TaxTMI 
TaxTMI 
2006 (2) TMI 699
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....rolling near Dhamtan Saheb Bus Stand, received information that one Joginder Singh (son of petitioner) and his associates were conspiring in his house, to apply pressure on some tender-bidders. When the police party proceeded towards Joginder Singh's house, they saw two young men coming from the opposite side, on a motorcycle. On seeing the Police party, the motorcycle suddenly turned back. On suspicion, the Police party gave chase and stopped the motorcycle near a petrol-pump. The ASI asked the motorcyclist and the pillion-rider to identify themselves. The motorcyclist gave his name as Amrik Singh. The pillion-rider gave his name as Joginder Singh, a Palledar at Tohana. When the ASI asked Joginder Singh as to whether he was the same Joginder who had jumped parole in a case, Joginder Singh started running. When the Police party chased him, Joginder Singh turned back, whipped out a pistol and fired at them. Baljit Singh, one of the Constables, was hit and collapsed. In the ensuing confusion, both Amrik Singh and Joginder Singh escaped. The injured Constable succumbed to the bullet injuries. In this connection, FIR No. 112 dated 10.3.1998 under Section 302/307/352/186 IPC was reg....
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....d two minor daughters forcibly to the Police Post, through the bazaar. He was beaten with sticks on the way. When they reached the Police Post, K.P. Singh, Superintendent of Police as also the Deputy Superintendent of Police, Narwana, were present. When ASI Dharam Singh informed them that the persons brought were the father, mother and sisters of Joginder, the S.P. directed that they may be brought to 'correct mental attitude'. The ASI took him inside and beat him for about 10 minutes and brought him back before the SP again. By then, his wife and daughters were made to sit in an uncomfortable posture (as students are made to sit in schools by way of punishment). When the petitioner stated that he was not aware of his son's whereabouts, the S.P. became furious and ordered his men to remove his moustache, whereupon Dharam Singh sat on his chest (with three policemen pressing his hands and feet) and plucked his moustache. Again, they started beating him, searched his pockets and took away Rs. 2,350 which he was carrying. Then the police took him back to his house and ransacked the house. ASI Dharam Singh broke open the lock of his trunk and seized his licensed gun, some c....
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....d torture committed by the Police and imposition of punishment to those who were responsible. 3.4 The letter of the petitioner was registered as a writ petition and Rule was issued on 11.1.1999. On 13.9.2000, this Court appointed Mr. S. Muralidhar, Advocate, as Amicus Curiae, to assist the Court. The alleged Second Round of Harassment : 4. Joginder was arrested in June, 1999 by Punjab Police. Before his arrest, he was allegedly involved in two robberies (registered on 19.3.1999 with PS, City Yamunanagar, and on 21.3.1999 with PS, Indri, Karnal District). On 25.1.2001, when he was being taken to Ferozepur Court from Ambala jail, Joginder escaped from police custody. It is further alleged by the police that on 13.2.2001, Joginder and his associates murdered two residents of Tohana. 4.1 According to Police, on 29.1.2001, the SHO, Police Station, Garhi along with other police officials visited the house of petitioner in search of Joginder who had escaped from custody. Again in February, 2001 after the double murder, the S.I. of Police Station, Tohana along with the ASI in charge of Dhamtan Saheb Police Post, and other Police officials visited petitioner's house in searc....
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....reliminary inquiry and submitted the report of the Inquiry Officer (A.K. Ohri, ASP) under cover of its letter dated 22.7.2002. The findings in the said report are arrived at, on the basis of the allegations made in the affidavits filed before this Court, and the statements made by the petitioner, his family members and others (nearly 100 witnesses) before the Inquiry Officer. The CBI has concluded that some of the allegations of the petitioner were substantiated while several others were not substantiated. 5.2 On 16.9.2002, this Court directed that the State Government to take appropriate action on the report of the CBI. In pursuance of it, an FIR was lodged in Garhi Police Station, Jind District, (FIR No. 152 dated 17.10.2002 under Sections 323, 342, 343, 365 and 384 IPC) on the basis of the CBI report, naming the following 10 officers: 1. ASI Dharam Singh (by then S.I.) 2. ASI Satyanarain 238/Jind 3. HC Om Parkash No. 102/Jind (by then ASI) 4. Const. Dilbag Singh, No. 59/Jind 5. HC Balbir Singh No. 450/Jind 6. Const. Sudarshan Kumar No. 811/Jind 7. Const. Mukesh Kumar No. 99/Jind 8. Const. Dhoop Singh No. ....
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.... Joginder was involved in more number of criminal cases from the year 1991, as detailed below :- Cases in respect of petitioner : 1. FIR No. 275 dt. 13.10.72 Under Section 61/1/14 Excise Act P.S. Sadar Kaithal. FIR No. 59 dt. 13.2.78 Under Section 379 PC PS Sadar Kaithal. 3. FIR No. 231 dt. 22.7.85 Under Section 25/54/59 Arms Act P.S. Sadar Kaithal. 4. FIR No. 141 dt. 20.7.86 Under Section 61/1/14 Excise Act P.S. Sadar Narwana. 5. FIR No. 142 dt. 25.4.91 Under Section 25/54/59 Arms Act read with Section 5 TADA Act P.S. Sadar Kaithal. 6. FIR No. 147 dt. 25.4.91 Under Section 285/336 I.P.C. P.S. Sadar Kaithal. 7. FIR No. 219 dt. 17.7.91 Under Section 324/323/506/34 IPC PS Sadar Kaithal. 8. FIR No. 367 dt. 23.11.94 Under Section 323/324/148/149 IPC PS Garhi. 9. FIR No. 277 dt. 25.6.2001 Under Section 332/353/225/186/511 IPC PS City, Jind. (Note: The petitioner was convicted only in the first case. He was acquitted in all other cases.) Cases in respect of Joginder Singh: a) FIR No. 219 dated 17.7.91 Under Section 323/324/506/34 IPC PS Sadar, Kaithal. b) FIR No. 395 dated 5.7.97 Unde....
