circumstances of the case were fully justified. [419 F] 410
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal no. 35 of 1969.
Appeal by special leave from the judgment and
order dated May 20, 1968 of the Punjab and Haryana High Court in Criminal
Original No. 50-M of 1968.
R. N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by P.
Jagammohan Reddy, J. This appeal is for expunging certain remarks made against
Appellants in the order of the Punjab & Haryana High Court on a Habeas
Corpus Petition filed by one Hans Raj Midha for the production of his son Prem
Prakash Midha who is said to have been detained illegally by the Central
Investigation Agency (C.I.A.) Staff Kamal. In an investigation of an offence of
theft committed on 1-4-68 of a Cash Box containing Rs. 10667/87 from the Head
Post Office, Kamal where the said Prem Prakash Midha was working as a Clerk
Incharge in the Savings Bank Section.
It appears from the Habeas Corpus Petition
presented to the High Court on 10-5-68 that after Prem Prakash who was working
in the Bank, had gone out to meet his wife and came back he found the cash box
missing. Immediately he reported the loss to the Assistant Post Master. It also
appears from the affidavit filed on the return made by the appellant Jage Ram
that a report of the theft of Rs. 10667/87 belonging to the Postal Department
was given on the same day over the telephone, an F.I.R. was issued under Sec.
380 IPC by the Police Station, City, Karnal. After tie Police had investigated
the offence the investigation was handed over to the CIA Karnal under the
orders of Superintendent of Police, Karnal on 24-4-68. The Petitioner's father
alleged in his Habeas Corpus petition that his son Prem Parkash was
interrogated in his house before the case was entrusted to the CIA but nothing
incriminating was discovered; that on 55-68 at about 5 p.m. he was taken away
by ASI Dyal Chand and a foot constable as Prem Parkash was wanted by Shri Jage
Ram, Inspector CIA; that Shri Ravinder Mehta the brother-inlaw of the accused
went to the CIA Staff office at Model Town and found him in their custody, but
he was not allowed to meet him that day. The next day on 6-5-68 the father went
to the Police Station at Model Town to see him but he was not allowed to enter
the premises nor was he allowed to interview his son. While the father was
there he heard the cries of his son who was obviously being tortured.
Ravinder Mehta also visited the CIA staff on
7th and 8th and 9th May 1968 and heard the cries and wailing of Prem Prakash
who was being tortured. The father of the petitioner 411 had also visited the
Police Station from 7th to 9th when he heard the hue and cry of Prem Prakash.
It was alleged that Jage Ram, Inspector CIA and Dyal Chand, ASI were torturing
Prem Prakash brutally and illegally and prayed that "a search warrant may
be issued and a Court officer may be deputed to effect the search of Prem
Prakash at the CIA Staff, Model, Town Karnal or at any place pointed out by the
father of Prem Prakash, his wife or his brother-in-law Ravinder Mehta;"
that a rule for the production of Prem Prakash may be issued and that he may
also be medically examined immediately. On the petition being presented on
10-5-68 the same day Jindra Lal, J. sitting singly passed the following order
"Rule returnable on Monday the 13th May, 1968.
On the request of the learned Counsel I
appoint Shri Sadhu Ram Gupta, my Reader to accompany the petitioner and to
search the office of the C.I.A. Staff Kamal, or any other place where the
detenu is alleged to be confined. If the detenu is really in the custody of the
Respondents, he must be produced before this Court on the 13th May, 1968, also
if he is really in the custody of the Respondents or any other detaining
authority in Kamal he must be forthwith medically examined by the Chief Medical
Officer, Kamal, or in his absence from Kamal, the Officer next in Charge".
In compliance with these orders, according to
the report of Shri Sadhu Ram Gupta the Reader of the learned Judge, he reached
the C.I.A. Staff Office at 8.30 P.M. on the same day accompanied by the father
of the accused and one Shri Narinder Singh an Assistant in the Criminal Branch
of that Court whom he took after obtaining verbal permission of the Judge as he
has been going on such raids previously. After reaching the Police Station they
saw one Kashmiri Lal constable (No. 267) who on enquiry told them that the
Inspector and the Asstt. Inspector had gone to take their meals. They then
entered the main building and asked the petitioner to call out the detenu by
his name and heard the faint voice of Prem Prakash Midha coming from a room.
