State vs Rameez & Others
2009 Latest Caselaw 1159 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                          CRL.M.C. 12/2006

        STATE                                      ..... Petitioner
                          Through: Mr. Pawan Behl, APP with
                          IO/Inspector Krishan Lal.
                 versus

        RAMEEZ & ORS.                         ..... Respondents
                          Through: Mr. Nikhil Bhalla, Advocate.
        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
           allowed to see the judgment?                          Yes
        2. To be referred to the Reporter or not?                Yes
        3. Whether the judgment should be reported in Digest?    Yes


                          JUDGMENT

06.04.2009

1. This petition by the State under Section 482 Code of criminal Procedure

1973 (CrPC) raises important questions concerning the role of the State as a

law enforcer and protector of the rights of citizens enshrined under the

Constitution of India, particularly of young adults for whose care and

protection the Parliament has enacted the Juvenile Justice (Care and

Protection of Children) Act 2000 (JJ Act).

2. The State has challenged an order passed by the learned Principal

Magistrate, Juvenile Justice Board (JJB) on 30th November 2005 holding

that the statements made by the four respondents (who at that time were

juveniles facing proceedings before the JJB in FIR No. 333 of 2005

registered at Police Station (P.S) New Usmanpur) disclosed the commission CRL.M.C.No. 12/2006 page 1 of 16 of cognizable offences by the policemen of that P.S. and consequently

directing the Station House Officer (SHO) of P.S. New Usmanpur to register

an FIR and give a compliance report to the JJB. The State has also

challenged in this petition the order dated 20 th December 2005 passed by the

learned Additional Sessions Judge (ASJ) dismissing the Criminal Revision

Petition No. 138 of 2005 filed by it against the aforementioned order dated

30th November 2005 passed by the learned Principal Magistrate, JJB.

Background Facts

3. The background to this petition, according to the State, is that on 15 th

October 2005 the dead body of one Putti Lal was found with stab wounds at

the Shastri Palace Park. FIR No.333 of 2005 came to be registered at P.S.

New Usmanpur as a consequence thereof. On the information provided by

one Riyazuddin, the four respondents i.e Rameez aged 15 years, Tahir aged

13 years, Abid aged 17 years and Imam Ali aged 15 years, all residents of

Shastri Park were arrested, according to the State, between 10 and 10.50

a.m. on 19th October 2005. It must be noted here that according to the

respondents they were arrested on 18th October 2005 in the evening itself

and kept overnight at P.S. New Usmanpur and sexually abused. The State

claims that after their arrest the four respondents confessed to the crime and

led the police to discovery of the weapon of offence and the purse of the

deceased. Offences punishable under Sections 392, 397, 411 read with

section 34 IPC and Section 27 of the Arms Act were added to the FIR. The

CRL.M.C.No. 12/2006 page 2 of 16 State claims that after their arrest, each of their parents was informed of their

arrest by the police and the signatures of the parents/relatives obtained on

the arrest memos. It claims that their medical examination was performed at

the GTB Hospital between 12.15 and 12.30 pm on 19 th October 2005. They

were produced before the Probation Officer of the Social Welfare

Department on 19th October 2005 and thereafter the Duty Metropolitan

Magistrate (MM) who gave orders that they should be sent to the

Observation Home for one day. The juveniles were produced before the JJB

on 20th October 2005 and their remand to the OH was extended till 31 st

October 2005. On the next date a bail application was filed by Tahir and was

fixed for hearing on 16th November 2005. The remand of the respondents

was extended till 14th November 2005. The bone age x-ray of the

respondents was conducted at the GTB Hospital on 24th October and 10th

November 2005. On 14th November 2005 the remand was extended till 28th

November 2005. Tahir‟s bail application was rejected on 16th November

2005.

4. What happened on 28th November 2005 and soon thereafter is described

in detail in the order dated 30th November 2005 passed by the Principal

Magistrate, JJB which reads thus:

"30/11/05 Pr : APP for State IO/SHO Inspector Krishan Lal has appeared with the complete file.

