UJJAL BHUYAN,J. -
(1.) This case was heard on 26.07.2018 and today is fixed for delivery of order. Heard Mr. AK Das, learned counsel for the petitioner; Mr. SK Medhi, learned Senior Counsel assisted by Mr. A Das, learned counsel for the Gauhati High Court; Mr. SR Boruah, learned Government Advocate, Assam and Mr. D Das, learned Addl. Public Prosecutor, Assam. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the Chief Judicial Magistrate, Kamrup (M) at Guwahati to take cognizance of Complaint Case No.2589/2011 and to direct the State respondents to pay compensation to the petitioner for his illegal detention and torture in police custody. Petitioner is an Advocate's Clerk earning his livelihood by rendering service to lawyers and litigants in the establishment of Chief Judicial Magistrate, Kamrup (M) at Guwahati. According to the petitioner, he was kept confined in the Panbazar Police Station from 21.08.2011 to 23.08.2011; where, he was subjected to inhuman torture. However, petitioner was not arrested and was let off. Later on petitioner came to know that he was detained by the police in connection with Panbazar Police Station Case No.238/2011, which was registered on the basis of information furnished by the then Chief Judicial Magistrate, Kamrup (M) regarding manipulation of bail bonds. Alleging illegal detention and torture, petitioner had filed first information before the Chandmari Police Station which was treated as FIR and on the basis of the same, Chand--mari Police Station Case No.466/2011 was registered. Petitioner had also lodged complaint before the Human Rights Commission, Assam as well as before the Assam Police Accountability Commission. As there was not much headway in Chandmari PS Case No.466/2011, petitioner lodged a complaint before the Chief Judicial Magistrate, Kamrup (M), being Complaint Case No.2589/2011. As there was no progress in this case also, petitioner had approached this Court by filing the present writ petition. An affidavit was filed by respondent No.4, Sri Anand Prakash Tiwari, who was then serving as Senior Superintendent of Police, Guwahati City on 23.09.2013. It is stated that Chief Judicial Magistrate, Kamrup (M), Guwahati had lodged FIR before the Panbazar Police Station on 03.08.2011 alleging forgery in bail bond. Chief Judicial Magistrate had requested the police to properly investigate the case and to unearth the racket in the public interest. During investigation, the Investigating Officer obtained information that petitioner may be an accomplice of the accused persons; therefore, it was necessary to interrogate the petitioner. Accordingly, respondent No.6 along with police personnel of Panbazar Police Station arrived at Chandmari Police Station on 22.08.2011 at about 12.50 am and sought help from the Chandmari Police Station to conduct search in the residence of accused Surjya Malakar and that of the petitioner. When the police went to the residence of Surjya Malakar, he was not found available. Thereafter, the police went to the residence of the petitioner and seized some documents. Police brought the petitioner to Panbazar Police Station for interrogation and follow up action. Petitioner was produced before the Medical Officer, MMC Hospital, Panbazar, Guwahati where he was medically examined. As per report of the Medical Officer, no external injury mark was found on the body of the victim. Petitioner was released from detention around 1.30 pm to 2.30 pm on 23.08.2011 and he was handed over to his wife Smti. Nirmali Medhi. While denying that petitioner was detained for two nights by the police, it is admitted that petitioner was brought to the Panbazar Police Station at about 3.00 am of 22.08.2011 and was allowed to go on 23.08.2011 at 2.00 pm; during this period, he was provided necessary amenities. Allegation of torture has been denied. In so far Chandmari Police Station Case No.466/2011 is concerned, it is stated that it was registered under Sections 348/326/379/448/506 IPC where, respondent No.6 was arrayed as the accused. Investigation had not been completed at the time of filing the affidavit. In his reply-affidavit, petitioner stated that when the police had produced him for medical examination before the MMC Hospital, it was about 3.00 am on 22.08.2011 before the interrogation and torture had commenced. Naturally, no injury or torture marks on the person of the petitioner would be visible at that stage. Immediately after he was released from detention, his wife had taken him to the MMC Hospital where he was medically examined and as per medical report dated 23.08.2011, he had suffered injuries resulting in multiple bruises on the back of left thigh and haematoma on left toes (nail bed). The doctor remarked that the injuries were fresh and caused by blunt object. Petitioner stated that he was in no way connected with Panbazar Police Station Case No.238/2011 and that is why he was not arrested. Petitioner also stated that Police Accountability Commission had passed an order on 20.11.2013 indicting respondent No.6. A rejoinder to the