- (1.) A first information report was lodged at Police Station Gulawathi, District Bulandshahar, which was registered as Case Crime No.662 of 2009 in regard to the alleged custodial death of a person by the name of Shiv Kumar Sharma due to an assault by police personnel. The first petitioner was the Station Officer Incharge, whereas the other petitioners were the Sub Inspector and Constables respectively at the Police Station. A first information report was registered on 24 December 2009 under Sections 302 and 395 of the Indian Penal Code(IPC). A charge sheet was submitted against the accused under Section 304 IPC on 27 April 2010. The petitioners surrendered and applied for bail and were eventually granted bail by the Additional District and Sessions Judge, Court No.2, District Bulandshahar by diverse bail orders, which are annexed as Annexure No.4 to the proceedings. Charges have been framed. The petitioners were suspended, pending a disciplinary enquiry and have since been reinstated in service.
(2.) THE National Human Rights Commission(NHRC), during the course of a sitting at Lucknow on 15 January 2014, took up the matter pertaining to the custodial death of Shiv Kumar Sharma on 24 December 2009. By a communication dated 18 February 2014, the NHRC informed the Chief Secretary of the State Government of its decision to recommend to the State Government to pay a sum of Rs.5 lacs as monetary relief to the next of kin of the deceased Shiv Kumar Sharma. The decision which has been extracted in the communication dated 18 February 2014, reads as follows: - "The Commission was informed by Sr. Supdt. of Police, Bulandshahar, about the custodial death of Shiv Kumar Sharma. It was reported that Mohit Sharma and Shiv Kumar were arrested on the night intervening 23rd/24th December, 2009 in a case of extortion. On 24 December, 2009, Shiv Kumar became unwell in the morning. He was taken to District Hospital where he died. The post -mortem revealed 17 ante -mortem injuries. According to the opinion of the post -mortem surgeon, the death had occurred due to shock and haemorrhage resulting from ante -mortem injuries. The Commission asked the State Government to order a CBCID inquiry in the case. Accordingly, the matter was investigated by CBCID and the report of CBCID investigation was forwarded to the Commission by DIG, CBCID vide communication dated 29 May, 2011. The investigating agency concluded after investigation that Shiv Kumar Sharma had died in police custody as a result of assault and torture by policemen. A show -cause notice under Section 18 of the Protection of Human Rights Act, 1993, was issued to the Government of Uttar Pradesh. The State Government has contended that a criminal case against the policemen is pending in the Court and, therefore, it would not be appropriate for the Commission to recommend any monetary relief at this stage. We find no merit in the contention of the State Government. The issues which are likely to arise in the criminal trial would be different. While the Court would be mainly concerned with the culpable liability of the accused policemen, the Commission is not concerned with the identity of the perpetrators of the crime. It is mainly concerned with the violation of human rights. The pendency of criminal trial need not detain the Commission. Therefore, it is recommended to the Government of Uttar Pradesh to pay a sum of Rs. 5 lakhs as monetary relief to the next of kin of the deceased Shiv Kumar Sharma. The Chief Secretary, Government of Uttar Pradesh, shall submit compliance report along with proof of payment within eight weeks."
(3.) BASED on the decision of the NHRC, a communication was addressed by the Deputy Secretary in the State Government to the Additional Director General of Police on 30 July 2014, granting approval for the disbursal of compensation of Rs.5 lacs for the next of kin of the deceased and directing the recovery of the amount from the "guilty police personnel" (as stated in the order), who are the petitioners before this Court. The submission which has been urged on behalf of the petitioners is that the NHRC awarded compensation against the State in the amount of Rs.5 lacs and there has been no determination of the culpability of the petitioners in the order as communicated on 18 February 2014. Moreover, it has been urged that the petitioners are still awaiting trial on the charge that they have committed an offence under Section 304 IPC and unless their culpability is established beyond reasonable doubt in the criminal trial, there was no justification on the part of the State to direct the recovery of an amount of Rs.5 lacs from the petitioners. Finally, it has been urged that though disciplinary proceedings have been initiated against the petitioners, they have not been finalized and hence an order of recovery at this stage is not warranted.;