CRL.M.C.No. 12/2006                                                page 3 of 16
                  Sh. R.M. Bhardwaj, legal aid counsel.
        File perused.

As per the arrest memos of all the four delinquents, they were arrested on 19/10/05 in between 10 am to 10.50 am from Shastri Palace Shastri Park. There is overwriting on the arrest memos of all the 4 delinquents about the time of arrest. IO has submitted that immediately after arrest of delinquents, their parents were duly informed and they were medically examined.

Brief facts leading to the present proceedings are that all the delinquents in this case were produced before the undersigned on 28/11/05 pending investigation and they were ordered to be kept in the Observation Home for Boys till 3/12/05, on the application of IO. On that day all the delinquents orally submitted that they were sexually and physically abused by the police men at Police Station. A written submission by the 4 delinquents duly signed was also made. By that time, no sufficient time was left and so, the delinquents were directed to be produced on next date. On 29/11/05 Sh. R.M. Bhardwaj, legal aid counsel was appointed in the matter and statements of all the 4 delinquents were recorded, separately in the presence of Legal Aid Counsel.

It has come in their statement of delinquent Imam Ali, 15 Yrs.

old boy that he was lifted from his house at about 7:30/8 o‟clock by 4/5 police persons, on the pretext that his brother was calling him. He was taken to Police Station where he was beaten by the policemen. He also stated that in the police lock up, policemen made him to hold the male organ of other boys in the lockup and also asked him to suck. One policeman made him hold his own male organ. He stated that he was taken by one police man to another room and made to remove and pant CRL.M.C.No. 12/2006 page 4 of 16 and asked him to unnatural act. Juvenile further stated that the 4 policemen pissed on the face of Juvenile Abid and forced him to confess.

It has come in the statement of Juvenile Abid that 2 policemen came and apprehend him while he was going to masjid for Namaj. They took him to Police Station where he was beaten. He stated that 3 policemen urinated (pissed) on his face. Policemen forced all the 4 of them to indulge in sexual act with each other. He stated that 2/3 policemen also made them massage their male organs. Similar statements have been made by the other Juveniles Tahir 13 Yrs old and Rameez 15 yrs. old that they were lifted by policemen on 18/11/05 at about 8.30 pm from their houses and than (sic then) kept in the police lock up overnight where they were sexually and physically abused. Though, as per police record, all the delinquents were arrested on 19/10/05 in between 10 to 10:50 am, from the statements of the delinquents, it appears that their arrest has not been shown correctly in the record. Rather, it has been manipulated. The allegations made by the delinquents against the police officials are serious in nature. The revealations (sic revelations) are disgusting as well as shocking to any human conscience. On the basis of allegations made, following offence appears to have been made out:

1) Section 342 IPC ----- Wrongful confinement.

2) Section 348 IPC ----- Wrongful confinement to extort Confession.

3) Section 355 IPC ----- Assault or criminal force with intent to dishonour a person.

4) Section 367 IPC ----- Kidnapping or abducting in order to subject such person to the unnatural lust of any person.

CRL.M.C.No. 12/2006 page 5 of 16

5) Section 294 IPC ----- Obscene acts and

6) Section 23 of Juvenile ----- Punishment for cruelty to Justice (Care and Protection of juvenile or child.

Children) Act, 2000.

Most of the offences are cognizable. SHO PS New Usman Pur is directed to register FIR and give compliance report on 1/12/05.

Since the allegations are made by the delinquents against the IO of this case/and other police personnels of PS Usman Pur, it would be expedient in the interest of justice and fair investigation that the matter be investigated by an independent agency. Area DCP is directed to transfer the Investigation of this case to any independent investigating agency.

Put up for compliance on 1/12/05."

