Smt. Shahida vs State Of U.P. And 8 Ors
2015 Latest Caselaw 1012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 21.05.2015
 
Delivered on 06.07.2015
 
Court No. - 34
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 10756 of 2015
 

 
Petitioner :- Smt. Shahida
 
Respondent :- State Of U.P. And 8 Ors
 
Counsel for Petitioner :- Sumit Daga
 
Counsel for Respondent :- Govt.Advocate,H.N.Singh,S.K.Rao,Vijai Gautam
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Shashi Kant,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition under Article 226 of the Constitution of India has come up at the instance of one Smt. Shahida wife of Musabbar Khan, who lodged a First Information Report dated 18.08.2014 (Case Crime No. 243 of 2014) in Police Station Behat, District Saharanpur alleging that at about 11.00 am, she and her daughter Km. Arsi, were going to Behat market for shopping when, near the canal, at Behat-Murtazapur Road, a white coloured fourwheeler came in which there were five persons, who forcibly took away her daughter and ran in the vehicle towards Behat.

2. On 16.10.2014, victim Km. Arsi was recovered who stated that she was taken away forcibly by Ahsan, Irfan, Unus, Aurangzeb and Farman, all belong to the same village to which the victim belong. She was kept in the house of Rizwana at Sathauli and consistently raped. Thereafter she was thrown at some other place wherefrom she was recovered by some people and on getting conscious she informed details of her father whereafter police and her father came.

3. Her statement under Section 164 Cr.P.C. was recorded before Additional Chief Judicial Magistrate, Saharanpur on 27.10.2014 wherein also she reiterated the above facts.

4. The Investigating Officer, it is alleged was in collusion with accused persons and did not take any action or arrested them, despite complaints made by petitioner to Senior Superintendent of Police, Saharanpur on 11.11.2014 and 25.11.2014 in which she stated that accused were threatening victim and her parents. Similar complaints were also made by petitioner to D.I.G. Saharanpur on 03.12.2014, 01.04.2015 and 14.04.2015.

5. In the complaint dated 14.04.2015, petitioner also alleged that two accused, Irfan and Aurangzeb visited her house on 09.04.2015. They said that they have got the case against them closed and would make her life hell since they have patronage of ruling political party people. Similar complaint letter was also sent to S.S.P. Saharanpur on 14.04.2015 and thereafter this writ petition was filed seeking a mandamus to respondents no. 2 and 3 to arrest the accused persons and conclude investigation as early as possible.

6. It is in these circumstances this Court vide order dated 04.05.2015 required the concerned Investigating Officer to appear alongwith case diary to show progress in the matter.

7. The order was not complied with, hence, on 18.05.20.15, this Court issued warrant to Investigating Officer ensuring his presence on 21.05.2015, on which date, three officers, namely, Sri Raghuraj Singh, Sub-Inspector; Sri Hari Krishan, Sub-Inspector; and, Sri Sanjay Verma, Inspector, appeared. It was informed that initially investigation was conducted by Sri Raghuraj Singh and after his transfer it was handed over to Sri Hari Krishan and very recently it has been handed over to Sri Sanjay Verma.

8. Photocopies of 15 parchas of Case Diary were produced before us. First five parchas of Case Diary were prepared by Sri Raghuraj Singh, Sub-Inspector, which are dated 18.08.2014, 22.08.2014, 27.08.2014, 31.08.2014 and 17.09.2014. Parcha no. I, dated 18.08.2014 is of case diary pages no. 317950-317952; parcha no. II, dated 22.08.2014 is on page no. 317953; parcha no. III, dated 27.08.2014 is on page no. 317969; parcha no. IV, dated 31.08.2014 is on page no. 317971; and parcha no. V, dated 17.09.2014 is on page no. 317987. Virtually there is no progress in the matter in aforesaid parchas. Furthermore, we find that in the first three parchas the number has been mentioned as I, II and III but in parchas no. IV and V there is an overwriting and number III and IV have been made IV and V and in circle numerical number (4) and (5) has also been mentioned though it is not so mentioned in earlier three parchas. It shows some manipulation and correction at the same time in both parchas for which no explanation could be given by concerned officer, who is present in the Court.

9. The record further shows that Inspector In-charge, Kotwali Saharanpur transferred investigation from Sri Raghuraj Singh, Sub-Inspector, on his transfer, to Sri Hari Krishan, Sub-Inspector on 16.10.2014. On the same date parcha no. 6, mentioned in Case Diary in numerical number on pages 325253-325256, was prepared. On that date girl was recovered and she gave statement to Investigating Officer regarding her abduction and rape by five accused persons, named above.

