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2012 DIGILAW 626 (PNJ)

Sukhwinder Kaur v. State of Punjab

2012-04-25

ALOK SINGH, M.M.KUMAR

body2012
JUDGMENT Mr. M.M. Kumar, ACJ.: - A short question of law which arise for determination is whether the husband of the petitioner has been unfairly treated at the hands of the police of the respondent State while in its custody in case FIR No. 50, dated 25.3.2001, under Sections 15/61/85 of the NDPS Act, registered at Police Station Sadar, Khanna, and if so, what would be the amount of compensation payable to her. 2. The petitioner has challenged the order dated 22.7.2005, passed by the Punjab State Human Rights Commission (for brevity, ‘the Commission’), rejecting her claim for compensation as a result of death of her husband Nahar Singh in police custody (P-2). A direction has been sought to the respondents to grant her compensation for the negligent act of the police for not providing proper medical care to her husband while he was in police remand. 3. Brief facts of the case are that on 25.3.2011, the husband of the petitioner, namely, Nahar Singh was arrested by the police in case FIR No. 50, dated 25.3.2001, under Sections 15/61/85 of the NDPS Act, registered at Police Station Sadar, Khanna. On 26.3.2001, Shri Banarsi Dass, ASI-respondent No. 5, who was the then SHO, Police Station Sadar, Khanna, filed an application before the Judicial Magistrate seeking 10 days police remand of Nahar Singh. It was stated in the application that 35 Kg. of Poppy husk was recovered from him and since its origin was to be ascertained, therefore, interrogation of the accused was necessary. The Judicial Magistrate Ist Class, Khanna, after perusing the police diary, sent the accused Nahar Singh to police custody till 28.3.2001, vide order dated 26.3.2001 (A-1). On 27.3.2001 at about 10.45 p.m. Nahar Singh was sent to Civil Hospital, Khanna, along with the officials of the Police Station sadar, Khanna, where the concerned doctors had declared him ‘brought dead ‘. On 28.3.2001, the postmortem was conducted and in the postmortem report in the injuries column it has been mentioned that “left lower eyelid is bluish black and slightly swollen”. However, in the remarks by the Medical Officer it has been mentioned that “the cause of death in this case could only be ascertained after the receipt of reports of Pathologist Chemical Examiner “. However, in the remarks by the Medical Officer it has been mentioned that “the cause of death in this case could only be ascertained after the receipt of reports of Pathologist Chemical Examiner “. In the report of the Chemical Examiner, dated 17.7.2001, no poison was found in the contents of the body which were sent for chemical examination. In the final medical report, dated 5.10.2001, the Board of Doctors have concluded that the exact cause of death in the present case could not be determined. 4. When the case of death of Nahar Singh came into lime light, the Human Rights Commission took cognisance of the matter and directed the Senior Superintendent of Police, Khanna to investigate the matter. The petitioner also filed a complaint before the Commission. It is pertinent to mention here that an inquiry into the matter was also conducted by the Sub Divisional Magistrate, Khanna and concluded as under:- “From the statements and the record available on file after thoroughly going through it, the undernoted facts have come forth:- (1) The relatives of deceased Nahar Singh in their statements have leveled allegations against Hav. Pavittar Singh No. 183/Khanna that he had given beatings to Nahar Singh on 25.03.2001 and had given him deep injuries, but Senior Superintendent of Police, Khanna through his letter No. 56049/AC-3 dated 2.11.2001 and letter No. 1551/AC-3 dated 10.1.2002 had disclosed that Hav. Pavittar Singh was on official duty on 25.3.2001 and on that day he did not take any short leave, etc. Besides this, my predecessor SDM Shri S.S. Gill after visiting the village and holding enquiry from respectable persons did not come across any allegations of beating him up or entering into altercation with any one on 25.03.2001. Besides the statements of the relatives of the deceased, no evidence has come on record of the case from which it could be proved that Hav. Pavittar Singh had given beatings to the deceased Nhar Singh. So, holding of Hav. Pavittar Singh guilty for giving beatings to Nahar Singh is not appropriate. Besides the statements of the relatives of the deceased, no evidence has come on record of the case from which it could be proved that Hav. Pavittar Singh had given beatings to the deceased