counter-affidavit was filed by Sri Anand Prakash Tiwari, respondent No.4 on 29.04.2014. In this rejoinder-affidavit, respondent No.4 has stated that petitioner never complained about any injury or pain which he had allegedly suffered while in police custody. It is however admitted that after the order was passed on 20.11.2013 by the State Police Accountability Commission, an inquiry was conducted whereafter, a departmental proceeding was drawn up against respondent No.6. Respondent No.6 has also filed a counter-affidavit. He has denied allegation of torture committed by him on the petitioner in the course of interrogation. He has stated that Complaint Case No.2589/2011 was referred to the Chandmari Police Station, where Chandmari PS Case No.466/2011 was registered. He has also stated that a disciplinary proceeding was initiated against him by the disciplinary authority. From the pleadings as noted above, the following admitted facts emerge: -
i) Respondent No.6 along with police personnel had searched the residence of the petitioner between 12 midnight to 3.00 am on 22.08.2011;
ii) Petitioner was brought to the Panbazar Police Station during that period. Infact, it is admitted that petitioner was brought to the Panbazar Police Station at about 3.00 am of 22.08.2011 and he was allowed to go at 2.00 pm of 23.08.2011;
iii) Medical report dated 22.08.2011 recorded around 3:00AM did not indicate any injury mark on the body of the petitioner;
iv) Medical report dated 23.08.2011 after release of the petitioner from detention indicates multiple bruises on the back of left thigh of the petitioner. It also reveals haemotoma on the left toes (nail bed). As per medical report, the injuries were fresh, caused by blunt object;
v) Respondent No. 6 was indicated by the State Police Accountability Commission vide order dated 20.11.2013; and
vi) A departmental proceeding was drawn up against respondent No. 6 following the order passed by the State Police Accountability Commission. In SPAC Case No.42/2011 (Ajit Medhi Vs. Kusheswar Nath), State Police Accountability Commission passed an order on 20.11.2013 stating that respondent No.6 had taken the petitioner into custody without following the due process of law. Respondent No.6 had acted with gross indiscretion. The Senior Superintendent of Police in his report also acknowledged indiscretion of the officer concerned. Therefore, State Police Accountability Commission directed the Senior Superintendent of Police to take appropriate measure against the respondent No.6 to ensure that such things did not recur in future. It was observed that the Senior Superintendent of Police ought to have taken appropriate measure as per law when such things had surfaced. Proceeding further what is to be noted is that in the face of the categorical finding recorded by the State Police Accountability Commission in its order dated 20.11.2013, the two affidavits filed before this Court in the present proceeding by Sri Anand Prakash Tiwari, who was the then Senior Superintendent of Police do not reflect the correct factual position. As a matter of fact, these affidavits are contrary to his own stand taken before the State Police Accountability Commission. Before the State Police Accountability Commission, he had acknowledged the indiscretion of respondent No.6, though the Commission found the Senior Superintendent of Police wanting in taking proper action when the indiscretion of respondent No.6 came to light. It is also seen that Sri Anand Prakash Tiwari had tried to divert the issue by referring to the medical report of the petitioner which was written at about 3.30 am on 22.8.11 whereas, petitioner's detention commenced thereafter till 2.00 pm of 23.8.11. Before commencement of detention, no injury marks on the body of the petitioner were found in the medical report. Immediately after the petitioner was released from detention, he was medically examined by the doctor in the neighbouring MMC Hospital, who found multiple bruises on the back of the left thigh of the petitioner besides finding haematoma on his left toes (nail bed) and remarked that the injuries were fresh caused by blunt object though simple in nature. Thus it is quite evident that petitioner was subjected to violence while he was in police custody. Incidentally, petitioner was not arrested but was allowed to come out after keeping him in police custody for about 35 hours starting from 3.00 am in the morning of 22.08.2011 to 2.00 pm of the following day i.e., 23.08.2011. To show the injuries sustained by the petitioner, he has also annexed to the writ petition photographs of the injuries on his body which have been certified by the learned counsel for the petitioner. In the course of hearing on 12.07.2018, the following order was passed: - "After hearing the matter at some length, Court is of the view that the following information would be necessary before passing final order(s):- 1. Status of Pan Bazar PS Case No. 238/2011; whether charge-sheet has been submitted in this case and if so, who are the accused.
