M.A.Khan vs State & Ors.
2013 Latest Caselaw 1751 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 6th MARCH, 2013
                                    DECIDED ON : 18th APRIL, 2013

+              W.P.(Crl.) 2131/2005 & CRL.M.A.4000/2011

       M.A.KHAN                                   ....Petitioner
                       Through :   Mr.Bahar U. Barqi, Advocate.

                                   versus

       STATE & ORS.                             ....Respondents
                Through :          Mr.Saleem Ahmed, ASC with Ms.Charu
                                   Dalal, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Petitioner- M.A.Khan has preferred the present Writ Petition

under Article 226 of the Constitution of India read with Section 482 of the

Code of Criminal Procedure (for short Cr.P.C.) seeking directions to

Central Bureau of Investigation (for short CBI) to conduct thorough

inquiry and investigation for the atrocities committed upon his son by

police officials of Police Station Bhajanpura and to quash the inquiry

conducted by Mr.D.C.Srivastava, Additional Deputy Commissioner of

Police (North-East), Delhi conveyed by letter dated 05.10.2005.

2. I have heard the learned counsel for the parties and have

examined the record. Counsel for the petitioner urged that on 14.02.2005,

Smt.Qamar Abidi, R/o C-5/56, First floor, Yamuna Vihar, Delhi expired.

Danish, her son, came to know about her death at 11.30 P.M. when he

opened the door of the house. The investigation was taken over by the

police of Police Station Bhajanpura. On 16.02.2005, the police took him

and his son Rajab Ali aged 21 years to the Police Station at about 10.30

P.M. They asked several questions from him for which he gave

satisfactory reply. However, Rajab Ali was taken to Ist floor and locked

up in a room. 7-8 police officials including HC Rishipal Singh, SI

Virender Singh Punia were present there. During interrogation, pressure

was put upon Rajab Ali to name Sh.Jammi, deceased's step son and Asad,

another tenant, to implicate them in the case. When Rajab Ali refused to

do so, he was given merciless beatings. He was tortured and assaulted

throughout the night. At about 05.00 A.M., on 17.02.2005, they were

released after getting their signatures on blank papers. Rajab Ali sustained

injuries and multiple fractures. He was taken to LNJP Hospital where the

doctors refused to lodge MLC. Thereafter, he took Rajab Ali to GTB

Hospital where MLC No.369/2005 was prepared and he was given

treatment. The petitioner lodged complaint dated 17.02.2005 but no legal

action was taken. He and his wife were forcibly brought at the Police

Station on the pretext of interrogation and threatened not to lodge any

complaint. They were released at 12.30 A.M. after obtaining signatures on

blank papers. On 22.02.2005, Rajab Ali's conditions deteriorated and he

was referred to Institute of Human Behaviour & Allied Sciences (for short

IHBAS). Ravi Sharma, ACP conducted some enquiry and gave clean chit

to the police officials. Counsel urged that the complaint dated 17.02.2005

disclosed commission of cognizable offence but for ulterior reasons, no

First Information Report was lodged by the police. The petitioner's son is

still under treatment at IHBAS due to mental problem caused by beatings

and torture in custody. Fair investigation was not carried out by the police

to protect its officials. Counsel referred order dated 12.01.2006 by which

Rajab Ali was granted bail. The police did not comply the directions given

in the order. Reliance was placed upon the authorities reported in (2006) 2

SCC 677, AIR 2009 SC 984 and 2011 (2) Crimes 142 (SC).

3. Counsel for the respondents urged that the petitioner or his

son were not beaten during interrogation. They are suspects for Qamar's

murder and have not deliberately joined the investigation. No serious

injury was found on the body of petitioner's son when he was medically

examined on 17.02.2005 at GTB Hospital. Report from IHBAS dated

21.03.2005 also reveals that petitioner's son is normal and there was no

sign of any bone injury.