Nhar Singh. So, holding of Hav. Pavittar Singh guilty for giving beatings to Nahar Singh is not appropriate. (2) ASI Banarsi Dass of Police Station Sadar, Khanna who had effected the arrest at round 4 PM on 25.3.2001 in the case of selling of poppy husk had admitted in his statement that when he had taken Nahar Singh in police custody, Nahar Singh had injuries on his left hand, left elbow, left eye, were swollen and he complained of pain on his left shoulder but inspite of these injuries, after taking Nahar Singh in police custody, ASI Banarsi Dass did not get him medically examined on the same date i.e. 25.3.2001, rather got him examined medically on 26.3.2001 around 4 PM in Civil Hospital Khanna by giving an application to SMO, Khanna. Though ASI Banarsi Dass had submitted in his statement that on asking, Nahar Singh did not disclose that as to who had given him these injuries and by such replies had concealed the real facts. That on the same day, the medical examination of Nahar Singh was essential and in this way, ASI Banarsi Dass by not getting Nahar Singh medically examined in time has shown negligence and by not disclosing the name of the person who had given injuries to Nahar Singh has admitted to conceal the true facts. (3) Though from the post-mortem report, chemical report and histopathological report, the reasons for the death of Nahar Singh have not come to knowledge but aSI Banarsi Dass is at least guilty of the fact that inspite of accused Nahar Singh having injuries, he did not get him medically examined and after taking him in custody, rather than getting him examined on the same day, got him examined after 24 hours on the next day and in this way has shown negligence in his duty and while being responsible police officer has acted irresponsibly. So, in this way, ASI Banarsi Dass of Police Station Sadar, Khanna has been found guilty of being negligent towards his duty.” 5. So, in this way, ASI Banarsi Dass of Police Station Sadar, Khanna has been found guilty of being negligent towards his duty.” 5. From a bare perusal of the report of the SDM, Khanna, it is evident that ASI Banarsi Dass-respondent No. 5 has been found guilty of negligence in performing his duty by not getting the medical examination of deceased Nahar Singh conducted within 24 hours of his arrest. However, in the departmental inquiry, which was conducted against Shri Banarsi Dass-respondent No. 5 in pursuance of the directions issued by the Commission, the Enquiry Officer-Superintendent of Police (D), Khanna, has drawn a contrary conclusion and did not find him guilty of the charge. The relevant extract of the Enquiry Report, dated 21.8.2003 (R-1), reads as under:- “ I had carefully perused the file of police station Sadar Khanna regarding case FIR No. 50, dated 25.3.01, under Sections 15/61/85 N.D.P.S. Act and the report of medical examination conducted upon accused Nahar Singh on 26.3.03 by the Civil Hospital, Khanna in the present case, after the perusal of above, it is found that the above accused was found arrested on 25.3.01 at 8.30 p.m. in the police custody of police station vide point no. 14 of Zimni No. 1. The guilty ASI Banarsi Dass had asked accused Nahar Singh for medical examination, but accused Nahar Singh had refused for his medical examination, regarding which it is recorded at point No. 16 of Zimni No. 1. On 26.3.01, the medical examination of accused was got conducted by Banarsi Dass after submitting a written representation, in which Dr. B.M. Bhatia and Dr. Sudhir Sethi has written regarding the medical examination of the accused being conducted at 3.30 p.m., from which it is proved that A.S.I. Banarsi Dass had got conducted the medical examination of the accused within 24 hours i.e. within 19 hours. On 26.3.01, Zimni No. 2 has been written by A.S.I. Banarsi Dass regarding the medical examination of the accused. Regarding the writ petition No. 539/86 and writ petition no. 592/87 by D.K. Basu, as per the ruling of Hon’ble Supreme Court, it is necessary to got conducted the medical examination of the arrested person within 48 hours, whereas A.S.I. Banarsi Dass has got conducted the medical examination of the accused within 19 hours. Regarding the police custody of the accused Nahar Singh in the case, copy of rapat no. 592/87 by D.K. Basu, as per the ruling of Hon’ble Supreme Court, it is necessary to got conducted the medical examination of the arrested person within 48 hours, whereas A.S.I. Banarsi Dass has got conducted the medical examination of the accused within 19 hours. Regarding the police custody of the accused Nahar Singh in the case, copy of rapat no. 24, dated 