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Gujarat High Court · body

2019 DIGILAW 582 (GUJ)

Bharatbhai Jerambhai Bhil v. State of Gujarat

2019-05-10

SONIA GOKANI

body2019
ORDER : 1. This is a petition preferred by the petitioner under Articles 14, 19, 21, 226 and 227 of the Constitution of India seeking following prayers: “9... (A) To direct the ld. District and Sessions Court, Bhavnagar, Mahuva and ld. Court of Judicial Magistrate First Class, Talaja, Taluka Talaja, District Bhavnagar to immediately Register criminal complaints made on 03.01.2019 by petitioner and other 53 agitationists on their production before the court of custodial violence and torture by police at Datha police station, of Taluka Talaja, District Bhavnagar on 02.01.2019 in presence of Deputy Superintendent of Police, Mahuva and District Superintendent of Police, Bhavnagar and initiate appropriate proceedings and resort to prosecution in accordance with law against police officers and personnel involved in custodial violence and torture. (B) To direct ld. District and Sessions Court, Bhavnagar, Mahuva and ld. Court of Judicial Magistrate First Class, Talaja, Taluka Talaja, District Bhavnagar to provide the petitioner and 53 other agitationists accused with their statement/complaint of custodial violence and torture; (C) To direct respondent Bhavnagar Civil Hospital and Talaja Primary Health Centre to provide the petitioner and all other injured agitationists accused of FIR bearing C.R.No.I-1 of 2019 and C.R.No.I-2 of 2019 registered at Datha Police Station to provide medical certificate/MLC report as per the mandate of the law; (D) To transfer investigation to State CID Crime by an officer not below the rank of Inspector General of Police or a team of Senior Police Officers headed by the police officer of the rank of Inspector General of Police in connection with FIR bearing C.R.No.I-1 of 2019 and C.R.No.I-2 of 2019 dated 02.01.2019 registered Datha Police Station, Taluka Talaja, District Bhavnagar; (E) To immediately direct suspension and/or transfer of respondent District Superintendent of Police, Bhavnagar, Deputy Superintendent of Police, Mahuva and respondent Police Inspector or Policesub inspector of Datha Police Station, Taluka Talaja, Bhavnagar. (F) To appoint Committee of Independent Experts consisting of lawyers, bureaucrats, and senior police officers or be pleased to direct District and Sessions Judge, Bhavnagar to initiate inquiry/investigation in connection with violation of human rights and custodial violence and torture in question in particular and present report before this Hon'ble Court and be pleased to direct appropriate action against erring involved police office and personnels; (G) To direct initiation of departmental, punitive and remedial action against police officers and personnel involved in violation of human rights en mass at Datha Police Station and outside; (H) To direct payment of compensation under the law of strict liability as a part of public law for violation of human rights and custodial violence and torture in particular to the petitioner and all other 53 injured agitationists who are victim of custodial violence and torture; (I) Pending hearing and final disposal of this petition, Your Lordships be pleased to stay the investigation in connection with FIR bearing C.R.No.I-1 of 2019 and C.R.No.I-2 of 2019 registered at Datha Police Station; (J) Pending hearing and final disposal of this petition Your Lordships be pleased to order to grant interim/ad interim in terms of para. 9(A), 9(B), 9(C), 9(D), 9(E), 9(F), 9(G), 9(H); (K) Such other and further relief/s which the Hon'ble Court may deem fit, just and proper be granted in the facts and circumstances of present case and in the interest of justice.” 2. This Court on 01.02.2019 passed the following order: “1. This Court had passed following order on 29.01.2019 : “1. Leave to amend cause-title by deleting Respondent Nos. 2 to 4. 2. Permitted. 3. Permission is also granted for addition of the averment of the papers lying with the District & Sessions Court, Bhavnagar, on administrative side in Paragraph-9A-9B. 4. This petition is preferred, seeking directions in connection with 54 agitationists, who had been arrested by the police and allegedly beaten and tortured in Datha Police Station. It is also, further, requested to transfer the investigation to CID Crimes and to depute an officer not below the rank of Inspector General of Police. 