Kashmeri
Devi Vs. Delhi Administration & Anr [1988] INSC
118 (25 April 1988)
Singh,
K.N. (J) Singh, K.N. (J) Kania, M.H.
CITATION:
1988 AIR 1323 1988 SCR (3) 700 1988 SCC Supl. 482 JT 1988 (2) 293 1988 SCALE
(1)977
ACT:
Constitution
of India, 1950: Article 136-Police
investigation-Credibility of-Death in police custody- Allegations of murder and
torture against police officers- Court finding that efforts made to protect and
shield guilty police officers-Trial court directed to have thorough and proper
investigation by C.B.I.
Criminal
Procedure Code, 1973: Section 173(8)-Death in police custody-Allegations of
torture and murder against police officers-Supreme Court finding that efforts
made to protect and shield guilty police officers-Trial magistrate directed to
have proper and thorough investigation by C.B.I.
HEAD NOTE:
The
appellant was the widow of a tonga driver
who died in police custody. It is alleged that on the fateful night of
22/23.8.1986 two sub-inspectors accompanied by two constables visited the house
of one Sudesh Kumar, and started beating him. On hearing his shrieks his
maternal uncle Gopi Ram, the tonga driver
tried to intervene whereupon the policemen are alleged to have beaten him also.
Both
of them were arrested taken to the police station, stripped of their clothes
and beaten with iron rods. The tonga driver
succumbed to his injuries at the police station. Thereafter, a post mortem was
conducted and the dead body was cremated without handing it over to the
appellant.
The
aforesaid incident caused consternation in the locality, and a mob surrounded
the police station to lodge its protest against the death of the tonga driver in police custody. Undaunted
the police registered a case under Sections 147-149 and 353/332 I.P.C. against
the brother of the deceased and others as they were members of the mob.
Sudesh
Kumar filed a written complaint naming the two sub-inspectors and the
constables as responsible for the death of his maternal uncle which was
registered under Section 302/342 I.P.C. No action was however taken against
those officers. After some time the case was converted to Section 304 I.P.C.
for purpose of investigation.
701
The appellant approached the High Court by a writ petition under Article 226
for transferring the investigation of the case from the Crime Branch of the
State Police to the Central Bureau of Investigation. The Division Bench,
however, dismissed the petition.
Disposing
of the Appeal, this Court, ^
HELD:
1. The police have not acted in a forthright manner in investigating the case
registered on the complaint of Sudesh Kumar. [704C-D]
2. The
circumstances available on record prima facie show that effort has been made to
protect and shield the guilty officers of the police who are alleged to have
perpetrated the barbaric offence of murdering Gopi Ram by beating and
torturing. [704D]
3. The
appellant had been crying hoarse to get the investigation done by an
independent authority but none responded to her complaint. [704D-E]
4. The
Additional Sessions Judge while considering the bail application of one of the
Constables-Jagmal Singh, considered the autopsy report and observed that the
Doctor had postponed giving his opinion regarding the cause of death although
the injuries were antimortem. [704D-E]
5. The
Sessions Judge referring to a number of circumstances observed that the
investigating officer had converted the case from Section 302 IPC to 304 IPC on
flimsy grounds within hours of the registration of the case even without
waiting for the post mortem report and that it was a prima facie case of
deliberate murder of an innocent illiterate poor citizen of Delhi in police
custody and investigation was partisan. [704E-F]
6. In
the interest of justice it is necessary to get a fresh investigation made
through an independent authority so that the truth may be known. [704H]
7. The
trial court before whom the charge sheet has been submitted shall exercise its
powers under Section 173(8) Cr. P.C. to direct the Central Bureau of
Investigation for proper and thorough investigation of the case. On issue of
such direction the C.B.I. will investigate the case in an independent and
objective manner and submit additional charge sheet if any in accordance with
law. [705A-B] 702
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 280 of 1988.
From
the Judgment and Order dated 26.9.1986 of the High Court of Delhi in Crl. W.P.
No.361 of 1986.
R.L. Panjwani
and R.D. Upadhyay for the Appellant.
S. Madhu
Sudan Rao, N.L. Kakkar and Miss A. Subhashini for the Respondents.
The following
Order of the Court was delivered:
O R D
E R
Special
leave granted.
This
is an unfortunate case which tends to shake the credibility of police
investigation and undermines the faith of common man in Delhi Police which is
supposed to protect life and liberty of citizens and maintain law and order.
There has
been serious allegations of murder by torture against the police and further
about the haphazard manner in which the investigation against the accused
police officers was investigated with a view to shield the guilty members of
the Delhi Police.
Kashmeri
Devi the appellant is the unfortunate widow of Gopi Ram deceased who was a tonga driver. On the fateful night of
22/23.8.1986 two sub-inspectors accompanied by two constables visited the house
of Sudesh Kumar of Prem Nagar.
It is
alleged that they started beating Sudesh Kumar.
Hearing
his shrieks his maternal uncle Gopi Ram deceased came to the spot, he tried to
intervene whereupon the police men are alleged to have giving him beating also.