25.3.01, zimni No. 1, dated 25.3.01, Zimni No. 2, dated 26.3.01 and Photostat copies of the ruling passed by Hon’ble Supreme Court are enclosed herewith. During department enquiry and after recording the statements of witnesses of the complaint, I have carefully and minutely perused the facts which come out till now. Thus, from the departmental enquiry conducted uptill now, no solid proof has come on file on the basis of which a charge-sheet could be filed against the guilty because the guilty has got conducted the medical examination of the accused Nahar Singh son of Karnal Singh resident of Gajipur, Police Station Sadar Khanna, within 24 hours at Civil Hospital, Khanna. So, I am declaring A.S.I. Banarsi Dass No. 133/P.R. (now Sub Inspector) innocent in the charges leveled against him in the charge-sheet in this stage too.” 6. The inquiry report, dated 21.8.2003, was accepted by the Senior Superintendent of Police, Khanna, vide order dated 23.9.2003 (R-2). Eventually, the Commission has passed an order dated 22.7.2005 (P-2), holding that there was no negligence on the part of ASI Banarsi Dass-respondent No. 5 and that no case for payment of compensation to the heirs of deceased Nahar Singh is made out. The observations made by the Commission are as under:- “ The Commission has gone through the case file carefully and has heard the counsel for the complainant also. It is clear that the cause of death of deceased Nahar Singh could not be ascertained. Injuries that he had on his body at the time of his arrest were minor. There is no evidence that any injuries were given to him while he was in police custody. The only issue was whether ASI Banarsi Dass was negligence in not getting Nahar Singh medically examined. The counsel for the complainant stated that SDM Khanna had already stated that he was guilty of negligence and therefore, compensation should be paid to the heirs of the deceased. The only issue was whether ASI Banarsi Dass was negligence in not getting Nahar Singh medically examined. The counsel for the complainant stated that SDM Khanna had already stated that he was guilty of negligence and therefore, compensation should be paid to the heirs of the deceased. However, ASI Banarsi Dass in his explanation had stated that the deceased had injuries in his body when he was arrested. No injuries were caused to him in custody. In fact, he was reluctant to get himself medically examined. Notwithstanding, he was persuaded to do so and was got medically examined within 48 hours as laid down by the Supreme Court in D.K. Basu’s case. The complainant’s counsel was not able to substantiate anything which would cast a doubt on the defence taken by the ASI Banarsi Dass. The rulings cited by him viz. 2005 (2) R.C.R. page 895 of D.B. of Madras High Court and 2004(2) R.C.R. Page 679 of Bombay High Court are not relevant to the facts of the present case. In view of the above Commission is of the view that no negligence on the part of ASI Banarsi Dass has been established and no case of compensation to the heirs of the deceased Nahar Singh is made out. Accordingly, the proceedings before the Commission are closed.” 7. After hearing learned counsel for the parties and perusing the police file we are of the view that the deceased husband of the petitioner has not been dealt with fairly at the hands of police while in custody. It is true that there is no positive evidence which may lead us to conclude that the injuries suffered by the deceased were of such a nature that it could cause death. However, it is reasonable to infer that the injuries were inflicted while he was in police custody. The deceased was produced for police remand before the Magistrate on 26.3.2001. A copy of the remand order is on record (A-1). There is no mention of any injury. The injury on the eye or swollen eye could not have been missed by the Magistrate. Therefore, it is not unsafe to presume that injuries were inflicted to the deceased after remand while he was in police custody. A copy of the remand order is on record (A-1). There is no mention of any injury. The injury on the eye or swollen eye could not have been missed by the Magistrate. Therefore, it is not unsafe to presume that injuries were inflicted to the deceased after remand while he was in police custody. In State of U.P. v. Ram Sagar Yadao, AIR 1985 SC 416 , emphasis has been laid on the significance of remand order which are passed in routine manner. In that case one Brij Lal who was a complainant against the police was picked from his village and then subjected to thrashing by the police. He suffered multiple injuries. When he was produced before