They lit the torch and opened the shutters and found Prem Prakash Midha lying
on a gunny carpet spread on the floor and saw that his feet were swollen and he
had some injuries on his head. The accused told them that he had been called on
the 5th May 1968 by Dyal Chand and some constables and was detained in the
C.I.A. Staff since then. He was not allowed to move out nor any of his relatives
were allowed to see him. He also told them that he had been daily administered
beating with a chanda by both the respondents. On their enquiry Kashmiri Lal
told them that there were no papers relating to enquiry in connection with
which the detenu had been detained nor was 13-L 500 Sup CI/72 412 there any
daily diary register maintained in the C.I.A.
staff office. In the meantime when another
constable Uma Datt in plain clothes reached there he was taken aside by
constable Kashmiri Lal who asked him to inform the Respondents i.e. the
Inspector and the Asstt. Sub.
Inspector about the purpose of their arrival.
At about 9.10 p.m. the said constable came and told that he had informed the
Respondents and that they would reach soon. At 9.25 p.m. one person in plain
clothes came in the courtyard on a cycle and when asked if Respondent No. 1
namely the Inspector had come, he told him that he would just go and bring him.
As soon as he had asked him to go some relatives of the petitioners who were in
the courtyard told him that he was ASI Dyal Chand Respondent No. 2, add
immediately the Court Reader asked him not to go but in spite of it he went
away on his cycle. Al 10.50 p.m. Jage Ram Respondent 1 reached the office and
told him that the detenu was under their legal arrest. When he was requested to
show him the papers concerning the arrest of the accused Respondent 1 told him
that the papers were with Respondent 2 and he directed Kashmiri Lal to ask
Dayal Chand to bring the relevant papers. At about 11.15 p.m. someone out of
the relatives of the petitioner had told them that Respondent 2 was busy
writing some papers in a nearby house and he therefore asked Shri Narinder
Singh to go and find out the matter. Within ten minutes Shri Narinder Singh
came back with ASI Dayal Chand and told him in the presence of the Respondent
No. 1 that the ASI was preparing a Zimini and that he had taken out the carbon
papers in his presence and that further the ASI had tagged those papers along
with the police life. Respondent No. 2 handed over the file to Respondent I
which related to the FIR No. 88 dated 1-4-68 P.
S. Saddar Karnal for an offence under Sec.
380 IPC. It was neither indexed nor page marked. The last zimini was No. 25
which Narinder Singh told him he had seen Respondent 2 writing and it was
tagged in his presence. This Zimini in which the reasons for the detenu being
an accused and his arrest are was dated 10-568, and it did not bear any time
there on given initialled by the Court Reader. The Court Reader further says that
no remand order was shown to him but an application for remand and forwarding
endorsement of the Government Pleader dated 10-5-68 was shown to him which he,
initialled on being asked by Respondent No. 1 to do so. Thereafter he served
the notices on both the Respondents. After the notices served Respondent 1
asked Respondent 2 to take the detenu to Duty Magistrate for his remand. The
Court Reader asked the Respondents to get the detenu medically examined before
the remand was taken but they did not care and took him on their cycle to the
residence of the Magistrate at 11.35 p.m. The Court Readers and other followed
them and found them talking with the Duty Magistrate in the gate of his 413
residence. The Court Reader brought the order of the Hon'ble High Court to the
notice of the Magistrate and also gave him a copy of the orders as desired by
him. Upon this the learned Magistrate ordered the remand of the detenu to the
judicial custody upto 13th May 1968 and also directed the Appellant to get him
medically examined by the Chief Medical Officer, Karnal. Respondent No. 2 took
the detenu to Civil hospital and wanted to get the detenu examined from the
Doctor on night duty but on their reaching the hospital and showing the orders
of the High Court the Doctor declined to examine and asked the Police and
themselves to take the detenu to the residence of the C.M.O. The C.M.O. was
awakened during the night at 1.35 a.m. and was shown the orders of the High
Court and after going through the same he made an endorsement that he would
himself examine the detenu in the morning after looking at the injuries and
ordered that the detenu be admitted in the hospital in the night.