5. This Court has heard the learned Advocate, Mr. Yagnik, for the petitioners, who has lamented that many agitationists have received fractures and severe injuries all over their bodies. They have also complained to the learned JMFC, Talaja, of custodial violence and torture. 5. This Court has heard the learned Advocate, Mr. Yagnik, for the petitioners, who has lamented that many agitationists have received fractures and severe injuries all over their bodies. They have also complained to the learned JMFC, Talaja, of custodial violence and torture. It is, further, urged that 92 persons were granted bail on 10.01.2019, on a condition that they shall not go near the mining site. However, those 54 agitationists, who have complained of custodial violence have not been provided with medical certificates/injury certificates, and therefore, they are before this Court. 6. Today, it is urged that, pending this petition, the petitioners have already received certificates of injury/medical certificates issued by the Civil Hospital, Bhavnagar on 28.01.2019. It is urged that so far as custodial violence and torture is concerned, which is in violation of the Bombay Police Act, 1950, and against the norms of the Human Rights, a request had been made to the learned JMFC, Talaja, who had recorded the injuries and had directed to register the complaint, in wake of the grievances made by the petitioners on 03.01.2019. However, till date, despite of recording the injuries to each one of them on solemn affirmation before the Court concerned, the FIR is not lodged. The petitioners have also approached the learned 4th Addl. Sessions Judge, Mahuva, who has shown his inability to so do it because the papers have been sent to him on administrative side, which also may be the issue with the District & Sessions Court, Bhavnagar, as papers sent there also are on administrative side. It is, therefore, urged that the provisions of the Code would not only make it incumbent upon the judicial authorities to record the injuries and other details but also to lodged the FIR, once it finds the cognizable offence to have been committed. Reliance is also placed on the decision of the Constitution Bench in ‘LALITA KUMARI V. STATE OF UTTAR PRADESH AND OTHERS’, (2014) 2 SCC 1 . 7. Let the brief report be SENT to this Court by the learned Principal District & Sessions Judge, District & Sessions Court, Bhavangar, letting this Court know of the status of this inquiry and the follow-up action, if any, taken. The IO investigating IC. R. No. 1/19, registered with Datha Police Station shall REMAIN PRESENT before this Court, on the next date of hearing. 8. The IO investigating IC. R. No. 1/19, registered with Datha Police Station shall REMAIN PRESENT before this Court, on the next date of hearing. 8. NOTICE, returnable on 1st FEBRUARY, 2019. Learned Additional Public Prosecutor waives service of notice for the respondent-State. Direct service is permitted, TODAY.” 2. Today, a report has be received from the learned Principal District & Sessions Judge, Bhavnagar, stating therein that as per the confidential report received from the Court of the learned JMFC, Talaja, it has noted 32 complaints of ill-treatment and violence by the police. It, further, has noted that it has already granted permission to the Court concerned to proceed in the manner as provided under Paragraph14 of the Criminal Manual, which read thus: “14. (1) If any allegation of ill-treatment is made by a prisoner, the Magistrate shall then and there examine the prisoner’s body, if the prisoner consents, to see if there are any marks of injuries as alleged and shall place on record the result of his examination. If the prisoner refuses to permits such examination, the refusal and the reason therefor shall be recorded. If the Magistrate finds that there is a reason to suspect that the allegations is well founded, he shall at once record the complaint and cause the prisoner to be examined by a Medical Officer, if possible, and shall make a report to the Sessions Judge, through the Chief Judicial Magistrate or to the chief Metropolitan Magistrate, as the case may be. If he has no jurisdiction to hold a necessary inquiry himself or he is not empowered to take cognizance of the offence, he should forward the prisoner with the record to the Judicial Magistrate or the Metropolitan Magistrate having jurisdiction to hold the inquiry and empowered to take the cognizance of the offence. (2) A Medical Officer, to whom a person in police custody is brought for examination, should examine the person or the prisoner, and even though no suspicious marks of injury are found, should at once report to the Magistrate