Dalbir Singh Vs.
State of U.P & Ors. [2009] INSC 200 (3 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 193 OF 2006
Dalbir Singh ...Petitioner State of U.P. and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Alleging
that because of custodial torture and diabolic acts of the police officials of
Noida Police, Somvir Singh @ Sonu aged 17 = years lost his life. He was
studying in 9th standard. After dis-continuing his education he was helping his
father, the petitioner, in his agricultural activities.
2.
The
petitioner had described the factual scenario to be thus:
The deceased was
called by his friend one Kunwar Pal resident of Sikri PS Khurja and at relevant
time residing at Telia ghat Khurja, PS Khurja, distt. Bulandshahar at about 6
p.m. on 1st of September, 2006. He told Sonu that five persons want to purchase
some property. Since he wanted to show them the land, he requested Sonu to go
along with him.
They took him in the
car. Since Sonu did not return till 9 PM, the petitioner and his son who came
from Faridabad started looking around for him and at about 3.45 AM the
petitioner saw that the said Kunwar Pal came out from a lane. On enquiry about
the whereabout of Sonu, the petitioner was informed that Sonu had been taken by
the Police officials of Sector 20 Noida Police Station and he gave the
telephone number of one Pradeep constable and asked the petitioner to contact
him. The petitioner immediately contacted on the given number and the said
constable told him that if he wanted to see Sonu, he had to come to Sector 31
Police Station at 10 AM. They were not given any further information. On trying
to call up the number again to get further details, there was no response from
the telephone or it was switched off. At about 9 A.M., the petitioner and his
son reached Sector 31 Police Station to look for the said constable Pradeep and
were informed that he was not on regular posting and that he used to visit the
place occasionally.
The petitioner
thereafter left Sector 20 and also called up the house and to the utter shock
and surprise was informed that the police officers from PS Phurja Dehat had
come and informed the family that Sonu had committed suicide in Sector 20 lock
up. It is only then that the family realized that said five persons were
policemen in plain clothes. On reaching Sector 20 the petitioner was informed
that the dead body was lying in the mortuary and would be sent for post mortem.
The petitioner and his son were taken to Sector 94 Noida where they saw the
dead body of Sonu lying on a stretcher.
The body was covered
with injuries, black marks and abrasions all over. It was clear that he had
been badly beaten up. Blood was coming out from the head.
S.S.P. R.K.S. Rathore
and Additonal SSP came to the petitioner's house and tried to convince him and
his family that since Sonu was involved in a case of looting, he had been
arrested and he committed suicide while in police lock up by hanging himself
with his shirt. The post mortem would have to be conducted. In the meantime,
the news of Sonu's killing having reached the village there was public out cry
as there was one more death in the hands of Noida Police and the matter
appeared in the local media mainly in vernacular. The petitioner lodged First
Information Report (in short the `FIR') with the police which threatened him
and also tried to pressurize him into accepting the theory of suicide. But the
untimely murder of the youngest child who was a law abiding citizen and had
never been involved in any anti social or criminal activities had lost his life
in the hands of the police and petitioner did not accept the statements, even
at the cost of threat from the police.
To calm down the
tempers of the villagers, an FIR was ultimately registered alongwith two other
FIRs which have also been registered against the deceased son of the
petitioner; one for alleged loot of some mobile phone, which has now been
planted on the deceased and the other for attempt to suicide. The FIR dated
2.9.2006 was registered against the unknown police officers. All attempts by
the petitioner to have an impartial post mortem of the body of the deceased was
thwarted by the police who was insisting on the theory of the suicide by
hanging with the help of shirt.
The external injuries
all over the body of the deceased were not explained and in fact the post
mortem report itself is not accurate as compared with the photographs. The
petitioner and his other family members have given a statement setting out the
facts.
Pursuant to notice
issued in this case, the State of U.P. has filed its response. It is pointed
out that the FIR has been registered and certain police officials had been
charged for commission of offences punishable under Sections 330, 342 and 306
of the Indian Penal Code, 1860 (in short the `IPC'). It is stated that sanction
for prosecution has been given on 15.10.2008 and the charge sheet had been
filed on 14.11.2008. The accused persons surrendered before learned Chief
Judicial Magistrate on 14.11.2008 and their bail applications had been
rejected. Cognizance of the aforesaid offences has been taken on 17.11.2008.
3.
Learned
counsel for the petitioner submitted that it is a clear case of custodial
torture and death and by giving a colour of Section 306 IPC, an attempt is
being made to protect the erring police officials. It is also stated that the
compensation should be paid.
4.
Learned
counsel for the respondent-State on the other hand submitted that the police
after investigation has not found any evidence of murder and therefore the
charge sheet had been filed. If at any stage it comes to the notice of the
Court that other offences are involved, certainly necessary orders can be
passed by the Court.
5.
Custodial
violence, torture and abuse of police power are not peculiar to this country,
but it is widespread. It has been the concern of international community
because the problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948 which marked the emergence of a
worldwide trend of protection and guarantee of certain basic human rights
stipulates in Article 5 that "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment". Despite this pious
declaration, the crime continues unabated, though every civilized nation shows
its concern and makes efforts for its eradication.
