UMA NATH SINGH,J - (1.) THIS writ petition under Articles 226 and 227 of the Constitution of India has been filed by the mother of deceased Anil Kumar, who is alleged to have died in police custody, with the following prayers : "(a) issue a writ of mandamus directing the respondents 1 to 5 for registration of a criminal case against respondent No. 6 and others, and also for handing over the investigation qua the same to any independent investigating agency, viz CBI, under the Delhi Special Police Establishment Act, 1946; (b) to issue a suitable writ, order or direction especially in the nature of certiorari to quash FIR No. 282 dated 11.7.2007 (Annexure P-5) lodged at PS Manimajra, Chandigarh, at the instance of respondent No.6 being illegal, concocted and without jurisdiction, hence being void ab initio; (c) issue writ in the nature of mandamus, order or direction, directing respondents 1 to 6 to compensate the legal heirs of deceased (Anil Kumar); (d) prayer for issuance/initiating contempt proceedings against respondent No. 6 for violation of Hon'ble Supreme Court's orders/directions; (e) exempt from filing the certified copies of Annexures P-1 to P-8 annexed with the present writ petition; (f) summon the police records qua the present case pursuant whereto and in furtherance whereof custodial death of Anil took place; (g) issue any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper, keeping in view the peculiar facts and circumstances of the case; (h) award the costs of the present writ petition in favour of the petitioner and against the respondents, and (i) during the pendency of the present writ petition, the respondents may kindly be directed to pay interim compensation to the dependents of deceased Anil, in the interest of justice, equity and fair play." 1. A brief background of the incident : (a) As per records of the case, it appears that the deceased left home on 11.7.2007 for his work place. At 7.00 PM ,the same day, his family members were informed by a beat Constable that the deceased had met with an accident. On enquiry, they were informed by the doctors of PGI, Chandigarh, that the deceased died at 5.30 PM. On further enquiry, family members of the deceased learnt that he was taken in custody on suspicion as also vide the statement of Constable Harpinder Singh No.2765/CP recorded under Section 161 Cr.P.C., who has mentioned that on the date of incident at about 12.00 PM, he left the police station for his beat in Madiwala Town, Manimajra and thereafter at about 12.30 PM, he left for his residence (House No. 5555/2, Modern Housing Complex, Manimajra), and when he was in front of House No. 5562, he met the complainant a lady Constable Smt. Surjit Kaur and constable one Shri Rajinder Kumar, a resident of the same Housing Complex, Manimajra, along with deceased Anil Kumar. He was informed that the deceased had since long been looking at the parked vehicles and was sitting near the water meter. They gave him a written complaint against the deceased and, there after, he took the deceased along to the Police Station on his scooter at about 1.00 PM. He took him to A/MHC Sukhminder Singh and informed him about suspicious circumstances, and mentioned his name as Anil Kumar and also showed him the complaint/application. The Police Constable as directed by the MHC took the deceased to SI Narinder Singh on the first floor of the police station. The constable thus handed him over to the SI a respondent herein and then left for his residence. This fact is also mentioned by HC Sukhminder Singh, Addl.MHC of Police Station, Manimajra, in his statement before the Investigating Officer on 11.8.2007 that the deceased was brought to the police station at 12.57 PM and he had directed the Constable concerned to take the deceased to the room of SI Narinder Singh on the first floor and thereafter, he was informed by HC Kanwar Pal Singh No. 2556/CP, MHC, at about 3.00 PM that the boy had jumped from the first floor into the open space of the police station. A similar version has also been given by Constable Subhash Chander No. 3608/CP and HC Kanwar Pal Singh. Further,it appears from the records that a CCTV Camera has been installed in the Police Station, Manimajra. Vide the recordings therein, at about 12.57.50 PM, the deceased was seen in blue pant and light shirt entering the inner gate of the police station with Constable Harpinder Singh, who talked to Addl.MHC Sukhminder Singh and then went up stairs with the boy. At 1.01.37 PM, the Constable went out of the police