authorizing notice custody that he has done so. (3) (I) Medical Officer in charge of jail must carefully examine the body of the every under-trial prisoner on the day of his arrival in jail, or at least on the day following. (3) (I) Medical Officer in charge of jail must carefully examine the body of the every under-trial prisoner on the day of his arrival in jail, or at least on the day following. (ii) Similarly, in the case of third class subsidiary jails, if there is a Sub-Assistant Surgeon of other Medical Officer in local charge of the place, every under-trial prisoner should be examined by him, if present at the station, within 24 hours of admission. (If it is not convenient to either side to conduct the matter on the next date of hearing, they shall make an alternative arrangement for conducting the matter.) In the case of lockups and subsidiary jails at places were there is no Medical Officer, the Officer in charge in all suspicious cases should send under-trial prisoners in custody to the nearest Medical Officer for examination. (4) In all such cases the Medical Officer should record the result of the examination. (5) If any marks or symptoms at all indicative of recent violence or ill-treatment are found, the Medial Officer concerned should immediately make a report to the concerned Judicial Magistrate or the Metropolitan Magistrate and to the Sessions Judge or to the Chief Metropolitan Magistrate, as the case may be. The report should specify the nature of the injuries and their position, together with the opinion of the Medical Officer as to their causation, and should state whether the prisoner makes any allegations in regard to them against the Police or others responsible for his arrest or custody. (6) If such allegations have been made, the Sessions Judge or the Chief Metropolitan Magistrate, as the case may be, should arrange for an immediate Magisterial inquiry into the complaint through such Magistrate as he may deem most convenient, unless he is satisfied by the Magistrate’s report under subparagraph (1) above, that adequate inquiry is proceedings. (7) The result of the inquiry, so far as it ascertains the truth or falsehood of the allegations made, must be communicated as soon as possible to the Court seized of the substantive case. If is considers it desirable or necessary the Court may summon the Medical Officer to give evidence in the case.” 3. (7) The result of the inquiry, so far as it ascertains the truth or falsehood of the allegations made, must be communicated as soon as possible to the Court seized of the substantive case. If is considers it desirable or necessary the Court may summon the Medical Officer to give evidence in the case.” 3. Learned Additional Public Prosecutor, on instructions from the IO concerned, who is present before this Court, has urged that peace prevails at the ground level and there is nothing, at present, for the police to submit in respect of the agitation that had taken place. 4. The papers have been sent to the Court concerned. In wake of the above developments, let this matter be posted for hearing on 11TH FEBRUARY, 2019. It is needless to say that the officer concerned shall act in accordance with law without being influenced by any of these aspects. 3. Thereafter, this Court passed an order on 24.04.2019 seeking details from the learned Principal District and Sessions Judge, Bhavnagar in relation to the judicial inquiry conducted by the learned Judicial Magistrate First Class, Talaja. 4. This Court had peremptorily fixed the matter to be heard on 07.05.2019, which could not be heard and therefore, the matter was heard on 09.05.2019. Thereafter, in the meantime, the report of learned Principal District and Sessions Judge, Bhavnagar dated 06.05.2019 was received, wherein it has submitted that learned 2nd Additional Civil Judge and Judicial Magistrate First Class, Talaja is inquiring into the complaints of ill-treatment in relation to the FIR lodged with Datha Police Station being IC. R.Nos.01 of 2019 and 02 of 2019 and the Criminal Inquiries are numbered as 01 of 2019 and 02 and 2019 which are under progress. It has been stated as follow: “1. On 04.02.2019 Criminal Inquiry was registered by him and notice was issue to Complainants for taking depositions. 2. On 08.02.2019 and on 15.02.2019, he has examined two complainants on both the above adjournments in the matters. 3. On 21.02.2019, ld. Advocate for the complainants sought time which was granted. 4. On 02.03.2019, 15 complainants and on 07.03.2019, 14 complainants were examined. 