5. The State did not accept the above order and filed Criminal revision

Petition No. 138 of 2005 before the learned ASJ who initially granted a stay

of the order. By the final order dated 19th December 2005 the learned ASJ

dismissed the revision petition. While directing notice in this petition by an

order dated 3rd January 2006 this Court stayed the operation of the impugned

orders.

6. On 17th January 2008 this Court passed a detailed order and posed a

question "as to why the State alone and not the offenders has challenged the

impugned orders by which a judicial officer has drawn the State's attention

to the commission of offences." The learned APP sought time to examine

that aspect and make submissions. The case was therefore adjourned to 27th

CRL.M.C.No. 12/2006 page 6 of 16 February, 2008. Thereafter four adjournments were taken by the learned

APP for the State to address arguments on the question posed in the above

order. The case was heard finally today. Counsel for the parties and

Inspector Kishan Lal assisting the learned APP addressed arguments.

No prejudice to the State

7. This Court has failed to understand how the State could be a prejudiced in

any manner by the order dated 30th November 2005 passed by the learned

Principal Magistrate, JJB whereby its attention has been drawn to the

commission of cognizable offences by policemen of P.S.New Usmanpur.

The said order describes in some detail the statements made by the four

juveniles which prima facie show that serious crimes have been committed

by the said policemen against the four respondents who were in their

custody. Is the State suggesting that no policeman can even be accused of

committing a custodial offence? Is it completely identifying itself with the

suspects, to the extent it will seek to challenge any order that directs that the

allegations made against them for commission of serious crimes against

children should be investigated? Can this Court be unmindful of the

increasing instances of custodial crimes committed by the uniformed gentry

which have been documented in detail in the reports of the National Human

Rights Commission over the past fifteen years?

8. In our system of criminal justice, the victims of crime trust our police to

CRL.M.C.No. 12/2006 page 7 of 16 undertake a fair investigation and the State to prosecute the offenders.

Therefore, in most criminal cases involving trial of cognizable offences there

are only two parties: the State and the accused. The victims are participants

in the trial only as witnesses. The trust reposed in the State that it will

prosecute the offenders will stand betrayed if the State begins to identify

itself with the accused and seek to defend them to the extent it will not even

allow a case to be registered against them. The State in this case is doing

precisely this. What is really disturbing is that it is in the process trying to

shield policemen who are expected to be the enforcers of the law, the State is

forgetting that there are several provisions in the Indian Penal Code (IPC) to

deal with the offence of custodial violence. It is policemen who are

invariably the accused when such offences are committed. And it is the State

that has to be the prosecutor. It is incomprehensible that where policemen

are accused of sexually abusing the children arrested by them and kept in

police custody, the prosecuting agency (the State) will actually step into the

shoes of the policemen and challenge the order of a court asking that a case

be registered and the crime investigated. If this were to be permitted it would

be a sad day for the rule of law as it militates against the scheme of criminal

justice where trust is reposed by victims in the State that it will the prosecute

the perpetrators of crimes even if, and perhaps particularly if, they are

policemen.

9. The extent of identification of the police with the policemen against

CRL.M.C.No. 12/2006 page 8 of 16 whom the accusations have been made is evident from the fact that this

petition is supported by the affidavit dated 1 st January 2006 of R.L.Meena,

Deputy Commissioner of Police, North-East District, Seelampur, Delhi. It

also shows how the State as a prosecuting agency sees itself no different

from the accused policemen. What has compounded this is the conduct of

Inspector Krishan Lal, who was the IO in FIR 333 of 2005 in which the four

respondents are facing trial. Inspector Krishan Lal is now with the Bomb

Detection Team, Central District, of the Delhi Police. Yet, he has taken time

off to instruct the learned APP in the present case. He was also present

before the learned ASJ who noticed it in his order dated 19th December

2005. That he has shown unusual interest in getting the impugned orders set

aside was evident in the proceedings before this Court today. Despite the

State being ably represented by the learned APP, Mr.Pawan Behl, Inspector

Krishan Lal who was instructing him was unable to restrain himself and

insisted on making submissions before this Court. Krishan Lal submitted

that since the four juveniles did not name specifically the policemen

involved, no action could have or should have been taken pursuant to the

statements made by them before the Principal Magistrate JJB on 28 th and

29th November 2005. This Court finds the submission preposterous. It is

strange to expect the juveniles to know the names of each of the policemen

who sexually abused them. This is precisely what has to be investigated. It is

not unusual that information is received about the commission of a crime at

a particular place. The names of the actual perpetrators may not be known

CRL.M.C.No. 12/2006 page 9 of 16 immediately and will become apparent as investigation progresses. Will the