Al 8.45 a.m. on 11-5-68 the C.M.O. himself
examined the detenu in their presence and handed over two copies of Medical
Iegal report which were enclosed with the report of the Court Reader. On 13th
May 1968 the detenu was produced before R. P. Khosla, J. alongwith the returns
filed by Jage Ram, Inspector and Dayal Chand, ASI.
According to Dayal Chand's affidavit he was
associated with the investigations along with Jage Ram Inspector from 4.5.68 to
9-5-68. On enquiry made from the Post office it was revealed that Prem Prakash
accused had not marked his attendance in the Post Office and he had sent the report
that the accused was out of station and on 8-5-68 the deponent himself went to
the house of the accused but could not find him there. It was on 10-5-68 when
he sent constable Bhagwan Dass No. 788 to the house of the accused he came back
and reported that the accused had met him and promisedto come and join the
investigation; accordingly at about 1 1.30 a.m. the accused came. At that time
Partap Singh, Inspector Weights and Measures and one Jaswant Rai were present.
The Respondent interrogated the accused from 11.30 to 12.25 noon and thereafter
arrested him at 12.30 noon. At the time of arrest the person of the accused was
searched and a memo relating to the search was prepared which was attested by
Shri Partap Singh and Jaswant Rai.
Another Memo was prepared giving the visible
injuries on the person of the accused. The deponent then wrote down the case
diary for 10.5.68 from 2 p.m. to 6 p.m. incorporating the entire investigation
for the day up to that time. As there was a paucity of constables in the CIA as
they were mostly on election duty the only constable who was available at the
time of the arrest of Prem Prakash accused was the Moharir constable Kashmiri
Lal. The deponent left Prem Prakash accused in the custody of Kashmiri Lal and
at about 6.15 p.m. went in search of his immediate officer Jage Ram,, 414
Inspector whom he contacted at about 7.30 p.m. and got the, remand papers
relating to the accused forwarded by him.
Then he went in search of H. P. Tiku,
Prosecuting Inspector whom he could contact only at 9. p.m. when the remand
papers were shown to him and got them forwarded by him also.
Thereafter with these remand papers and the
case diary in the basket of the cycle the deponent came to the office of the
C.I.A. staff with the intention of taking Prem Prakash to the Illaqa Magistrate
for remand. It may be useful to give his version thereafter in his own words
"But hardly had he entered the compound of the office when a gentleman who
informed the deponent that he had come from the High Court asked the deponent
to bring Inspector Jage Ram to him. The deponent told that gentleman that the
Inspector was on election duty and that the deponent would search him out and
bring him. The deponent thereupon went in search of the Inspector on a cycle.
The deponent did not hear any 'call of the reader from behind may be because of
the suffering of hard of hearing. The Inspector was found in P.W.D.
Rest House at about 10 p.m. and informed him
that some gentleman from the High Court had come and wanted to see him. Inspector
Jage Ram thereupon left for the office of the C.I.A. Staff.
That from the P.W.D. Rest House after
informing Inspector Jage Ram of the arrival of the gentleman from the High
Court the deponent went to find out whether the duty Magistrate was at his residence.
Finding the duty Magistrate at his residence the deponent came back to the
office of C.I.A. Staff where he came to know that the gentleman who had come
from the High Court was the Reader of Hon'ble Mr. Justice Jindra Lal and had
come with an order of the Hon'ble Judge in the Habeas Corpus Petition of Prem
Prakash accused. The order was served upon the deponent and deponent signed it
in token of service at 10.35 p.m, After that the deponent showed the case
diaries and the remand papers to the Reader, who signed both of them but
without mentioning the time. Before the duty Magistrate the reader again signed
the case diaries and mentioned a time underneath the signatures." The
return of Inspector Jage Ram gives some facts which he came to know as a result
of his investigation of the charge against the accused which is not relevant
for the purposes of this appeal. It however, appears that even according to him
the accused could 415 not be traced till 10.5.68 when on that day, because he
was busy in election arrangements he had directed ASI Dayal Chand to carry on
the investigation on that day and make an possible efforts to join the accused
Prem Prakash Midha with the investigation. He was informed at about 7.30 p.m.