10. Then comes parcha no. 7 on pages 325262-325263 mentioning facts regarding medical examination of the victim, i.e., the girl. On the same date another parcha no. 7A on pages 325264-325265 was prepared noticing the fact of recording of statement of girl under Section 164 Cr.P.C. and supurdagi of girl to her father. Further investigation is on 24.11.2014 vide parcha no. 8; 14.12.2014 vide parcha no. 9; 22.12.2014 vide parcha no. 10; 01.02.2015 vide parcha no. 11; 30.03.2015 vide parcha no. 12; 10.04.2015 vide parcha no. 13; 15.0-4.2015 vide parcha no. 14; 13.05.2015 vide parcha no. 15.

11. All these parchas have been prepared by the second Investigating Officer, i.e., Sri Hari Krishan, Sub-Inspector. After the order passed by this Court now investigation has been assigned to Inspector, Sanjay Verma, who has yet to proceed with the matter.

12. A bare perusal of aforesaid record makes it very clear that the first Investigating Officer did prepare record in a casual fashion, having made, virtually, no progress in the investigation. Thereafter the girl was recovered on her own having been thrown by accused persons. Then further investigation by second Investigating Officer also do not show any substantive progress in investigation but an usual casual steps without any effective consequence. The accused persons were threatening victim and her parents but remain free fearless and beyond the clutches of police.

13. We are surprised to see the way in which police officers are making investigation in matters involving heinous crime. We find virtually a complete apathy on their part. If something has/could happen on its own, one may thank to his luck but police has not been able to turn anything by its own efforts.

14. In more than six months, 15 parchas in the Case Diary are self speaking, demonstrating reluctant casual process of investigation undergone by concerned officials. Probably it is for this reason that crime in State of U.P. is widespread. Virtually every person residing in this State is afraid that anything may happen at any time. There is no confidence in law enforcing machinery. The law and order situation is really very vulnerable.

15. Learned Additional Advocate General, present in the Court, at one point of time finds himself optionless but to concede about deteriorating condition of law and order in the State of U.P. and also failure on the part of Police, not only in prevention of crime but also detection/ investigation and prosecution. It reminds us a situation where a legal luminary in Apex Court (Hon'ble V.R. Krishna Iyer, J.) had to observe, "Who can police the Police".

16. Police Force is meant for protection of people. Its sole aim and purpose is to maintain law and order by preventing crime. If committed, to investigate out and book the guilty person, and get punished in accordance with law. There is no other agency in the State except 'Police' who has this statutory as well as constitutional obligation for protection of people.

17. Unfortunately, it is still living in colonial State of affairs when Police used to be deployed against public to crush their genuine demands. Police, at that time, reflected glorified image of ruling Colonial State. It treated inhabitants of country as slaves and that is why always tried, not to allow them to raise their voice, against ruling Empire. More than half a century back, India attained its independence. Still nothing has noticeably improved. Though we are now governed by Constitution, given by the people of India to itself so as to function, ''for the people', ''by the people', ''of the people' but Police has not mend its ways.

18. Today people are frightened more with Police than criminals. There is virtually a lack of confidence with this Uniformed Force. Judicial cognizance can be taken of several heinous crimes, committed almost daily, many a times with the nexus of Politicians/Criminals/Police personnel making common and innocent people, target. Criminality on the part of Police is highly dangerous, being a double edged weapon. When they commit crime, they are themselves being investigating agency, naively cover up the matter. The Courts of law, ultimately and ordinarily, fail to punish guilty for want of proper evidence for which the agency is responsible.

19. In criminal prosecution, eyes and ear of courts of law, basically, is the Prosecuting Agency. When agency itself is indulged in a cover up mission, it is almost impossible to bring guilty person to book and punish. Police officials have become so daredevil that they do not hesitate in committing day light, daring offences, and thereby to stick to it, may be for the reason that they are well equipped with the system of covering it up. The situation is really alarming and needs immediate remedial measures. The public dissatisfaction and distress cannot wait indefinitely if it is not attended now. It may be too late in the day. It may burst in a people's revolution, we are witnessing in some other parts of the world.

20. In Delhi Judicial Service Association Vs. State of Gujarat & Ors., (1991) 4 SCC 406 where brutal behaviour of police in arrest and assault of a Chief Judicial Magistrate of Nadiad was considered in contempt petition as well as writ petitions entertained directly, the Court observed:

"Aberrations of police officers and police excesses in dealing with the law and order situation have been the subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it.." (Para 39)

21. Hon'ble Krishna Ayer, J in Prem Shankar Shukla Vs. Delhi Administration, (1980) 3 SCC 526 observed:

"If today freedom of the forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late."