4. Status report reveals that both the petitioner and Rajab Ali

are suspects and have been arrested on 16.04.2006. Vide order dated

12.01.2006, Rajab Ali was granted anticipatory bail with the directions to

join the investigation on 17.01.2006 at 04.00 P.M. at PS Bhajanpura and

on subsequent dates as may be required. Vide order dated 28.09.2007, this

Court disposed of the bail application No.71/2006 with the directions that

Rajab Ali would not be arrested in FIR No.59/2005 under Section 302

IPC, PS Bhajanpura. The Investigating Officer would visit his residence

after three months to verify his mental health status. Medical papers

pertaining to the continued treatment of the petitioner's son would be

supplied for verification to the Investigating Officer. It would be open to

the State to file an appropriate application should mental health of the

petitioner's son improve. Status report further reveals that the application

has been moved before Metropolitan Magistrate, Karkardooma Courts,

Delhi for constitution of Medical Board to know the present status of

Mohd. Rajab Ali.

5. It is disputed that the petitioner was given beatings or/ and

tortured during interrogation. The petitioner or his son did not file any

complaint case or civil suit against the respondents. The petitioner earlier

filed Writ Petition No.275/2005 in this Court seeking directions to register

FIR against SI Virender Singh Punia, HC Richpal Singh and six other

police officials. Prayer was made that the matter should be investigated by

CBI. Notices were issued to the respondents. DCP Vigilance (PHQ) was

directed to conduct enquiry and submit the report vide order dated

01.03.2005. On 17.03.2005, this Court asked Medical Superintendent,

IHBAS to report about the mental health of petitioner's son Rajab Ali. On

23.03.2005 after getting report from IHBAS, this Court directed to

constitute a Medical Board of doctors of AIIMS. DCP Vigilance (PHQ)

filed vigilance enquiry report dated 04.05.2005 reporting that the

allegations could not be substantiated and the petitioner was avoiding to

join the investigation in case FIR No.59/2005. The Medical Board

examined the petitioner's son. Vide order dated 09.08.2005, this Court

dismissed the writ petition with the directions to DCP (North-East) 'to

look into the matter and take necessary action in accordance with law'.

DCP (North-East) conducted enquiry in which the allegations about

beatings and torture could not be substantiated. The petitioner was given

due intimation.

6. Prima facie, there is nothing on record to show that Rajab Ali

was giving severe beatings or was tortured during interrogation. There is

dispute as to what caused the mental trauma. When the petitioner's son

was medically examined at GTB Hospital on 17.02.2005, he was

conscious and oriented. Only multiple abrasions were noticed on his body.

No fracture was detected on the body. No X-ray report has been placed on

record. He was not admitted in the Hospital. When Rajab Ali was

medically examined by board of doctors at AIIMS from 14.05.2005 to

24.05.2005 no evidence of fracture or organic brain disease was found.

7. The petitioner had earlier filed petition W.P.(Crl.)

No.275/2005 seeking similar relief claimed in present petition which was

declined. No material change of circumstances emerged thereafter to

entertain the present writ petition on similar grounds. Rather enquiries

conducted by two different agencies did not substantiate the petitioner's

allegations.

8. Vide order dated 30.01.2009, judgment of Supreme Court in

'Aleque Padamsee and ors. Vs. Union of India (UOI) and ors.' 2007

Crl.L.J.3729, was brought to the notice of the counsel for the petitioner. It

held :

'Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued t the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code'.

9. In 'Sakiri Vasu vs. State of U.P. and Ors.', AIR 2008 SC

907, the petitioner had prayed that the matter be ordered to be investigated

by CBI. It held :

'10. It has been held by this Court in CBI and Anr. v. Rajesh Gandhi and Anr. : 1997CriLJ63 that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate

can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.'

10. The petitioner was not justified in approaching High Court

time and again seeking extraordinary jurisdiction for direction to

investigate the case through independent investigating agency like CBI.

The principles enunciated in the above referred decisions make it clear

that if any person is aggrieved by the inaction on part of the police or not

getting proper response, there are adequate remedies provided under the

Criminal Procedure Code. The allegations are vague and unspecific and

have not been substantiated with cogent materials. The petition lacks

merits and is dismissed.

11. Pending application also stands disposed of being

infructuous.

(S.P.GARG) JUDGE APRIL 18, 2013 tr