5. On 15.03.2019 the Presiding Officer was on leave. 6. On 05.04.2019, 10 complainants were examined. 7. On 19.04.2019, learned advocate for the complainants sought time which was granted and the inquiries are fixed on 18.04.2019 for further evidence of Medical Officer.” 5. 4. On 02.03.2019, 15 complainants and on 07.03.2019, 14 complainants were examined. 5. On 15.03.2019 the Presiding Officer was on leave. 6. On 05.04.2019, 10 complainants were examined. 7. On 19.04.2019, learned advocate for the complainants sought time which was granted and the inquiries are fixed on 18.04.2019 for further evidence of Medical Officer.” 5. It is also opined by the learned Principal District Judge that the learned Judicial Magistrate First Class, Talaja is progressing in the matter as required under the law. 6. Learned advocate, Mr.A.J.Yagnik has been heard with learned advocates, Mr.Vakhariya and learned advocate, Mr.Hardik Muchhala as group of matters of theirs preferred are also clubbed with this matter. 7. Learned advocate, Mr.Yagnik, on instructions, said that he made a mistake of mentioning that the victims were being cross examined at the stage of judicial inquiry. The court concerned is not permitting cross examination, but only ascertaining as to who are the police officers/accused who have injured the petitioners and others. 8. This Court extensively heard the learned advocates for the petitioners and learned Public Prosecutor Mr.Mitesh Amin with learned Additional Public Prosecutor Ms.Maithili Mehta for the State. The learned Additional Public Prosecutor now conducting the matter before the learned Judicial Magistrate First Class, Talaja also remained present. However, he hardly was aware of any progress as he is newly appointed. 9. This Court notices from the complaint, which has been lodged that there are challenges made to the clearance given by the Ministry of Environment, Forest and Climate Change, Government of India. On 02.01.2019 as averred a silent peaceful march as part of agitation started of about 500 women and 200 children from village Nicha Kotda to Bambhor to prevent mining which was to start between Talli and Bambhor village of Talaja Taluka. 10. The Bhavnagar Police is alleged to have intercepted the agitationists including the petitioners on their way to the mining site. They started teargasing and resorted to laathi charge. It is alleged that there were about 200 police personnels. This had caused serious injuries to the agitationists. There were sporadic incident of stone throwing to save themselves however, the police, A’s averred, continued severity of tear gas and laathi charge and inhuman way of dealing with the agitationists which resulted into severe injuries to 46 of them, who were shifted to Bhavnagar Civil Hospital. This had caused serious injuries to the agitationists. There were sporadic incident of stone throwing to save themselves however, the police, A’s averred, continued severity of tear gas and laathi charge and inhuman way of dealing with the agitationists which resulted into severe injuries to 46 of them, who were shifted to Bhavnagar Civil Hospital. The petitioner and others were also produced before the court of learned Judicial Magistrate First Class, Talaja after they were arrested, 54 of them had complained custodial violence and torture. Their bodily injuries were examined by the learned Judicial Magistrate. All the 92 persons have been granted bail on condition that they do not go near the mining site. 53 of them who complained of custodial violence and torture allegedly have not been given the medical certificate of their injuries. 91 were directed to remain present before the court of learned Judicial Magistrate First Class, Talaja for identification at the instance of police. The petitioner and other 53 had demanded action against the custodial violence to the learned Judicial Magistrate First Class, Talaja, where the inquiry is going on. 11. This Court notices that in the affidavit-in-reply filed by the State. It has been alleged that many police personnels have been seriously injured on account of stone throwing, pipe and the stick blows. Nearly 50 police personnels have been attacked, some of them received serious injuries on their vital parts. It is also contended that it was a duty of the police personnels to maintain security to ensure the safety of the company officials along with the maintaining the law and order situation. The women police personnels were also present and only a reasonable force had been used, there was no excess force used. It is not in dispute that both the FIRs being I-C. R.No.01 of 2019 and 02 of 2019 are registered with Datha Police Station. It is a matter of record that there are serious allegations made against the Deputy Superintendent of Police, Mahuva, who is also made one of the respondents. 