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2012 DIGILAW 1885 (ALL)

Sujan Singh v. State of U. P. and Others

2012-08-23

AMAR SARAN, ANURAG KUMAR

body2012
Anurag Kumar, J.— Heard Shri V.P. Srivastava, learned Senior Advocate for the petitioner and learned Additional Government Advocate representing the State. We have also perused the writ petition, supplementary affidavit, counter and rejoinder affidavits filed in this writ petition. 2. The case of the petitioner is that he was traveling on a two wheeler Bajaj Discover 125 bearing No. UP 70 BP 0658, which was registered in the name of Vinod Kumar Pathak. The petitioner was driving a motorcycle. He was accompanied by his companion Abhijeet Pandey. Around 11.30 A.M. on the way to Varanasi when the petitioner was about 1 km. away from PS Mirza Murad, the back wheel of his bike got punctured. As there was a passage between the dividers, he crossed over to left side, which was reserved for the movement of "Kanwarias" in order to get the punctured tyre repaired. At that time respondent No. 5 approached him and demanded money for travelling on the wrong side. The petitioner tried to explain that he was an advocate and the circumstances in which he was going on the left side of the road. This only enraged respondent No. 5, who began to assault the petitioner in a shameful manner. He even took the petitioner in custody. His cell phone was seized and it was only returned after the intervention of some subordinate officials. The petitioner then got himself medically examined at Sir Sunder Lal Hospital, Kashi Hindu University, Varanasi and has annexed the injury report dated 14.7.2012. 3. In the supplementary affidavit, he has filed the photograph which corroborates the medical injury report and shows injuries on his legs. 4. Respondent No. 5 in his counter affidavit has denied the allegations and stated that in the month of "Sawan" due to heavy flow of "Kanwarias" on the Allahabad-Varanasi road, one side of the road is totally reserved for the movement of the "Kanwarias". A few days prior to 14.7.2012 another incident has taken place in which several vehicles were burnt at Bhadohi. The petitioner was illegally travelling on the wrong side of the road, which was reserved for the "Kanwarias". He entered into an argument when he was checked by the constable and insisted that he would only travel on the side reserved for the Kawarias. The petitioner had even paid the penalty of Rs. 100/- because he was challaned. The petitioner was illegally travelling on the wrong side of the road, which was reserved for the "Kanwarias". He entered into an argument when he was checked by the constable and insisted that he would only travel on the side reserved for the Kawarias. The petitioner had even paid the penalty of Rs. 100/- because he was challaned. The challan dated 14.7.2012 and the payment thereof dated 15.7.2012 are annexed as Annexures 1 and 2 to the counter affidavit, shows that he admitted his fault. 5. Shri V.P. Srivastava, learned Senior Advocate appearing for the petitioner sought to argue that the Challan (Annexure 2 to the counter affidavit) is dated 15.7.2012 and it was diverted from the money which the petitioner was forced to pay. The time of incident as per Annexure 1 was 14.7.2012 at 11.30 a.m., therefore, the petitioner was not wrong in stating that the incident has taken place at the said time. 6. The question whether the petitioner had paid Rs. 100/- by way of Challan or the said money has been forcibly extracted from him, is not very important. However, prima facie, we are satisfied that there is material to show that the petitioner was illegally tortured and assaulted by respondent No. 5. He was first examined at Sir Sunder Lal Hospital, Kashi Hindu University, Varanasi, which is a government hospital and, therefore, the claim of the police that the petitioner was only examined by a private doctor which is Annexure 2 to the supplementary affidavit is not correct. Also prima facie, we did not see any reason why the petitioner should make such allegations against respondent No. 5, if no such incident had occurred. Also we see little reason to disbelieve the photograph of the petitioner, which shows the presence of the typical lathi injuries that are given by the police. 7. Such action of the police not only with an advocate but also with a common man can never be justified. 8. In this respect reliance was placed by the learned counsel for the petitioner on the decision of Hon'ble Supreme Court in the case of Prithipal Singh and others Vs. State of Punjab and another, (2012)1 SCC 10 , wherein it has specifically been mentioned "that the torture in custody flouts the basic right of the citizens recognised by the Indian constitution and is an affront to human dignity. State of Punjab and another, (2012)1 SCC 10 , wherein it has specifically been mentioned "that the torture in custody flouts the basic right of the citizens recognised by the Indian constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnished the image of any civilised nation and encourages the men in 'Khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice delivery system would be shaken and civilisation itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with." 9. In the case of State of Madhya Pradesh Vs. Shyamsunder Trivedi, 1995 STPL (LE) 20627 SC= (1995) 4 SCC 262 , it has been observed as under: "That ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present 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. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basid right of the citizens recognised by the Indian Constitution and is an affront to human dignity. Torture in custody flouts the basid right of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnished the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves." 10. In view of the above, we direct respondent No. 3, the Director General of Police, Lucknow, UP to get the matter probed by an authority other than respondent No. 4, Shri B.D. Palson, Senior Superintendent of Police, Varanasi after giving an opportunity to explain his case to respondent No. 5. in case the allegations of the petitioners are substantiated, he should take stringent action against respondent No. 5. 11. With these observations, this petition is disposed of. _____________