the Magistrate, he was kept in Verandah. The police did not produce him physically before the Magistrate who left his seat to meet Brij Lal. He was given judicial remand by a detailed order indicating presence of injuries and also immediate medical help. The Magistrate also recorded the version of Brij Lal which disclosed the name of policemen who had inflicted injuries on him. This order became anchor sheet of conviction of those policemen after Brij Lal succumbed to his injuries. Being a case of custodial death some of the policemen were tried under Section 302 IPC for murder of Brij Lal. The trial Court convicted them but on appeal High Court acquitted them of the charge. Restoring the conviction, Hon’ble the Supreme Court inferred that injuries were inflicted on the deceased by police after arrest which were evident at the time of remand as per the order of the Magistrate. The relevant observations are available in paras 8 and 10, which reads thus: “8. Shri Nigam’s evidence is of a crucial character since it establishes, beyond any doubt, that Brijlal had extensive injuries on his person and that, at the earliest opportunity, he involved the policeman of the Hussainganj Police Station as the authors of those injuries. It is as transparent, as any fact can be, that the injuries which were found on the person of Brijlal were caused to him at the Hussainganj Police Station. It is as transparent, as any fact can be, that the injuries which were found on the person of Brijlal were caused to him at the Hussainganj Police Station. The few and simple steps in the logical process leading to that conclusion are that Brijlal had no injuries on his person when he was arrested at Haibatpur in the morning or when he was brought to the police station at about 10.00 A.M., and that, when he was sent for remand he had a large number of injuries on his person which had induced a state of shock. We are unable to see what other explanation can reasonably be given of this chain of facts except that the injuries were caused to Brijlal by the policemen attached to the Hussainganj Police Station. Who, from amongst them, is or are responsible for causing the injuries has undoubtedly to be considered. But there is no escape from the conclusion that Brijlal was assaulted while he was in custody of the respondents at the Hussainganj Police Station. 9. xxx xxx xxx 10. It is notorious that remand orders are often passed mechanically without a proper application of mind. Perhaps, the Magistrates are not to blame because, heaps of such applications are required to be disposed of by them before the regular work of the day begins. Shri Nigam has to be complemented for the sense of duty and humanity which he showed in leaving his seat and going to the verandah to see an humble villager like Brijlal. It is obvious that he was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation. What is important is that Brijlal had not committed any offence at all for which he could be remanded and, far from being an accused, he was in the position of a complainant. Respondent 1 was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where.” 8. It is, thus, evident that the remand order in cases of custodial death assumes great significance. Respondent 1 was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where.” 8. It is, thus, evident that the remand order in cases of custodial death assumes great significance. The inference for reaching the conclusion in the present case that police had caused injuries to the deceased after remand is even more imminent and easier than it was in the case of Ram Sagar Yadao (supra). Had there been any injury on the person of deceased then the Magistrate would have noticed it in his remand order. It is also evident that the injury which has been recorded in the postmortem report, in the ordinary course of nature may not be sufficient to cause death, yet unfair treatment meted out to the husband of the petitioner is patent. Therefore, we find that the police has violated the principles of law that during custodial interrogation third degree methods are not to be employed. It was necessarily negligent in treating the husband of the petitioner by delaying medical aid while in its custody and, is thus liable to compensate him. 9. In view of above, we are of the view that the ends of justice would met if compensation is granted to the petitioner. Accordingly, the respondent State is directed to pay Rs.50,000/- as compensation to the petitioner within a period of one month from the date of receipt of a copy of this order. 10. The writ petition stands disposed of in the above terms.