(2.) Status of Chandmari PS Case No. 466/2011; if charge-sheet has been submitted in this case, if so who are the accused. Learned counsel for the respondents shall furnish the above information before the Court on the next date. List on 19.07.2018" Thereafter in the hearing on 19.07.2018, Mr. Medhi, learned Senior Counsel representing the High Court submitted that in so far Panbazar PS Case No.238/2011 is concerned, GR Case No.7134/2011 has been registered in the Court of Judicial Magistrate 1st Class, Kamrup (M). Following filing of charge sheet, charges under Sections 468/471/34 IPC have been framed against accused Abdul Hussain and Surjya Malakar vide order dated 19.07.2017. Petitioner is not an accused in this case. The case is at the stage of prosecution evidence. In so far Chandmari PS Case No.466/2011 is concerned, learned Government Advocate submitted that final report, being FR No.332/2018, was filed on 17.07.2018 as no evidence was found. In view of above, learned Government Advocate was directed to place a copy of the final report before the Court to enable the Court to pass appropriate order. Thereafter, the final report was placed before the Court. In so far Panbazar PS Case No.238/2011 is concerned, it is evident that petitioner is not an accused in that case. The case is at the trial stage in the Court of Judicial Magistrate 1st Class, Kamrup (M) where, it has been registered as GR Case No.7134/2011. In so far Chandmari PS Case No.466/2011 is concerned, it has resulted in filing of final report, being FR No.332/2018; the final report being filed on 17.07.2018. A perusal of the FR No.332/2018 reveals that evidence was found to be insufficient against the accused i.e., respondent No.6 for prosecution under Sections 348/323/379/448/506 IPC. In the remarks column, it was mentioned that the Investigating Officer had discussed the matter with his seniors and as per advice of his seniors, he had filed the final report. This final report was filed on 17.07.2018 after this Court had passed the order dated 12.7.2018 as extracted above. Before proceeding to another aspect of the matter, it may be noted that in Panbazar PS Case No.238/2911, petitioner was brought to the Police Station for interrogation after midnight i.e., at around 3 a.m. which is not the normal time for conducting investigation. It was not a case of such emergent nature that police had to search the residence of the petitioner after midnight and thereafter to bring him to the police station at around 3:00 a.m. This speaks volumes about the high-handedness of the police lead by respondent No. 6. Any normal person will fell terrorized by such turn of events. As per the admitted stand of the respondents, petitioner was in police custody from 3.00 am of 22.08.2018 to 2.00 pm of 23.08.2011. While the medical report at the time of taking the petitioner into detention did not reveal any injury mark, the medical report immediately after release from detention revealed marks of fresh injuries on the person of the petitioner which clearly establishes torture during police custody. The other aspect which may be noted is that after the order was passed by the State Police Accountability Commission on 20.11.2013, a departmental proceeding was drawn up against respondent No.6, being DP No.4/2014, where the Superintendent of Police, Dhubri was the disciplinary authority as by that time, respondent No.6 was posted at Dhubri. The disciplinary proceeding was closed by severely reprimanding respondent No.6 and warning him to be more cautious in future. In the inquiry report, Inquiry Officer Ms. Rosie Kalita, Addl. Deputy Commissioner of Police (Crime), Guwahati held that negligence of duty by the charged officer was proved. In DK Basu Vs. State of WB, reported in (1997) 1 SCC 416, Supreme Court examined the issue of custodial violence in India and observed that custodial violence and abuse of police power is not only peculiar to this country but it is widespread. Custodial violence (in that case custodial death) is one of the worst crimes in a civilized society governed by the rule of law. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. No civilized nation can permit custodial violence. The precious rights guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law. Like the present case, Supreme Court noted that there were instances where the police had arrested persons without warrant in connection with the investigation of an offence without recording the arrest and subjecting such person to torture to extract information or to extract confession. Reference was made to the 113th report of the Law Commission recommending prosecution of police officers for alleged offence of having caused bodily injury to a person if there was evidence that the injury was caused during the period when the person was in custody of the police in which case the Court may presume that the injury was caused by the police officer having the custody of that person during that period. While acknowledging that police in India have to perform a difficult and delicate task, Supreme Court was however clear in stating that the cure cannot be worse than the disease. Police cannot break the law like ordinary criminals. Law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation. After due consideration and after thorough deliberation, Supreme Court issued a number of directions relating to arrest and detention. In so far filing of FR No.332/2018 is concerned, it is evident there from that it was filed on the advice of superior authorities; that too, after this Court started monitoring the matter. This is certainly not acceptable and is clearly an attempt to brush aside the episode under the carpet. On going through the same and considering the discussions made above, Court is of the clear view that though FR No. 332/2018 has been filed, it is a case which is fit for trial. Secondly, it being a case of custodial violence, a case for compensation is made out because petitioner's precious right to life and liberty under Article 21 was clearly violated. Detention of the petitioner in police custody from 3 am of 22.08.2011 to 2:00 p.m. of 23.08.2011 and the violence inflicted upon him during that period in custody is clearly unconstitutional and illegal. It is not a case of negligence as opined by the Inquiry Officer in the departmental proceeding but is a case of grave misconduct. Law is well settled that in case of violation of Article 21 of the Constitution of India, the constitutional courts can award compensation in the exercise of public law remedy though such compensation would be of a palliative nature leaving the affected party free to seek compensation under the private municipal law. The law on this point starting from Rudul Sah Vs.State of Bihar, (1983) 4 SCC 141 and Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 746 onwards has been well settled by the Supreme Court and needs no reiteration. In the light of the above discussion and after thorough consideration, the following directions are issued: -
1) Learned Chief Judicial Magistrate, Kamrup (M) shall pass appropriate order on FR No.332/2018 filed on 17.07.2018 in connection with Chandmari PS Case No. 466/2011 having regard to the observations and discussions made above.
2) Petitioner shall appear in person or through lawyer before the Chief Judicial Magistrate, Kamrup (M) in connection with the above on 25.09.2018 at 10.30 am whereafter necessary order shall be passed by the learned Chief Judicial Magistrate.
3) Commissioner of Police, Guwahati City is directed to pay an amount of Rs.2 lakhs to the petitioner for his unauthorized detention and torture during detention, which amount shall be deposited by the Commissioner of Police, Guwahati City before the Registry of this Court within a period of 60 days from the date of receipt of a certified copy of this order whereafter, petitioner would be entitled to withdraw the same on proper identification;
4) Petitioner would be at liberty to institute appropriate proceeding before the competent civil court seeking compensation for the custodial violence faced by him in addition to the compensation that would be paid in terms of this order;
5) Director General of Police, Assam may look into the penalty imposed on respondent No.6 as closure of Departmental Proceeding No.4/2014 with only reprimand and caution does not appear to be commensurate to the gravity of the misconduct and thereafter to do the needful in accordance with law. With the above directions, the writ petition is disposed of. No costs.;