12. It is not in dispute that both the FIRs being I-C. R.No.01 of 2019 and 02 of 2019 are registered with Datha Police Station. It is a matter of record that there are serious allegations made against the Deputy Superintendent of Police, Mahuva, who is also made one of the respondents. 12. This Court notices that in the first report sent to this Court by the learned Principal District and Sessions Judge, Bhavnagar on 31.01.2019, She has made a mention that learned Judicial Magistrate First Class, Talaja had sought necessary permission as per paragraph 14 of Criminal Manual to proceed against the responsible officers/employees as prima facie the Court has found the custodial violence /torture/indiscipline. However, the Court has examined those complainants for the purpose of ascertaining as to who all are responsible and against whom the proceedings could be initiated. 13. Considering the seriousness of the issue and also bearing in mind the serious allegations made against the Deputy Superintendent of Police, Mahuva and also keeping in mind the allegations and counter allegations and injuries sustained by the police officers in the entire incident, it would not be in the fitness of the things to allow the continuation of investigation at the ends of Datha Police Station or any one from the District Bhavnagar and bearing in mind the gravity and the sensitivity of the subject, this court deems it appropriate to hold that the State C.I.D.(crime) will be the fittest agency for the said purpose. 14. This Court notices that agitationists are questioning the very grant of lease for the purpose of mining of limestone mineral for being used in production of cement. This has been granted to the Ultra-tech Cement Limited for captive consumption for the period of 50 years on 08.01.2017 by Government of Gujarat. According to the agitationists, the limestone is a natural buffer, which protects agricultural land and precludes salinity of the sea water to enter the area of agriculture. They are all agriculturist and are agitated by non-hearing of their voices by the State Government or the Central Government. 15. While transferring the investigation to the State CID (Crime), it is further being directed that let these petitioners be furnished copies of FIR and injury certificates as requested. 16. They are all agriculturist and are agitated by non-hearing of their voices by the State Government or the Central Government. 15. While transferring the investigation to the State CID (Crime), it is further being directed that let these petitioners be furnished copies of FIR and injury certificates as requested. 16. With serious allegations of long term effects on account of Lease of mining of limestone, let a committee of Scientists be formed of the following reputed experts of the respective field to let the court know of consequences and repercussions of allowing mining in the area of limestone on the Agricultural lands. Let the same be done within 3 (three) months and the state shall also extend requisite support and assistance to the said committee in its work. “1. Mr.Kapilbhai Shah: Agriculture Scientist, Pioneer in initiating organic farming movement in India. In the past, member, Government of India Task Force on Organic and Non Chemical Farming, and was also Member in the Gujarat Government's Expert Committee for drafting state organic farming policy. Mobile No.7567916751 2. Dr.G.V.Ramanjaneyulu, Executive Director of Centre for Sustainable Agriculture, Hyderabad. Earlier with ICAR as a Principal Scientist. Mobile No.+91-9000699702. 3. Dr. Arunbhai Dave. Founder President of Lokbharati community science center and Managing trustee of Lokbharati Sanosara..Mobile no. 9426461277 This committee shall look into the matter on independent examination of this issue, without being influenced by rival claims of the parties and shall furnish its Scientific report to the Court concerned, which shall be taken into account by the Court. A copy of the same shall also be placed in this matter which is otherwise being disposed of, keeping all other rights of petitioners open to be agitated before the trial court and also to approach this court if not satisfied with the trial court. 16. With the above observations and directions, present petition stands disposed of accordingly. Direct Service is permitted.