station and again returned at 1.48.10 PM, and thereafter, again went out at 1.51.06 PM with some other person. He again returned at 5.48.05 PM. Thereafter, at 6.09.02 PM, the Constable and SI Narinder Singh went out from police station and they came back after half an hour at 6.35.28 PM Thus, movements of the deceased ,constable Harpinder Singh,and also of accused respondent Narinder Singh have been captured in the camera. (b) Affidavit of SSP Shri Dinesh Bhatt dated 28.8.2007 gives a further minute details about the movements of accused Narinder Singh as : "With regard to the recordings of CCTV Camera installed in the Police Station Manimajra in respect of SI Narinder Singh:- At 10.19.55 AM, SI Narinder Singh is seen entering the inner gate of Police Station. At 1.36 PM SI Narinder Singh comes to the Santry and then to the A/MHC, after that he went inside the Police Station. At 1.43.08 PM, SI Narinder Singh went out from the Police Station inner gate. At 4.11.01 PM, SI Narinder Singh came inside the Police Station. At 4.16.10 PM, SI Narinder Singh went out of the Police Station. At 5.40.40 PM, SI Narinder Singh came inside the Police Station. At 6.09.02 PM, SI Narinder Singh along with C. Harpinder Singh went out from the Police Station. At 6.35.28 PM, SI Narinder Singh and C. Harpinder Singh came inside the Police Station. At 7.13.50 PM, SI Narinder Singh went out from the Police Station. At 7.22.45 PM, SI Narinder Singh came inside the Police Station. At 7.33, SI Narinder Singh went out of the Police Station. At 7.38 PM, SI Narinder Singh came inside the Police Station. At 9.53 PM, SI Narinder Singh went out from the Police Station. At 10.20 PM, SI Narinder Singh came inside the Police Station. At 10.49 PM, SI Narinder Singh went out from the Police Station." (c) Looking to seriousness of the incident, a magisterial inquiry was also ordered which was conducted by Sub Divisional Magistrate (South), UT, Chandigarh , an IAS officer. He has recorded incriminating findings in his report about the role of accused Narinder Singh and other police personnel which read as under : "As per statement of SI Narinder Singh (Flag K) when he was enquiring about the whereabouts of deceased Anil Kumar, Anil Kumar went out of room of SI Narinder Singh at Ist Floor and jumped down from the verandah in front of room adjacent to the room of SI Narinder Singh. This statement was also supported by Constable Harpinder Singh (Flag L1 and L2). The witness Brahm Pal in his statement (Flag V) stated that he was sitting in the room of SI Narinder Singh when Anil Kumar was being enquired. He also noticed deceased Anil Kumar going out of the room of SI Narinder Singh. But on perusal of record laid, finding is different from the statements of SI Narinder Singh, Const. Harpinder Singh and witness Brahm Pal. As per points mentioned above, it is certain that deceased Anil Kumar was in custody of SI Narinder Singh. On perusal of CCTV Camera recording, it appears that SI Narinder Singh had gone out of Police Station at 1.43 PM (time as per On CCTV Camera recording) and came back into Police Station at 4.11 PM (time as per CCTV Camera recording). But Anil Kumar had been lifted out of PS Manimajra as per CCTV Camera recording at 3.13 PM. Further on perusal of statements of Const. Ajit Singh (No.2743), SI Phool Singh and HC Kanwar Pal (No.2556), it appears that Narinder Singh, SI, was not in the police station at the time of falling of deceased Anil Kumar. This clearly shows negligence and gross dereliction of duty on part of SI Narinder Singh. Anil Kumar was in his custody and SI Narinder Singh had left police station without making any provision for guarding Anil Kumar in police station. It appears that had proper provision of guarding Anil Kumar was there, this incident of falling of Anil Kumar could have been prevented." The SDM's report is based amongst others also on the post mortem report. The PMR is reproduced hereunder : "1.