absence of accused being named relieve the police of registering the FIR and

investigating the crime?

10. The fact that Kishan Lal has, despite no longer being the IO at P.S. New

Usmanpur, taken unusual interest and himself come to this Court in the

present proceedings to instruct the learned APP to defend this case on behalf

of the accused policemen involved (as he did before the learned ASJ as well)

is itself a pointer to the disturbing feature of the both the police and the State

identifying themselves with the errant policemen who have been accused of

committing serious violations of human rights of children.

11. This is as necessary an occasion as any other to remind ourselves of the

following prescient observations of the Supreme Court in D.K. Basu v. State

of W.B., (1997) 1 SCC 416 at 423:

"The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the CRL.M.C.No. 12/2006 page 10 of 16 victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society."

Case is at the pre-cognisance stage

12. It is submitted by the State that in asking the police to register a case the

learned Principal Magistrate has acted in terms of Section 156 (3) CrPC and

reverted to the pre-cognisance stage, which was not permissible in law. This

stems from a misreading of the said order. It only records that the statements

disclose the commission of cognizable offences. But it is not an order taking

cognisance. The learned Principal Magistrate JJB had all the powers of a

magistrate in terms of Section 4 (2) read with Section 5 (2) and (3) JJ Act

and rightly acted in terms of Section 156 (3) CrPC. The statements made by

the Respondents made to the judicial officer indeed disclose the commission

of cognizable offences. The judicial officer cannot be expected to be a mute

spectator and ignore such statements. The logical course for that court to

follow was to immediately draw the attention of the police concerned to the

commission of the crime and to register a case on that basis. That is what has

precisely been done. The case is at the pre-cognisance stage. The process of

law will follow after the FIR is registered in terms of the impugned order

and investigation undertaken.

13. The other submissions made in the petition are a complete defence of the

accused policemen who are yet to be named. It is argued that the arrest was

CRL.M.C.No. 12/2006 page 11 of 16 made only on 19th and not 18th October 2005; that the learned Principal

Magistrate "has given undue weightage to some minor overwriting in the

arrest memo"; that there was no complaint made by any of the respondents

prior to 28th November 2005; and the fact that there is no description of the

police officer "clearly proves that the report is false and was made only to

pressurize the IO of this case." It is amazing that it is the State that is making

these arguments at the pre-cognisance stage, which even the accused (who in

any event are yet to be named) would not be permitted to. The State has also

filed documents to chow that one of the respondents was refused bail. One

other was involved in another incident of crime for which an FIR was

registered. This Court fails to understand how these subsequent

developments can absolve the policemen who stand accused of committing

acts of sexual and physical violence against the respondents after their arrest

in FIR No. 333 of 2005.

14. The learned APP referred to the judgment dated 12th September 2008

passed by a learned Single Judge of this Court in Crl. M.C. No. 3425 of

2005 titled „State v. Mohd. Iqbal Ghazi&Ors.‟ and submitted that it had a

bearing on the issue arising for consideration in the present case. However, a

careful perusal of the said judgment shows that it does not answer the issue

raised in the order dated 17th January 2008 passed by this Court.

Specifically it does not advert to the aspect whether the State can itself

challenge an order whereby it has been directed to register an FIR and

CRL.M.C.No. 12/2006 page 12 of 16 investigate the commission of cognizable offences. In Mohd. Iqbal the

relatives of the person who died in police custody were the complainants.