by ASI Dayal Chand that the accused had been arrested at 12.30 noon and was
also shown the reasons of arrest written in the case diary and got the remand
papers forwarded from him. At about 10 p.m. Dayal Chand again contacted and
informed the deponent at the P.W.D. Rest House that a gentleman from the High
Court whom Shri S. M. Mehta who is the brother-in-law of the accused seemed to
have brought as 'Safarshi' wanted to see the deponent. He further mentioned
that previously also on 2-5-68 Ravinder Mehta accompanied by one other person
had come to the deponent with two letters from Shri Gurdian Singh Nurpuri who
was a Magistrate at Gidarabha when the deponent was posted there as Inspector
in 1965-66 and tried to influence the deponent in favour of the accused.
He enclosed the copies of these two letters.
Thereafter the deponent proceeds to say as follows "On receiving this
information from ASI Dial Chand the deponent proceeded to the office of the
C.I.A. Staff Kamal. There Shri Sadhu Ram Reader to the Hon'ble Mr. Justice
Jindra Lal introduced himself to the deponent and served upon him the orders of
the Hon'ble Judge at about 10.30 P.M. The deponent thereupon informed the
reader that the accused was arrested at about 12.30 noon on the same day by ASI
Dial Chand. His remand could not be taken so far due to preoccupation with
election work but ASI Dial Chand had already got the application for remand
endorsed from the deponent at about 7.30 P.M. and the accused was shortly going
to be produced before a Magistrate for purposes of obtaining remand. After
about 5 minutes ASI Dial Chand also reached the C.I.A. Office and showed the
case diaries and remand papers to the Reader, who signed both of them. At that
time the Reader had not given any time underneath his signature. Later on when
the remand papers and case diaries were produced before the Magistrate Shri N.
K. Jain the Reader again put his signature on the case diary and mentioned the
time as 11.15 p.m. underneath." In short both these officers deny the
allegations made in the Habeas Corpus petition of the father of the accused.
From the affidavits the case of the
appellants was that they had not arrested the accused on 5-5-68 as alleged nor
had the 416 kept him in their custody without obtaining a lawful order of
remand for their custody, but had arrested him only on 10-5 -68 at about 12.30
p.m. In so far as the order for remand to their custody from a Judicial
Magistrate is concerned it is clear from their statement that-it was got only
after the High Court's orders for the production of the accused were served on
them, though no doubt they say that because they were busy, the papers could
only be prepared and the Public Prosecutor's endorsement forwarding them could
only be obtained by about 9 p.m. on that day.
Secondly they do not deny that there were no
injuries on the accused, but it is only contended that they were old injuries
which were noted down. Thirdly there is a divergence in the statements of Dayal
Chand and Jage Ram that while Dayal Chand says as soon as he was asked by some
gentleman from the High Court to call Jage Ram he went away and that he did not
hear anything further due to his being hard of hearing even though he was
called back by that gentleman. While Jage Ram says that Dayal Chand had told
him that a gentleman from the, High Court whom Shri Mehta, who is the
brother-in-law of the accused seems to have brought as 'Safarshi' wanted to see
the deponent.
If as Dayal Chand says he did not hear even
his being called back how did he in the first instance know he was called back
and secondly since there was no talk between him and the gentleman from the
High Court how he could have informed Respondent 1 that Shri Mehta, the
brother-in-law of the accused seems to have brought him for Safarash. These are
not explained. There is nothing in Dayal Chand's affidavit that he had said
that Mehta who came was the brother-in-law or that he had brought the gentleman
from the High Court for 'Safarash'. Even according to Respondent 1's statement
what Respondent 2 told him was one S. M. Mehta had come while the
brother-in-law is Ravinder Mehta. It is however contended by Shri Sachthey, the
learned Advocate for the two Appellants that previously certain 'Safarashi'
letters had been brought by Shri S. M. Mehta an employee of the High Court and
Ravinder Mehta who is the brother-in-law of the accused from one Gurdial Singh
Nurpuri the Judicial Magistrate of Gidarabha and so he thought that Mehta had
brought the gentleman from the High Court for 'Safarash'.