(c)(i) Post-mortem report : "POST MORTEM LIVIDITY : Present throughout the body. Blood stains on mouth and clotted blood in nostrils. No specific odour from mouth. No sign of decomposition. Stitched chest-tube drainage wound 2 x 0.2cm over upper outer part of left chest, 9 cm outer and below left nipple. INJURIES Reddish contusion of 6 x 2 cm present on lower outer front of left side neck, 8 cm below left angle of mandible and 6 cm outer to midline. Reddish contusion 5 x 3cm present over outer aspect of right wrist. Reddish contusion of 3.5x 2cm present over left sole 4cm below little toe. Contusion of 1 x .05 cm present 1cm below injury No. 3. Reddish contusion, abrasion linear of 10 x 1cm present over outer back of left thigh vertically placed. Multiple reddish contusion/abrasion in an area of 9 x 1.5 cm present 5 cm inner to injury No. 5 size varying from 2 x 1cm - 3 x 1.5cm Abrasion of 1 x0.5 cm present over upper back of abdomen, in midline. Reddish abrasion 4 x 2cm present over middle back of left arm Reddish contusion of 2.5 x1cm present over inner-back of left wrist. Page 3 P.M.11315 II CRANIUM AND SPINAL CORD xx xx xx xx III THORAX RIBS and CARTILAGES Extravasation of blood present over front of neck musculature and subcutaneous tissue. In the midline and also in right submandibular region extravasation of blood also present in whole of left upper chest, left lower front of chest, left upper front of abdomen. Few patches over middle outer of right chest. Few patches over upper back of chest just outer to midline, whole of lower aspect of back of left side of chest. Few patches over lower aspect of left side back of abdomen just outer to midline. Left 8th to 11th rib fractures on posterior aspect adjacent to posterior aspect of ribcage. Contused left pleura lacerated at fracture site with 500 ml of fluid/blood present. Right pleural cavity showed 150 ml of blood (fluid and clotted. Left lung completely contused with superficial laceration at fracture side (lower lobe). Right lung showed contusion in fissures and was pale. Right lung 502 gm. Left lung 920gm. Heart 255gm. Blood stained pericardial fluid -100 ml. Left ventricle anterior aspect showed contusion 3 x 2cm in middle. IV. ABDOMEN PAGE 4 P.M. No. 11315 PERITONEUM 1 litre of fluid clotted blood present in peritoneal cavity. Extravasation of blood present in left retroperitoneal tissues more in lower aspect. Multiple mesentry contusion present at places. MOUTH PHARYNH and OESOPHAGUS - Blood stained fluid in mouth and oesophagus SOMATCH - Filled with greenish fluid like material 200 ml NAD LARGE INTESTINE - Contained faecal matter in small amount NAD LVER/GALL BLADDER - Pale SPLEEN - Pale, lacerated on its posterior aspect, weight 175 gm PANCREAS - NAD KIDNEYS Right - 136gm Left - 138 gm Pale Pale NAD Contused Left kidney showed contusion on superior surface. URINARY BLADDER - 200 ml of blood stained fluid present PROSTATE - 57 gm/NAD TESTIS Right - NAD Left - Contused interior surface 12 gm 13 gm PAGE 5 PM No. 11315 Injury/Injuries Disease or Deformity Fractures Left side pelvic cage showed fracture on its anterior aspect between pubic tubercle and iliopubic eminence. Bone completely fractured through and through. Extravasation of blood present in left pelvic musculature CAUSE OF DEATH - Haemmorhagic shock consequent to injuries described. However viscera sent for chemical analysis. WHETHER INJURIES WERE ANTE OR POST MORTEM : Antemortem WEAPON USED - Blunt TIME BETWEEN DEATH and POST MORTEM EXAM - 47 hours." 1(c)(ii) A CFSL report was also obtained to ascertain the exact cause of death of the deceased and for that purpose, the viscera of dead body was sent to CFSL, Chandigarh, for chemical examination. The CFSL report is as follows : "Parcel No. Description 1. It contained shirt, pants, banyan and underwear of deceased, which were marked as the exhibits 1, 2, 3 and 4 respectively in the laboratory. 7. Purpose of reference : For the examination and report. 8. Date(s) of examination : 12.07.2007 and 02.8.2007 to 18.8.2007. 9. Results of Examination : From the inspection of SOC viz. Police station Manimajra Chandigarh, it has been observed that, i) the outer side of parapet wall of the corridor of first floor and grid wall adjoining, it bear coat of brick-red colour, ii) in the corner of grid wall and the parapet wall there are signs of downward thrust to the horizontal electrical conduit on the outer side, iii) the ground is concrete tiled in the area, and iv) there are no stains which could be due to blood etc. on the ground in the area. From the inspection of the deceased's body and clothes at PGI Chandigarh before post mortem it has been observed that, i) there are signs of bleeding from the nose of the deceased, ii) there are stains which could be due to blood/body fluids in the clothes of the deceased, and iii) there are brick red marks in the clothes of the deceased. From the physical examination of the deceased's clothes vide exhibits 1,2, 3 and 4 in the laboratory, it has been observed that, i) there are brick-red marks in the regions of inner side of left upper arm, inner