The complaint specifically named the policemen involved. The

complainant‟s initial application under Section 156 (3) was dismissed by the

MM on 11th August 2003 as not pressed and the case was fixed for

complainant‟s evidence. At a subsequent date a fresh application under

Section 156 (3) CrPC was filed by the complainant. By an order dated 5 th

November 2003 the learned MM directed an FIR to be registered and a

report to be filed by the police. The policemen named in the complaint then

filed a petition in this Court under Section 482 CrPC challenging the order

dated 5th November 2003. In the said petition the State filed an application

seeking impleadment as co-petitioner. This Court dismissed the petition and

the State, as well as the named policemen filed an SLP in the Supreme Court

which was dismissed as withdrawn after recording the statement of the

petitioners‟ counsel that "they would like to move before the Magistrate for

appropriate relief in accordance with law." The State and the two policemen

then filed applications before the learned MM praying that the order dated

5th November 2003 be recalled and the complainant be asked to lead

evidence in terms of the earlier order dated 11th August 2003. By an order

dated 25th July 2005 the application by the policemen was dismissed by the

learned MM as not maintainable and the application by the State was

deferred with a direction to register an FIR. This order was again challenged

in this Court. By the judgment dated 12th September 2008 this Court set

CRL.M.C.No. 12/2006 page 13 of 16 aside the said order by holding that after the order of the Supreme Court the

application by the policemen could not be dismissed as not being

maintainable. The said application as well as the deferred application by the

State was directed to be decided afresh. This Court finds that the said

judgment in Mohd. Iqbal nowhere holds that the State was entitled to

challenge an order directing it to register an FIR in a case of a cognisable

offence. Further the facts there show that the Court doubted if the allegations

made in the complaint disclosed the commission of a cognizable offence. In

the instant case, there is no doubt that the statements by the respondents

disclose the commission of cognizable offences. The case is at the pre-

cognisance stage. The particular policemen involved are yet to be named.

Even if they were they would not have locus to challenge the said order

directing registration of the FIR since no process or summons has been

issued to them.

15. Mr. Behl then refers to the judgment of the Supreme Court in State

Represented by Inspector of Police v. N.M.T. Joy Immaculate AIR 2004

SC 2282. This Court finds that even the said decision is not relevant to the

points that arise for consideration.

Conclusion

16. The statements made by the four respondents before the Principal CRL.M.C.No. 12/2006 page 14 of 16 Magistrate JJB on 30th November 2005 disclose the commission of

cognizable offences by the policemen concerned. The physical and sexual

abuse of the respondents in the police station were certainly not acts

performed by the policemen in the course of their official duty. There cannot

be any question of the State trying to defend such policemen. Today the

State stands before this Court on behalf of such accused, identifying itself

with them. This is a disturbing aspect for which the Court has not received

any satisfactory answer. The consequence that will ensue if the State‟s

prayer in this petition were to be accepted is that the errant policemen will

escape prosecution with impunity. Our Constitution does not permit this

undermining of the rule of law; this Court too will not.

17. For the above reasons, the impugned orders dated 30th November 2005

passed by the learned JJB as well as the order dated 20 th December 2005

passed by the learned ASJ, do not require to be interfered with. The direction

to the area DCP to transfer investigation to any independent agency was also

perfectly justified as the present petition itself shows. The State is directed to

take immediate steps to set the criminal law in motion as has been directed

by the learned Principal Magistrate JJB by the impugned order dated 30th

November 2005. The petition is accordingly dismissed. The interim order

dated 3rd January 2006 stands vacated.

18. The trial court record be sent back immediately together with a certified

CRL.M.C.No. 12/2006 page 15 of 16 copy of this order. A certified copy of this order be also delivered to the

Commissioner of Police within a week.

                                                  S.MURALIDHAR, J
APRIL 06, 2009
dn




CRL.M.C.No. 12/2006                                           page 16 of 16