MASTER HARIDAS RAMU BHANDIRGE Vs. DISTRICT SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) IN this petition under Article 226 of the constitution of India, now the only prayer that survives for our consideration is prayer (b) which reads as under :" (b) That this Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order and direction in the nature of mandamus to the respondents directing them to register a cognizable offence against the accused and the investigation be transferred to any independent investigating agency of the State government or the Central Government".

(2.) IN order to appreciate the rival contentions raised before us, a few allegations in short contained in the petition may be stated as under. The petitioner claims to be the son of one Ramu Abha Bhandirage. Ramu Bhandirge died on 4th of November, 1988 at village Wadgaon, taluka Khatav, district Satara. He hailed from village Shenawadi falling within the jurisdiction of the police station Aundh. The 6th respondent at the relevant time was the Sub-Inspector of Police attached to the said police station. Deceased Ramu Aba Bhandirge also owned certain agricultural lands in village Shenawadi. It is alleged by the petitioner that on 3rd November, 1988 when he and his father were in the field known as "ramu Pahelwancha Mala" at about 11. 30 a. m. , the 6th respondent alongwith 5 persons came in a tempo and the said tempo stopped near the field of Ramu. All the 5 persons got down. Three persons went towards the chily field. Two persons came towards the house and they enquired with the petitioner about the whereabouts of Ramu. At that time Ramu was sleeping under a tree in the mala. In the meantime it is alleged by the petitioner that he saw one police officer in the uniform sitting on the front seat of the tempo alongwith the driver. Ramu was sent for. The petitioner and his father Ramu went near the tempo. The Sub-Inspector of Police sitting in the tempo disclosed his identity and according to the petitioner, from the name plate that was attached to the uniform, his name appeared to be Amar Nalawade, the 6th respondent. Three persons who had gone to field returned and an enquiry was made to whether they found any thing like canabis (ganja ). These persons informed in the affirmative saying that dry plant without leaves were found. All the five persons came near the the tempo and, thereafter started talking arrogantly with Ramu, since deceased. One of these five persons also asked Ramu that he should hand over them whatever is there in the house (ganja) and they should not be made to take search of the house. Ramu told them that he did not have anything of that sort (ganjaj. Thereafter two persons (police officers)caught hold of Ramu by his shoulder and started assaulting him with the knees at his back. It is further alleged that they dragged Ramu towards the cattle shed. The petitioner's mother was there at the cattle shed. Ramu was slapped by one of the persons (police constable ). The petitioner and his mother requested these five persons not to assault Ramu and they could do investigation according to law. It is further alleged by the petitioner that these police officers assaulted Ramu with kicks and knees all over body. Some more allegations are contained in this petition. But, however, it is not necessary to refer to those allegations at this stage. The petitioner and his father Ramu were thereafter made to sit in the tempo on rear side. Four constables also sat alongwith them. The tempo started going towards Aundh. Due to severe assaults on Ramu he started getting severe pain. The constables also abused ramu When the tempo reached Palshi village at that time Ramu was feeling 'dizzy'. One of the police constables at that time started thrusting the stick on the chest of Ramu by force. Due to this assaults Ramu collapsed. When the tempo reached near the school at Palshi, petitioner noticed that Ramu was vomitting blood and the blood was spread over on floor of back portion of the tempo. Realising the gravity of the situation, it is alleged by the petitioner, that the tempo was stopped near Palshi village. All constables lifted Ramu and kept him on the road. The police officers then told the petitioner and Ramu that they can go anywhere they like The tempo alongwith the police constables and the Sub-Inspector of Police Nalawade went towards Aundh. With all difficulties the petitioner could take Ramu to village Pusesavli in a tempo to get medical help At Pusesavli the petitioner and his father got down from the tempo and while passing over the temple of Lord Krishna, Ramu fell down. Relatives and well wishers who reside in the said village gathered. In the meantime at the instance of Ramu petitioner went to call his relative Mr. Jyoti. One Vishnu Master also met in the said village. At that time two contables who were in the tempo came there and threatened the petitioner not to take his father to Government Hospital but to take to Dr. Sanjay Ayachit. Both constables thereafter went away. Ramu was taken to Dr. Sanjay Ayachit who gave some medicine. Various other persons of acquaintance met Ramu, whom he had narrated the incident of assault committed by the police officers. In the meantime Bhausaheb Gurav and Raghunath Maruti Salunkhe took Ramu to the house of one Rajaram bapu Waske. It is further alleged by the petitioner that on 4th November, 1988, when the petitioner's mother came back to the village at about 9. 