This explanation in our view is naive but
however that does not explain how Dayal Chand came to know of this when he did
not have time to have a talk with any of the persons who had accompanied the
Court officer, which fact is also evident from the report of the Court Officer
who said that as soon as he asked to see Jage Ram the person on the cycle
namely Dayal Chand got on his cycle and went away in spite of the fact that
immediately thereafter he recalled him back but he did not return. If as Dayal
Chand says that the person who told him that he was from the High Court 417 is
true that person would not have failed to disclose the purpose of his visit
namely that he had got orders from the High Court. it will be difficult to
believe that a Police Officer will merely rush to call Jage Ram without further
enquiry if he was merely informed that he had come from the High Court and
assume that the purpose of his visit was only Safarash. No police officer would
be inclined to be in such a great hurry to rush to call his superior if he
merely believed that a gentleman from the High Court was there only for the
purpose of 'Safarash' and not on an official duty.
If it was however the former and if he was so
inclined to send for the officer without ascertaining the purpose for which
that gentleman came he would have sent a constable instead of himself rushing
to bring Inspector Jage Ram. The haste with which he left the scene even
without paying any attention when he was called back indicates that he must
have known the purpose why the person from the High Court had come. While we
are on this topic we may pause to refer to a matter which is being sought to be
utilised as a justification for the inference that the gentleman from the High
Court had also come for 'Safarashi' work. This has reference to the letters
written by Gurdial Singh Nurpuri Judicial Magistrate, Gidarabha which were
enclosed with the return filed by Jage Ram. Though they may look innocuous if
given by any friend of the Inspector in as much as they merely ask him to help
Prem Parkash Midha the accused who is said to have been the complainant in a
theft case to trace the real culprit, but coming as they do from a Judicial
Magistrate to a police officer in a state where we are informed by Mr. Sachthey
on instructions there is a separation of judiciary from executive are not
proper and are likely to be understood as interference in the discharge of
duties by the police officers. It would appear from the second letter that the
Judicial Magistrate had shown special interest because he seems to have
personally come to Kamal from Gidarabha for the purpose of talking to the
Appellant Jage Ram but as he found him away he gave that letter. In any case
whether these letters at the time when he received them were treated by the
addressee as interfering with his duties or not they undermine the confidence
in the judiciary by giving rise to the comment that such judicial officers may
equally be susceptible to influence in the discharge of their duties by parties
who are likely to appear before them. It is in the best interest of Judicial
officers not to indulge in such practices. This matter may also be brought to
the notice of the High Court for such action as it may think necessary to take.
Now coming back to the narration of what
happened when he was produced in Court it is apparent from the order of Khosla,
J. who after setting out the purport of the report of his reader Gupta and
after perusing the affidavit filed by the two 418 Appellant Police Officers
says that the detenu wanted to make a statement and was accordingly examined.
This is what the learned Judge has stated :
"Reading of the statement made by the,
detenu together with the allegations projected in the instant petition
supported by the averments in the accompanying affidavits and the report
submitted by Shri Gupta point un-mistakenly to the contention of the learned
coun sel that detenu had been taken into custody by the Karnal local police on
5th of May 1968, passed on to the C.I.A. staff for investigation and
interrogation and was maltreated by the respondents. His arrest had
surreptitiously been sworn to have taken place on 10th of May 1968. The
affidavits sworn by the Respondents of course denied all accusations had it was
maintained that the detenu was called in, on 10th of May 1968 and duly arrested.
He had on his person two old injuries that were noted.
The allegations that some third degree
methods had been employed to illicit confession or information were equally
emphatically traversed. Upon hearing counsel at some length and examining the
material placed on the record with due care I have no hesitation in finding
that the detenu had been taken into custody on some date before the 10th of May
and tortured by the Respondents. The examination carried out by the Chief
Medical Officer, Karnal Hospital on the morning of llth May showed that the
detenu had on his person injuries more than two. The detenu was in Court and I
found him suffering grievously from the after effects cumulatively of those
injuries. His version of torture administered by the Respondents at diverse
occasions stood materially corroborated. I also find that though the
confinement of the detenu was illegal till 10th of May 1968, he is at present
in proper judicial custody. He must thus be remitted to the same custody. He is
accordingly directed to be taken back to the Hospital Kamal and to await
further order of the learned Magistrate.