side of right lower arm, from upper left, front lower right and back side of right hip of exhibit-I, and ii) there are brick red marks in the region of right back pocket, and at places in front of left upper leg and front of right let of exhibit-2. On the basis of the above and injuries sustained by the deceased vide post mortem report it has been found that the deceased could have attempted crossing the parapet wall to get on to the grid and fallen from a height of about 15 ft to hit the ground on his left." (d) As per the averments in the writ petition, it appears that on 12.7.2007, Ved Parkash, uncle of the deceased, lodged an FIR with the SHO, Police Station, Manimajra, with a complaint to SSP, UT, Chandigarh (Annexures P-2 and P-3, respectively, to this writ petition),and the National Human Rights Commission. According to the writ petitioner, after a gap of 10 minutes, the police has recorded 3 DDRs and 1 FIR on the date of incident to cover up the shoddy and suspicious role of the police personnel and further, all the three DDRs and the FIR, appear to be the handiwork of accused SI Narinder Singh. In order to hush up the incident and to save their skin, the police personnel tried first to give it a colour of road accident at Naraingarh and then a fall from a building in Modern Housing Complex area, and thereafter a statement was made on Thursday morning, i.e., on 12.7.2007, that the deceased died of jumping from the first floor of Police Station, Manimajra, which was a complete 'U' turn for the police and an FIR was also registered against him but here also, accused Narinder Singh has been privy to all such moves. In the General Hospital in Sector 16, Chandigarh, an impression was given that the deceased fell from some tree. (e) It is further averred that the deceased was a well qualified promising young man. He had done 10+2 from the CBSE Board. He was conversant in computer and had also done ITI Course. He was earning around Rs. 6,000-7,000/- per month by doing odd jobs. It has also been contended that respondent No.6 has been found to be responsible for death of the deceased in police custody but the police did not take any action against him in the FIR registered against him initially under Section 304A IPC, and later, under Section 304 IPC. It has also been contended that the police did not take any action against respondent No. 6 in the FIR registered against him initially under Section 304A and later, under Section 304 IPC . In support of his submissions,and particularly in the context of prayers for transferring the case to CBI and seeking compensation, learned counsel has cited various judgments of Hon'ble the Apex Court and one judgment of this court also as follows : (1) 1980(3) SCC 70 (Raghbir Singh v. State of Haryana); (2) 1985(1) RCR(Criminal) 600 : 1985(1) SCC 552 (State of U.P. v. Ram Sagar Yadav and others); (3) 1988(2) RCR(Criminal) 233 : 1989(2) SCC 600 (Mohan Lal Sharma v. State of U.P.); (4) 1995(4) SCC 262 (State of M.P. v. Shyamsunder Trivedi and others); (5) 1995 Supp (4) SCC 450 (death of Sawinder Singh Grover); (D.K. Basu v. State of West Bengal), 1997(1) RCR(Crl.) 372 (SC); (7) 2002(4) RCR(Criminal) 752 : 2003(1) SCC 534 (Sahadevan alias Sagadewan v. State represented by Inspector of Police Chennai); (8) 2005(1) RCR(Criminal) 361 : 2005(1) Apex Criminal 202 : 2005(9) SCC 631 (Munshi Singh Gautam and others v. State of MP), and (9) 2006(1) RCR(Criminal) 802 : 2006(1) Apex Criminal 298 : 2006(3) SCC 178 (Sube Singh v. State of Haryana and others). Learned counsel while placing reliance on these judgments contended that in the cases of custodial deaths and violence, Hon'ble the Apex Court has been of the view that such cases should be entrusted to an independent agency like CBI besides adequately compensating the family of the victims by directing payment of various amounts of compensation depending upon the facts and circumstances of each case. (f) This is also an averment in the writ petition that the directions and mandate of judgment of Hon'ble the Apex Court in the matter of D.K. Basu v. State of West Bengal, 1997(1) RCR(Criminal) 372 : (1997(1) SCC 416) have been violated as under :- "(i) Respondent No. 6, SI Narinder Singh, neither prepared any memo of arrest at the time of arrest nor the same was attested by any witness, whosoever. So question of countersigning the same by arrestee (here Anil) does not arise at all. (ii) No friend or relative or other person known to Anil, having interest in his welfare, was informed at all (only