30 a m,, petititioner was shocked to see the dead body of his father. Many persons from the village Shenawadi reached the house of Ramu including the Police Patil. One Ramchandra Chodke was sent to village Mainy where Mr. Gudge M. L. A, was residing. A message was sent through p. A. of ML. A. Shri Gudge to D. S. P. at Satara. It is this message which is more relevant in the present case. This message was sent on 4th November, 1988 to the D, S. P. at Satara which reads as under :-"rambhau Bhandirge resident of Shenewadi was assaulted by police and P. S. I. on 4th November, 1988 and as a result thereof he died. Since D. S. P. at Satara was not available the message was taken by P. A. to D. S. P. at Satara which in substance states as under : a message was received from P. A. of Shri Gudge, M. L A. that rambhai Bhandirge of Shenewadi was suspected to have planted ganja in his field. The police officers had gone to his field and when they were being brought to police station alongwith his son, police officers have assaulted Ramu on the way. He vomitted biood. Dr. Ayachit gave medical help. But he died later on. . . . . . ". This message we have taken from the statement of Vijay Narayan Vadke, a. P. to D. S. P. at Satara, which was recorded on 26-12-1988. On the basis of this statement Deputy Superintendent of Police, Karad Division, deputed one Mr. Pawar police officer to village Shenewadi to conduct the enquiry. Mr. Pawar commenced the inquiry, taken over the letter of the Police patil, conducted inquest panchanama and recorded the statements of two persons who were brother-in-law and sister of deceased ramu. This had happened on 4th November, 1988. On 6th November, 1988 further statement of Haridas-the petitioner was recorded. There were some complaints against the investigating machinery and, therefore, the investigation was taken over by the C. I. D. Mr. Pardhe, Deputy superintendent of Police, C. 1. D. who conducted further inquiry and submitted the report under Section 174 of the Cr. P. C. It is this report which concludes the entire episode as if it was a natural death. The conclusion reached by Mr. Pardhe in his report under Section 174 of the cr. P. C. reads as under : (free translation supplied by advocates ). "during inquiry it is found that P. S. I. Nalawade, Respondent no. 6, along with his staff members of Aundh police station went to the field of deceased Ramu on 3rd November, 1988 on suspicion that he had planted ganja plants. They took Ramu into the tempo but he was left on the way. Except the son haridas (the petitioner), wife Vatsalabai and Subhadrabai Rasal, neighbour, no other person and/or witnesses could furnish any evidence or material to indicate that the death of Ramu occurred due to assault by the police officers. Even the medical evidence also does not support the allegations of the petitioner haridas that Ramu was assaulted by the police officers. The inquest report as well as postmortum report also does not support the allegations of the petitioner as regards the assault by the police officers. The opinion as regards the cause of death given by the medical officer reads as under :-'probable cause of death-shock due to Mayocardical infraction (heart attack)". In view of this medical certificate, postmortem report, inquest panchanama, and in the absence of any independent material, it is concluded that Ramu died of natural death due to heart attack. A report was accordingly submitted under section 174 of the Cr. P. C. "

(3.) MR . Hudlikar, learned counsel for 6th respondent strenuously urged that assuming that there was some irregularity in not registering the First Information Report as well as the crime, but the fact remains that during the enquiry conducted under Section 174 of the Cr. P. G. it was open to the authority to weigh the material collected during the enquiry and submit a report under Section 174 of the Cr. P. C. He further urged that in view of the inquest panchanama, postmortem notes, medical certificate showing the cause of death and the earliest statement of the sister and the brother-in-law of the deceased recorded on 5th november, 1988. unmistakably indicate that the death of Ramu was natural death as contemplated under Section 174 of the Cr. P. C. He further urged that the statements of relatives of the deceased were also taken into account by Mr. Pardhe, Deputy Superintendent of Police, c. I. D. and in his opinion it was not a homicidal death but a natural death due to heart failure. This opinion, the counsel urged, could not be subject-matter of challenge in this petition. As indicated earlier the starting point would be the telephonic message received by the P. A. to D. S. P. at satara on 4th November, 1988 in which allegations were made that Ramu died due to assault on the part of the police officers. This ought to have been treated by the concerned police authorities as the First Information report relating to the commission of cognizable offence under Section 154 of the Cr. P. C. and accordingly the investigating/enquiring police officers ought to have recorded the First Information Report and registered the crime and then should have proceeded for further investigation in accordance with law. In our opinion a reverse procedure has been followed by the concerned investigating police officers collecting material and then submitting a report under Section 174 of the Cr. P. C. This report dated 31st March, 1989 submitted by Mr. Pardhe, Deputy Superintendent of police C. I. D. under Section 174 of the Cr. P. C can hardly be accepted in view of the prima facie material on record. We express no opinion as regards the correctness or otherwise of the said report as well as the material on record, but the manner in which the entire investigation proceeded, in our opinion appears to be not only irregular but illegal and contrary to the Chapter 12 and in particular contrary to provisions of sections 154 to 173 of the Cr. P. C,