Gopi Ram and Sudesh Kumar both were arrested and taken to the Police Station
Patel Nagar where they were stripped of their clothes and the police men gave
them serious beating with the help of iron rods and iron rulers. It is alleged
that Gopi Ram succumbed to his injuries at the police station sustained at the
hands of Satish Kumar and Rana sub- inspectors and Jagmal Singh and Romesh
constables while in police custody. It is alleged that thereafter a post mortem
was conducted and the dead body of Gopi Ram was cremated without handing over
the dead body to the appellant. This incident caused consternation in the
locality and on 23.8.1986 a mob surrounded the police station to lodge 703 its
protest against the death of Gopi Ram deceased at the police hands, Undaunted
the Patel Nagar police registered a cause under Section 147/148/149/353/332 of
the Indian Penal Code against Shankar brother of the deceased who was arrested
along with others on 23.8.1986 as they were members of the mob. Sudesh Kumar
who had been taken to the police station along with Gopi Ram filed a written
complaint at the police Station Patel Nagar on 23.8.1986, making allegations
against the two sub-inspectors and the constables. In that complaint Sudesh
Kumar alleged that as a result of beating by police officers his maternal uncle
became unconscious and thereafter the police officers kept on beating him at
the police station as a result of which he died. He further alleged that the
police officers took the dead body of Gopi Ram to the hospital from there they
brought it to another hospital, where he was forced to sign blank papers. He
named the police officers who were responsible of the death of his maternal
uncle. On that complaint a case was registered under Sections 302/342 IPC
against the police officers of Patel Nagar Police Station but no action was
taken against those officers. After some time case was converted to Section 304
IPC for purpose of investigation. The appellant Kashmeri Devi approached the
High Court by means of a writ petition under Article 226 of the Constitution
for transferring the investigation of the case from the Crime Branch of the
Delhi Police to Central Bureau of Investigation. Division Bench of the High
Court dismissed the writ petition by its order dated 26th September, 1986.
Thereupon,
the appellant approached this Court by means of special leave petition.
During
the pendency of the special leave petition this court granted time to the
respondents twice for filing counter-affidavit but the respondents failed to file
their counter affidavit. Ultimately on 11.4.1988 Kanwaljit Deol, Deputy
Commissioner of Police Head Quarters has filed counter affidavit setting out a
totally different story. He has stated that on 23.8.1986 the police received
information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem
Nagar to Ram Manohar Lohia Hospital, New
Delhi. On receipt of
the information from the Hospital one sub- inspector of police went to Dr. Ram Manohar
Lohia Hospital and obtained medical legal certificate of the deceased's Gopi
Ram. It is alleged that on a personal search of the deceased's body the police
recovered 5 small packets of smack from his pocket. In his affidavit an attempt
has been made out to show that Gopi Ram had died on account of alcohol and marphine
and not on account of any injuries caused to him by the police and in this
connection a story has been set up that Sudesh Kumar had brought the dead body
to Dr. Ram Manohar Lohia Hospital and on receiving 704 information from the
Hospital the police made recovery of smack from the the deceased's pocket. The
affidavit is completely silent about the allegations made by the appellant that
the Gopi Ram and Sudesh Kumar were arrested taken to the police station and Gopi
Ram was beaten to death. The affidavit further refers to some medical report
which purports to state that deceased died on account of alcohol and marphine.
It is further stated that after taking into consideration the cause of the
death given by the Doctor, charges were amended to Sections 323/342/34-IPC and
after completing the investigation challan was prepared and the same has been
put in the Magistrate's Court. The affidavit of Kanwaljit Deol states that in
the absence of evidence the story set up by Sudesh Kumar could not be substantiated.
After
hearing learned counsel for the parties and on perusal of the record we are
satisfied that prima facie the police have not acted in a forthright manner in
investigating the case, registered on the complaint of Sudesh Kumar. The
circumstances available on record prima facie show that effort has been made to
protect and shield the guilty officers of the police who are alleged to have
perpetrated the barbaric offence of murdering Gopi Ram by beating and
torturing. The appellant has been crying hoarse to get the investigation done
by an independent authority but none responded to her complaint. The Additional
Sessions Judge while considering the bail application of Jagmal Singh,
Constable, considered the autopsy report and observed that Doctor had postponed
giving his opinion regarding the cause of death although the injuries were antimortem.
The learned Sessions Judge referring to a number of circumstances observed that
the investigating officer had converted the case from 302 IPC to 304 IPC on
flimsy grounds within hours of the registration of the case even without
waiting for the postmortem report. The learned Sessions Judge further observed
that it was a prima facie case of deliberate murder of an innocent illiterate
poor citizen of Delhi in police custody and investigation was partisan.
We are
in full agreement with the observations made by the learned Sessions Judge. As
already noted during the pendency of the writ petition before the High Court
and special leave petition before this Court the case was further converted
from 304 IPC to 323/34 IPC. Prima facie the police has acted in partisan manner
to shield the real culprits and the investigation of the case has not been done
in a proper and objective manner. We are therefore of the opinion that in the
interest of justice it is necessary to get a fresh investigation made through
an independent authority so that truth may be known.
705
Since according to the respondents charge-sheet has already been submitted to
the Magistrate we direct the trial court before whom the charge sheet has been
submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the
Central Bureau of Investigation for proper and thorough investigation of the
case. On issue of such direction the Central Bureau of Investigation will
investigate the case in an independent and objective manner and it will further
submit additional charge sheet, if any, in accordance with law. The appeal
stands disposed of accordingly.
N.V.K.
Appeal disposed of.
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