Samay Singh & 5 Others vs State Of U.P. & 7 Others
2014 Latest Caselaw 5186 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court
 

 
Case :- WRIT - C No. - 43960 of 2014
 

 
Petitioner :- Samay Singh & 5 Others
 
Respondent :- State Of U.P. & 7 Others
 
Counsel for Petitioner :- Ajay Kumar,Rajiv Lochan Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Dilip Gupta, J.

A first information report was lodged at Police Station Gulawathi, District Bulandshahar, which was registered as Case Crime No.662 of 2009 in regard to the alleged custodial death of a person by the name of Shiv Kumar Sharma due to an assault by police personnel. The first petitioner was the Station Officer Incharge, whereas the other petitioners were the Sub Inspector and Constables respectively at the Police Station. A first information report was registered on 24 December 2009 under Sections 302 and 395 of the Indian Penal Code1. A charge sheet was submitted against the accused under Section 304 IPC on 27 April 2010. The petitioners surrendered and applied for bail and were eventually granted bail by the Additional District and Sessions Judge, Court No.2, District Bulandshahar by diverse bail orders, which are annexed as Annexure No.4 to the proceedings. Charges have been framed. The petitioners were suspended, pending a disciplinary enquiry and have since been reinstated in service.

The National Human Rights Commission2, during the course of a sitting at Lucknow on 15 January 2014, took up the matter pertaining to the custodial death of Shiv Kumar Sharma on 24 December 2009. By a communication dated 18 February 2014, the NHRC informed the Chief Secretary of the State Government of its decision to recommend to the State Government to pay a sum of Rs.5 lacs as monetary relief to the next of kin of the deceased Shiv Kumar Sharma. The decision which has been extracted in the communication dated 18 February 2014, reads as follows:-

"The Commission was informed by Sr. Supdt. of Police, Bulandshahar, about the custodial death of Shiv Kumar Sharma. It was reported that Mohit Sharma and Shiv Kumar were arrested on the night intervening 23rd/24th December, 2009 in a case of extortion. On 24 December, 2009, Shiv Kumar became unwell in the morning. He was taken to District Hospital where he died.

The post-mortem revealed 17 ante-mortem injuries. According to the opinion of the post-mortem surgeon, the death had occurred due to shock and haemorrhage resulting from ante-mortem injuries.

The Commission asked the State Government to order a CBCID inquiry in the case. Accordingly, the matter was investigated by CBCID and the report of CBCID investigation was forwarded to the Commission by DIG, CBCID vide communication dated 29 May, 2011. The investigating agency concluded after investigation that Shiv Kumar Sharma had died in police custody as a result of assault and torture by policemen.

A show-cause notice under Section 18 of the Protection of Human Rights Act, 1993, was issued to the Government of Uttar Pradesh. The State Government has contended that a criminal case against the policemen is pending in the Court and, therefore, it would not be appropriate for the Commission to recommend any monetary relief at this stage.

We find no merit in the contention of the State Government. The issues which are likely to arise in the criminal trial would be different. While the Court would be mainly concerned with the culpable liability of the accused policemen, the Commission is not concerned with the identity of the perpetrators of the crime. It is mainly concerned with the violation of human rights. The pendency of criminal trial need not detain the Commission. Therefore, it is recommended to the Government of Uttar Pradesh to pay a sum of Rs. 5 lakhs as monetary relief to the next of kin of the deceased Shiv Kumar Sharma. The Chief Secretary, Government of Uttar Pradesh, shall submit compliance report along with proof of payment within eight weeks."

Based on the decision of the NHRC, a communication was addressed by the Deputy Secretary in the State Government to the Additional Director General of Police on 30 July 2014, granting approval for the disbursal of compensation of Rs.5 lacs for the next of kin of the deceased and directing the recovery of the amount from the "guilty police personnel" (as stated in the order), who are the petitioners before this Court.

The submission which has been urged on behalf of the petitioners is that the NHRC awarded compensation against the State in the amount of Rs.5 lacs and there has been no determination of the culpability of the petitioners in the order as communicated on 18 February 2014. Moreover, it has been urged that the petitioners are still awaiting trial on the charge that they have committed an offence under Section 304 IPC and unless their culpability is established beyond reasonable doubt in the criminal trial, there was no justification on the part of the State to direct the recovery of an amount of Rs.5 lacs from the petitioners. Finally, it has been urged that though disciplinary proceedings have been initiated against the petitioners, they have not been finalized and hence an order of recovery at this stage is not warranted.

On the request of the learned Standing Counsel, we had granted time to take instructions. The learned Standing Counsel has placed the instructions received by him from the Senior Superintendent of Police, Bulandshahar on the record.

At the outset, it must be noted that the NHRC issued a notice to show cause to the State under Section 18 of the Protection of Human Rights Act, 1993. It was the contention of the State that a criminal trial against the accused police personnel was pending in Court, and therefore, it would not be appropriate to recommend the grant of monetary compensation by the State. The NHRC in its order dated 15 January 2014 (as communicated on 18 February 2014 to the Chief Secretary) categorically held that while the Court where the trial is pending would be concerned with the culpable liability of the accused policemen, the NHRC was not concerned with the identity of the perpetrators of the crime but was concerned mainly with a violation of human rights. The culpability of the petitioners is still to be established since apparently the criminal trial is pending. The disciplinary proceedings have still not been concluded. Hence, at this stage, even before a determination in regard to the involvement of the petitioners in the alleged crime, it was neither lawful nor proper for the State to direct recovery from the petitioners. The impugned communication of the Deputy Secretary dated 30 July 2014 proceeds to direct recovery on the basis that the petitioners are "guilty police personnel". This clearly is not the legal position.

Consequently, we are of the view that the direction which is contained in the impugned order for the recovery of the amount of compensation as awarded by NHRC from the petitioners is unsustainable and would have to be set aside. To that extent, the communication of the second respondent dated 30 July 2014 directing recovery from the petitioners is quashed and set aside. We clarify that we have not interfered with the approval which was granted in pursuance of the order of the NHRC for the disbursement of compensation of Rs.5 lacs to the next of kin of the deceased.

The petition is, accordingly, allowed. There shall be no order as to costs.

Order Date :- 28.8.2014

VMA

(Dr. D.Y. Chandrachud, C.J.)

(Dilip Gupta, J.)