6.
If
it is assuming alarming proportions, now a days, all around it is merely on
account of the devilish devices adopted by those at the helm of affairs who
proclaim from roof tops to be the defenders of democracy and protectors of
peoples' rights and yet do not hesitate to condescend behind the screen to let
loose their men in uniform to settle personal scores, feigning ignorance of
what happens and pretending to be peace loving puritans and saviours of
citizens' rights.
7.
Article
21 which is one of the luminary provisions in the Constitution of India, 1950
(in short the `Constitution') and is a part of the scheme for fundamental
rights occupies a place of pride in the Constitution. The Article mandates that
no person shall be deprived of his life and personal liberty except according
to the procedure established by law. This sacred and cherished right i.e.
personal liberty has an important role to play in the life of every citizen.
Life or personal liberty includes a right to live with human dignity. There is
an inbuilt guarantee against torture or assault by the State or its
functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the
`Code') deals with the powers of arrest of persons and the safeguards required
to be followed by the police to protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution further manifest the constitutional
protection extended to every citizen and the guarantees held out for making
life meaningful and not a mere animal existence. It is therefore difficult to
comprehend how torture and custodial violence can be permitted to defy the
rights flowing from the Constitution. The dehumanizing torture, assault and
death in custody which have assumed alarming proportions raise serious
questions about the credibility of rule of law and administration of criminal
justice system. The community rightly gets disturbed. The cry for justice
becomes louder and warrants immediate remedial measures. This Court has in a
large number of cases expressed concern at the atrocities perpetuated by the
protectors of law. Justice Brandies's observation which have become classic are
in following immortal words:
8.
"Government
as the omnipotent and omnipresent teacher teaches the whole people by its
example, if the Government becomes a law breaker, it breeds contempt for law,
it invites every man to become a law into 7 himself". (in (1928) 277 U.S.
438, quoted in (1961) 367 U.S. 643 at 659).
9.
The
diabolic recurrence of police torture resulting in a terrible scare in the
minds of common citizens that their lives and liberty are under a new and
unwarranted peril because guardians of law destroy the human rights by
custodial violence and torture and invariably resulting in death. The
vulnerability of human rights assumes a traumatic torture when functionaries of
the State whose paramount duty is to protect the citizens and not to commit gruesome
offences against them, in reality perpetrate them. The concern which was shown
in Raghubir Singh's case (supra) more than two decades back seems to have
fallen to deaf ears and the situation does not seem to be showing any
noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of
U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC
249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (AIR 1993
SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC
100), Kewal Pati (Smt.) v. State of U.P. and Ors. (1995 (3) SCC 600), Inder
Singh v. State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v.
Shyamsunder Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision
in Shri D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have
caused not even any softening attitude to the inhuman approach in dealing with
persons in custody.
10.
Rarely
in cases of police torture or custodial death, there is any direct ocular
evidence of the complicity of the police personnel alone who can only explain
the circumstances in which a person in their custody had died.
Bound as they are by
the ties of brotherhood, it is not unknown that the police personnel prefer to
remain silent and more often than not even pervert the truth to save their
colleagues - and the present case is an apt illustration - as to how one after
the other police witnesses feigned ignorance about the whole matter.
11.
The
exaggerated adherence to and insistence upon the establishment of proof beyond
every reasonable doubt by the prosecution, at times even when the prosecuting
agencies are themselves fixed in the dock, ignoring the ground realities, the
fact-situation and the peculiar circumstances of a given case, as in the
present case, often results in miscarriage of justice and makes the justice
delivery system suspect and vulnerable. In the ultimate analysis the society
suffers and a criminal gets encouraged. Tortures in police custody, which of late
are on the increase, receive encouragement by this type of an unrealistic
approach at times by the courts as well because it reinforces the belief in the
mind of the police that no harm would come to them if one prisoner dies in the
lock-up because there would hardly be any evidence available to the prosecution
to directly implicate them with the torture. The courts must not lose sight of
the fact that death in police custody is perhaps one of the worst kind of
crimes in a civilized society, governed by the rule of law and poses a serious
threat to an orderly civilized society. 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/under-
trial prisoners or suspects tarnishes the image of any civilised nation and
encourages the men in `Khaki' to consider themselves to be above the law and
sometimes even to become law unto themselves. Unless stern measures are taken
to check the malady of the very fence eating the crops, the foundations of the
criminal justice delivery system would be shaken and the 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 lose faith in the
efficacy of the system of judiciary itself, which, if it happens, will be a sad
day, for any one to reckon with.
12.
In
view of the fact that sanction for prosecution has been granted, charge sheet
had been filed and cognizance had been taken, we feel that no further direction
at present is necessary. It is needless to say that if at any point of time,
evidence surfaces before the concerned Court to show that some other offences
appear to have been committed, necessary orders can be passed. We are not for
the present accepting the prayer for compensation because that would depend
upon the issue as to whether there was custodial death. The writ petition is
accordingly disposed of. We make it clear that we have not expressed any
opinion on the truth or otherwise of the allegations made and which will be
considered by the concerned court.
....................................J.
(Dr. ARIJIT PASAYAT)
...................................J.
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