information to the family was regarding Anil's road accident that too at about 7.00 PM), nor any diary qua the same was maintained; disclosing names and particulars of the police officials in whose custody the arrestee was. (iii) No copy of any of the documents including the memo of arrest, referred to above, was sent to the Illaqa Magistrate for his record." (g) Learned counsel has referred to the amendment in Section 176 Cr.P.C. incorporated vide Amendment Act 46 of 1983 to argue that the mandate of this section was also not followed. Section 176 of the Code reads as :- "176. Inquiry by Magistrate into cause of death. - (1) when any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an enquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. (2) The magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. (3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined. (4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry." On the other hand, learned senior counsel Shri R.S. Rai and Shri R.S. Cheema vehemently submitted that the Chandigarh Police has acted impartially and the moment, the incident came to the notice of senior police officers, accused- respondent No. 6 was put under suspension and a Magisterial enquiry was ordered, and on receipt of enquiry report, and postmortem and CFSL reports, the accused respondent was arrested. Learned senior counsel further submitted that the administration also informed the National Human Rights Commission about the incident. This is also a submission of learned senior counsel that the administration has acted dispassionately and genuinely, and thus, under the circumstances, this is not a fit case for directing CBI investigations and payment of compensation.
(2.) WE have carefully considered the rival submissions and perused the case record. On a careful scrutiny of the materials before us, we find considerable force in the submissions of learned counsel for the petitioner. In a catena of decisions on the controversies before us, Hon'ble the Apex Court has taken a consistent view that in cases of custodial death, the State would be liable to pay compensation, and the transfer of case to CBI for investigation would largely depend upon the facts and circumstances of each case. The earliest of the cases cited hereinabove by learned counsel for the petitioner is of Raghbir Singh. In that case, the police was found guilty of exercising third degree treatment causing death of the vicim in the lock up. The case came to Hon'ble the Apex Court in a criminal appeal, and the Hon'ble Court declined to interfere with the judgment of conviction and sentence recorded against the accused-police officials. The Hon'ble Court also made the following observations against the police for violations of human rights : "The diabolical recurrence of police torture during investigation resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death, is disastrous to our human rights awareness and humanist constitutional order. Therefore, the State should organise special strategies to prevent and punish brutality by police methodology in order to stamp out the vice of third degree treatment."
(3.) THE second case is of Ram Sagar Yadav. That case also came up before Hon'ble the Apex Court at appellate stage. The deceased had suffered multiple injuries in police custody. Hon'ble the Apex Court while reversing the judgment of acquittal recorded by the High court restored the judgment of the trial Judge with certain adverse observations against the police in para 20 of the judgment as : "20. Before we close, we would like to impress upon the Government the need to amend the law appropriately so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reason of paucity or absence of evidence. Police officers alone, and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody. Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth. The result is that persons, on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are. The law as to the burden of proof in such cases may be re-examined by the Legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection. It is ironical that, in the instant case, a person who complained against a policeman for bribery, was done to death by that policeman, his two companions and his superior officer, the Station House Officer. The vigilant Magistrate, Shri R.C. Nigam, deserves a word of praise for dutifully recording the dying declaration of the victim, which has come to constitute the sheet-anchor of the case of the prosecution." ;