22. In a concurring judgment in Dhananjay Sharma Vs. State of Haryana & Ors. (1995) 3 SCC 757 Hon'ble Faizan Uddin, J in para 58 observed:

"58. It is in common knowledge that in recent times our administrative system is passing through a most practical phase, particularly, the policing system which is not as effective as it ought to be and unless some practical correctional steps and measures are taken without further delay, the danger looms large when the whole orderly society may be in jeopardy. It would, indeed, be a sad day if the general public starts entertaining an impression that the police force does not exist for the protection of society's benefits but it operates mainly for its own benefit and. once such an impression comes to prevail, it would lead to disastrous consequences." (emphasis added)

23. The Court took judicial notice in para 57 of the judgment that every morning, one opens newspapers and goes through its various columns, feels very much anguished and depressed, reading reports of custodial rapes, deaths, kidnapping, abduction, fake police encounters and all sorts of other offences and lawlessness by police personnel, of which countless glaring and concrete examples are not lacking.

24. In Daroga Singh & Ors. Vs. B.K. Pandey (2004) 5 SCC 26 the Court remarked object with which the Police Force was created and said that police is the executive force of State to which is entrusted the duty of maintaining law and order and of enforcing regulations for prevention and detection of crime. It is considered by society as an organised force of civil officers under the command of State, engaged in the preservation of law and order in society and maintaining peace by enforcement of laws and prevention and detection of crime. One, who is entrusted with the task of maintaining discipline in society, must, first itself be disciplined. Police is an agency to which social control belongs. Therefore the Police has to come up to the expectations of society. Then the Court reminded itself, policing role, the country witnessed during British Raj, and, in para 44, said:

"44. We have not been able to forget the policing role of the police of British Raj wherein an attitude of hostility between the police and the policed under the colonial rule was understandable. It is unfortunate that in one of the largest constitutional democracies of the world the police has not been able to change its that trait of hostility."

25. We have no manner of doubt that Police Force constitutes real backbone of State's power to maintain law and order. But it would be possible only when agency works with real devotion and honesty to its constitutional and legal obligation, instead of satisfying its petty material demands. Come what may, still Police is Police. It can make wonders and miracles. No one has the capacity or courage to Police the Police. Harden criminals can be shown wholly innocent and innocent, honest and simple ones may be depicted a hardcore criminal. Irrespective of nature of crime committed and brought to its notice, still may not feel any anxiety to bring culprits to Courts with effective prosecution so as to ensure appropriate punishment to them. It may manage to set the State in a way that criminals may ensure their freedom by threatening victims etc. and making witnesses to loose their life and heart for supporting prosecution. The public at large has no control over it. State has to take care of this situation.

26. The real problem lies with officials responsible for investigation. It appears that they lack basic knowledge and technique. Everything proceeds in a casual fashion. Time and again, Courts have shown their disappointment with the ways, Police has worked out a case but it has made no impact upon Police Force. Unfortunately, observations and expectations of Courts have gone in vain. The Police Force have not mend its ways. Most of the matters do not come to the Court. When somebody dares to take up a matter to Court, only then the extent to which Police act ruthlessly and arbitrarily, is experienced by Courts also. The situation is really very grim and disappointing. It is high time when State should look into large spectrum of reforms to correct Police and policing in State, else things may render uncontrollable.

27. We find no hesitation and constrain to observe that the way in which police has proceeded in this matter, less say is better. Virtually there is no effective investigation whatsoever, till date. If this is the situation in a case where a girl has been subjected to a heinous crime of abduction and gang rape, what one can expect in other matters. It is now high time where the State Government and officials holding high position in Department of Home and other relevant ones, should wake up from slumber and take remedial corrective measures to make Police Force more effective, active and people oriented.

28. We direct Chief Secretary, U.P. Government; Principal Secretary (Home), U.P. Government; and, Secretary (Appointment), U.P. Government to immediately look into the matter, take appropriate steps and finalize scheme(s) so as to make U.P. Police Force, a real law and order enforcing machinery which should appear to be working and bring confidence of people, back. They shall also submit a progress report, on expiry of six months from the date of delivery of this judgment, showing steps taken by them in this regard and the consequences thereof.

29. So far as this particular case is concerned, the new Investigating Officer has assured of effective, fruitful and meaningful investigation within a month. We dispose of this writ petition permitting him to do so as stated before this Court.

30. A copy of this order shall forthwith be furnished to Chief Secretary, U.P. Government; Principal Secretary (Home), U.P. Government; and, Secretary (Appointment), U.P. Government, for communication and compliance.

Order Date :-06.07.2015

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