HC denies bail to policeman booked for causing custodial death

 

 

The Allahabad High Court recently comprising of a bench of Justice Samit Gopal rejected the bail plea of a former police constable accused in a custodial death case (Sher Ali v. State of UP).

The court while rejecting the plea also expressed his concern and anguish at custodial violence stating that it is a blot on civilised society.

The court said, "Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Times and again the judicial verdicts of the Apex Court and other Courts have shown their concern and anguish in such matters." 

The Court said that police force is a disciplined force enshrined with the pious duty of maintaining law and order and the accused's release may have an adverse effect on the trial.

Facts of the case

On December 28, 1997 at about 04:00 AM, a person (name not known) came along with the Sub-Inspector, Police Station Kotwali, District Shahdol, Madhya Pradesh and other police personnel of the said Police Station including the present applicant to the house of the first informant (the son of the deceased) and they forcibly caught hold of the deceased and while assaulting, took him inside the Jeep, and took him away.

The first informant (son of the deceased) went to Police Station Phoolpur and to different Police Stations in District Varanasi to know the whereabouts of his father but he could not know anything.

Subsequently, on March 2, 1997 at about 08:00 AM, a police constable from Police Station Phoolpur came and told him that a wireless message was received from Shahdol PS that his father has died due to heart attack.

When he reached Shahdol, he got to know that his father was brought from Varanasi to Police Station Kotwali, District Shahdol by the police personnel including the applicant before the Court and they mercilessly and inhumanly assaulted his father due to which his father died in the Police Station itself.

It was also said that the police in order to conceal the factum of murder in conspiracy with the doctors of District Hospital, Shahdol have shown the admission of his father in the hospital one hour prior to his death and have shown the death in the hospital whereas his father had died at Police Station Kotwali itself.

When all the police stations and police officials refused to register an FIR in the matter, the first informant filed an application under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Varanasi and the investigation began in the matter as FIR was ordered by CJM.

A final report was filed in 1998, a protest petition was filed by the applicant in 2001, which was accepted in 2007 by the lower court, rejecting the final report and summoning the accused persons for offences under Sections 364, 304, 506 IPC.

Thereafter, a petition under 482 CrPC was moved before the High Court by the applicant/co-accused and the Court stayed the proceedings in the case, and the matter was heard finally in 2012 and the judgment was reserved, however, the judgment could not be delivered and the matter was directed to be listed for rehearing in 2013. Till then the stay on the proceedings continued.

Thereafter, the first informant moved the Apex Court in 2018 and hearing the matter in 2020, the Court vacated the Allahabad HC order of 2007 passed in the 482 Cr.P.C. petition and directed the Chief Judicial Magistrate, Varanasi to proceed with the matter in accordance with the law.

Thereafter, the accused and co-accused filed for and got pre-arrest bail from the High Court, however, challenging the said orders, the First informant again moved the Apex Court and finally, the Supreme Court in May 2021 set aside the orders of anticipatory bail granted in the petition of the applicant and other co-accused persons.

The Court also directed them to apply for regular bail and thereafter, the applicant surrendered on May 19, 2021 before the court below at Varanasi and filed application for bail which was rejected and therefore, the Applicant moved High Court seeking regular bail.

Contention of the Parties

Counsel for the applicant argued that:-

• The applicant has been falsely implicated in the present case.
• The deceased while being in custody at Police Station Kotwali, District Shahdol complained about chest pain and wanted to ease himself after which he was taken to the toilet by the applicant who was present there but he fell on the stairs due to severe heart attack.
• The deceased was taken to the hospital and was admitted there who died later on, for which the doctors after the postmortem could not give any definite opinion about the cause of death and preserved the viscera which was examined by the Forensic Science Lab and the report thereof does not mention of any poison being found in the body of the deceased. The death of the deceased was a natural death.
• The First Information Report is based on totally false and frivolous allegations. There is no corroboration of the version of the prosecution that the deceased died a custodial death. The death was a natural death. The applicant is a retired government servant and his implication therein is false.
• The applicant has no criminal history as stated in the affidavit and has been in jail since May 19, 2021.

AGA for the State opposed the prayer for bail and argued that:-

• The deceased was taken away from his house by the applicant and co-accused persons which is not disputed.
• The deceased was under police custody at Police Station Kotwali, District Shahdol on the date of his death.
• The death occurred while the deceased was under police custody.
• The order summoning the accused while allowing the protest petition and rejecting the final report is well considered.
• The beating of the deceased while being in police custody is evident from the fact that he has received two contusions on his body and the site of the injuries are fleshy parts of the body which can be received only after being assaulted.
• The matter is serious in nature as it concerns custodial death.
• The prayer for bail of the applicant be rejected.

Courts observation & Judgment
The court after examining the record and submissions of the parties said that it was a case of custodial violence and death was not natural.

The court said, "The deceased as per the postmortem report has received injuries on his body which are suggestive of assault on him by hard and blunt object. There is no finding in the postmortem examination report which would be suggestive of any heart problem or cardiac arrest/heart attack. There is nothing to show that the death was natural."

It, therefore, said that bail cannot be given at this stage and referred to the fact that Supreme Court had on September 23, 2020, directed the trial court to proceed with the trial on a day-to-day basis and make an endeavour to conclude it within a period of one year.

The Court also referred to the judgment passed by the Supreme Court on custodial violence in the landmark case of DK Basu Vs. State of West Bengal wherein it was held, "Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise." 

The bail plea of Sher Ali was, therefore, rejected.

Read Judgment ; 

 

SOURCE ; .latestlaws.com 

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