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.... extent false. iii) There is no medical evidence nor any visible scars/ marks/disability resulting from the alleged torture, either in the case of petitioner or his family members/relatives. iv) The complaints of petitioner and his relatives are against different police officers of different police stations (totally unconnected with each other) in regard to incidents at different points of time, in March, 1998, April, 1998, July, 1998, January, 2001, February, 2001 and June, 2001. v) The case of Petitioner is that he and/or his relatives were harassed, illegally confined, or tortured, to find out the whereabouts of Joginder. The police contend that the allegations by petitioner and his relatives, are by way of a well conceived plot to prevent police investigation in regard to misdeeds by Joginder and his associates and to pre-empt any action by the police against Joginder or his family members. 9. We will next refer to the factors which indicate that petitioner and his relatives have made false and exaggerated claims in regard to illegal detention, torture etc., apart from suppressing material facts. 9.1 In his letter to this Court, petitioner has a....
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....on Joginder Singh, that he had already disowned him and the family was having no connection with Joginder. He even published a notice in 'Dainik Tribune' in August, 1998 stating that he has no connection with his son Joginder. In his affidavit dated 31.8.2001 (filed in this case on 1.10.2001), petitioner reiterates that he has disowned his son Joginder and alleges that he did not have any contact with him; and that in spite of it, the police were continuously harassing him and his family members seeking information about the whereabouts of Joginder and raiding his house and his relatives' houses to find out whether Joginder was hiding there. But the CBI inquiry has categorically found that petitioner and his family members had not disowned Joginder. They were regularly meeting Joginder when he was in custody. Petitioner was traveling to meet his son Joginder whenever he was being produced in courts, in respect of different cases. In fact petitioner received money from the All India Food & Allied Workers Palledar Union, Tohana (Kacchi Union) of which he was a member, to meet the expenses of the travel (to meet his son) on 25.10.2000, 25.11.2000, 21.12.2000, 13.1.2001, 16....
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....ke action against the officers responsible for the violation. c) If the enquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation. Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades. 13. In the Bhagalpur Blinding case [Khatri (II) v. State of Bihar 1981CriLJ597], Bhagwati J., (as he then was), speaking for the Bench, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution :- ...but if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.....
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....rsonal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. This Court clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. This Court further clarified that in a given case, if the investigation is still proceeding, the Court may even defer the inquiry before it until the investigation is completed or if the Court considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it, even if the investigation or prosecution is pending. ....
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.... a railway track. This Court awarded compensation to the mother of the deceased. J.S. Verma J., (as he then was) spelt out the following principles :- Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contr....
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....od, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. 16. In D.K. Basu v. State of West Bengal 1997CriLJ743 , this Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. This Court held: Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custo....
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....ing compensation under Section 357 of Code of Civil Procedure. 18. This takes us to the next question as to whether compensation should be awarded under Article 32/226, for every violation of Article 21 where illegal detention or custodial violence is alleged. Whether compensation should be awarded for every violation of Article 21 19. In M.C. Mehta v. Union of India [1987]1SCR819 , a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 32, observed thus: We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross ....
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....e are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more s....
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.... where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture. 21. In cases where custodial death or custodial tortu....
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.... The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case..., often results in miscarriage of justice and makes the justice delivery system a suspect. 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 of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. Improving the present situation 23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrog....
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....he functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation. c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention. d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes. e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action. f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary. The endeavour should be to achieve a balanced level of functioning, where police respect human ri....
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....ical report is available.) 2. Illegal detention. 2.1. Petitioner was arrested on 10.3.1998 and taken to Police Garhi on 11.3.1998 where he was illegally detained Station for 10 days and beaten during first 5 days. 2.2. Rattan Singh alias Ratna (brother in law of petitioner) was picket up on 10.3.1998 and kept illegally at P.S. Garhi and tortured for 2 days. He was again arrested on 16.3.1998, tortured for 4 days and released on 20.3.1998. was P.S. Detention of petitioner at Garhi for some days substantiated by an oral evidence of accused in an Excise Case (Amarinder Singh). Picking up of Rattan Singh a few days after 10.3.1998 is established. However, alleged torture and wrongful confinement is supported only by his self statement and not by any medical or other evidence. Document 2 3. Incidents between 8.7.1998 and 7.11.1998 Substantiated 3.1 Munshi (HC), in-charge of Dhamtan 3.2 3.3 Saheb Police Post handcuffed petitioner and took. the petitioner to Police Post on 8.7.1998. Satya Narayan, ASI, harassed petitioner between 8.7.1998 and 7.11.1998. Sat....