The Report submitted by Shri Gupta, Officer
of this Court discloses in no uncertain terms that Respondent No. 2 at least
showed scant respect for the orders of this Court and when asked to show the
papers relating to the case adopted evasive attitude and also by sneaking away
subsequently completed police papers 419 spuriously. I cannot but abhor such
conduct and disapprove of the mentality.
otherwise too, I have no doubt whatever that
the affidavits sworn by the Respondents in this Court did not represent the
true state of affairs calculated falsehood had been imported in material
particulars.
For these and other illegalities committed by
the Respondents, the detenu is left to his remedies at law".
After making these observations the learned
Judge rejected the petition for interim bail as he had no occasion to examine
the merits of accusations laid against him as also because a theft of large
sums of money was involved. He however left it open to the Magistrate to
consider the question of bail as and when suitably moved by the accused in that
behalf.
The learned Advocate Shri Sachthey has
strenuously contended that these remarks are unjustified and besides impeding
the investigatory process which the Police as a matter of their duty have to
undertake, it effects the career of the Police officers concerned. He also
contends that it is not true that the accused was arrested on the 5th May 68 or
an any date prior to 10th and the remarks that they were in illegal custody and
were brutally ill treated were also unjustified in that they had been arrived
at without any opportunity being given to the Appellant officers or without
holding any enquiry thereon. We are unable to appreciate these contentions. In
a Habeas Corpus Petition where allegations are made that a citizen of this
country is in illegal custody it is the duty of the Court to safeguard the
freedom of the citizen which has been guaranteed to him by our Constitution and
to immediately take such action as would ensure that no person however high or
low acts in contravention of the law or in a high-handed, arbitrary or illegal
manner. While no doubt it is the duty of the Court to safeguard against any
encroachments on the life and liberty of individuals, at the same time we
recognise that the authorities who have the responsibility to discharge their
functions vested in them under the law of the country should lot be impeded or
interfered with, without justification. In furtherance of this duty the High
Court passed the orders which in the circumstances of the case was fully
justified. There was some comment on the learned Judge directing his reader to
contact the petitioner to trace out the accused and also on the oral
instructions as appeared from the report to have been given by the learned
Judge to take the assistance of Narinder Singh an Assistant in the Criminal
Branch because he had been going on such raids previously as indicating that
the High Court was directing such raids previously. We are not in a position to
say whether 420 this comment is justified because all the information necessary
is not available to us, as such we do not wish to draw any inference on this
aspect of the case. If the procedure was objected to in the High Court as it
has been done before us it would have itself ascertained what was the basis for
the reader's statement that Narinder Singh was being sent previously on such
raids. We do not personally think that such raids are conducted but if in any
particular case where there is urgency there is every justification for the
procedure-followed by the High Court to be adopted. In any case ordinarily,
Courts are not powerless as they can have recourse to the provisions of the
Criminal Procedure Code which provides for directions being given to the
Magistrates to deal with such matters by conducting an enquiry and making a
report to the Court.
On the question whether the several remarks
of the learned Judge are justified or not we may refer in this connection to
the observations of S. K. Das, J. in State of U.P. v. Mohammad Naim(1) as to
the matters which have to be kept in view in considering whether the remarks
made in judgments against authorities whose conduct comes into consideration before
Courts of law in cases to be decided by them are disparaging. These are : (a)
whether the party whose conduct is in question is before the Court or has any
opportunity of explaining or defending himself, (b) whether there is evidence
on record bearing on that conduct justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognised that judicial
pronouncements must be judicial in nature, and should not normally depart from
sobriety, moderation and reserve.
What we must now see is, keeping in mind the
above criteria whether the remarks made by Khosla, J. are unjustified. The
first of these which are assailed concerns the validity of the finding that the
accused was arrested earlier than the 10th of May '68 and that he was tortured.
We have pursued the statement of the arrested person given before the learned
Judge and it appears therefrom that none other than the Advocate General of the
State had cross-examined him in respect of the allegations made by him against
the appellant Police officers. The detenu stated that on 5-5-68 ASI Dayal Chand
accompanied by a foot constable in plain clothes came to his house at about 5
p.m. and took him to the CIA staff situated in Model Town Karnal. The said
Dayal Chand Respondent 2 was present in Court. He further says that Jage Ram
was not present in the CIA office when he reached there at about 9 p.m. that he
was questioned about the missing cash box and on his showing ignorance was kept
under guard (1) [1964] (2) S.C.R. 363, 374.
421 who was changing every 3 hours. Ms hands
were raised out and legs stretched out. The Second Respondent remained with,
him till about 12 mid night. At about 6 a.m. he was taken to another room and
was made to stand in the said posture. On 6.5.68 at about 10 p.m. both
Respondent Jage Ram and Dayal Chand came. to that room and again interrogated
him about the theft. He pleaded innocence and denied that they interrogate
other colleagues serving in the Post office. Thereafter he described the.
manner in which he was tortured on the several days and states what happened on
the 10th May 68 when Sadhu Ram Gupta, Narinder Singh and his father and
brother-in-law Ravinder Mehta came to him and what he had told them. It appears
from the crossexamination of the learned Advocate General that he was
questioned about the theft and later it was put to him that he. was absent
between 5th to 10th from Karnal and remained at Chandigarh to get some recommendations
for getting the course of investigations changed, which suggestion however was
denied. He was further asked whether he did not appear before Respondent 2 on
10th at 1 1 a.m. on his own volition, which suggestion was also denied. He
denied that there was any search of his person affected or any memo prepared
and also denied that he had been giving false version of being tortured with a
view to escape the liability of the theft.
It was also put to him that before presenting
himself before ASI Dayal Chand on 10-5-68 he' had made arrangements with the
help of his relatives in filing a Habeas Corpus petition so that he would
secure release, which In suggestion also was described by the accused as
entirely false and untrue.
This latter suggestion of the learned
Advocate General would answer the contention of the learned Advocate before us
that it is only after the accused was arrested at 12.30 p.m. on the 10th May at
Karnal that the Petition was filed at Chandigarh, which is said to be 60 miles
away. This contention would appear to be also not tenable because of the
distance and time gap which will not make it possible for a petition to be
filed before the Court closed. That the petition was filed much earlier on the
other hand is apparent from the report of the Court Reader who said he left
Chandigarh by bus at 4.30 p.m. which he could only do if the order was passed
much earlier to enable him to get copies and make arrangements for him to
travel by bus at 4.30 p.m.
On the question whether the remarks that
accused was injured are justified, we have also pursued the medical report of
the Chief Medical Officer dated 11-5-68 from which it is evident that he had
found 6 injuries on the accused and one of them was such that he advised X-Ray
though later it was found that there was no fracture. The nature of these
injuries as well as the condition of the accused at the time when he was
produced before the 422 learned Judge fully justify the conclusions that the
accused when produced before the Court was found "suffering grievously
from the after effects cumulatively of those injuries".
In our view there is no warrant for the
submission that the Appellants were not given an opportunity to explain nor
that no enquiry was made against them in respect of the allegations made in the
petition or by the accused. We do not know what other enquiry could be made.
The appellants had opportunity of filing their affidavits and to give their
version which they have done in ,great detail, which shows that they knew what
the allegations against them were. If they wanted to produce any other person
in support of their stand that the accused was only arrested on the 10th and
not on the 5th or that the injuries found on the accused were old and were not
fresh they could have done so. They do ,not deny that the Chief Medical Officer
examined the accused nor is it possible for them to say how the injuries found
on the accused some of which were fresh could be caused. They were certainly
not old injuries nor is it their case that when the accused was arrested on the
10th he was found to be suffering from swollen feet or injuries which were
fresh. None of the remarks to which exception has been taken, in our view could
be described as unwarranted, unnecessary or irrelevant or can be characterised
as generalisation or of a sweeping nature. There is, therefore no ground for
granting the Prayer for expunging any of the remarks in the order of the High
Court. In this view the Appeal is dismissed.
K.B.N. Appeal dismissed.
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