Mohd. Husain vs State Of Delhi
2013 Latest Caselaw 1085 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (CRL.) NO.102 OF 2005

                                           Decided on : 5th March, 2013

MOHD. HUSAIN                                         ...... Petitioner
                          Through:   Mr. Shakeel Ahmed, Advocate.

                            Versus

STATE OF DELHI                                          ...... Respondent
             Through:                Ms. Charu Dalal, Advocate for
                                     Mr. Saleem Ahmed, ASC for the State.
                                     IO SI Vijay Pal Singh, P.S. Delhi Cantt.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner under Article 226 of

the Constitution of India read with Section 482 Cr.P.C. seeking payment

of compensation on account of the alleged custodial death of his son

Mohd. Khalid Hussain, aged 21 years, in police custody.

2. Briefly stated, the facts as alleged in the petition are that the

petitioner's son was employed as a civilian pump operator in Subroto

Park, Delhi Cantt and in spare time, he was alleged to be working as a

Caddy in the Golf Club, Dhaula Kuan, Delhi Cantt. Petitioner's elder

daughter, Sajida Parveen used to work in the house of one Wing

Commander Johri as a domestic servant. It is stated that Sajida used to

cook food at his house but after passing her 12th standard examination,

she started running her beauty parlour because of which, she stopped

working at the residence of Wing Commander Johri as a domestic

servant. It is alleged that this was not liked by the Wing Commander,

who contacted the parents of Sajida, namely, the petitioner and his wife

and asked them that their daughter Sajida should continue to work at his

residence. It is further stated that the Wing Commander had allegedly

also advanced threats that in case, she does not work at the residence of

the Wing Commander then their family would face dire consequences.

When Sajida refused to work at the Wing Commander's house, then he

destroyed the beauty parlour run by her, through one corporal Bimal

Pandey and others on 25.10.1998. The petitioner's daughter is alleged to

have lodged a report with the police and also sent a letter to the concerned

ACP on 28.10.1998 regarding this incident but no FIR was registered.

3. It is alleged in the petition that on 3.11.1998 at about 4 p.m.

corporal Bimal Pandey along with one Vinod Shukla and a police

constable by the name of Devender came to the house of the petitioner at

Quarter No.41, Subroto Park, Delhi Cantt and took Mohd. Khalid

Hussain, son of the present petitioner, to the pump house of Subroto Park.

It is alleged that Mohd. Khalid Hussain was beaten mercilessly by

Corporal Bimal Pandey and his associates and later on, he was taken into

custody by the police officials. On the next day, that is, on 4.11.1998, the

petitioner along with his wife and daughter went to the police station to

bring Mohd. Khalid Hussain back whereupon they learnt that their son

had received some gunshot injuries and was admitted in Safdarjung

Hospital. On reaching Safdarjung Hospital, they learnt that Mohd.

Khalid Hussain had succumbed to the gunshot injuries and his dead body

was lying in the Mortuary of the hospital. It is alleged that the body of

the deceased, Mohd. Khalid Hussain, was handed over to the petitioner

and their relatives on 5.11.1998 after conducting postmortem and an FIR

No.467/1998, under Section 304/308 IPC was also registered by Police

Station Delhi Cantt on the false allegation that Mohd. Khalid Hussain

along with one more person had broken the window of the pump house

during the intervening night of 3.11.1998 and 4.11.1998 and when two

persons challenged them, they started running away whereupon Corporal

Bimal Pandey fired on both of them because of which Mohd. Khalid

Hussain died while as his other accomplice received gunshot injury. On

the basis of these facts, it is alleged that the petitioner's son Mohd. Khalid

Hussain was picked up by the police and since he died in the police

custody, therefore, the police must be directed to pay compensation under

public law in terms of the string of authorities of the Apex Court which

are as under :-

Rudul Shah vs. State of Bihar & Anr.; AIR 1983 SC 1086;

Nilabati Behera vs. State of Orissa & Ors.; AIR 1993 SC 1960; and

Sube Singh vs. State of Haryana & Ors.; AIR 2006 SC 1117.

4. I have heard the learned counsel for the petitioner and have also

gone through the record. I feel that no amount of compensation is liable

to be paid by the respondents as the case involves disputed questions of

fact. The facts as alleged in the petition are against the record. First of

all, the main contention of the petitioner is that his son Mohd. Khalid

Hussain was picked up by three persons, namely, Corporal Bimal Pandey,

his associate Vinod Shukla and Constable Devender Kumar on 3.11.1998.

It is alleged that he was taken to the pump house where he was beaten

mercilessly and on the next date, he died in Safarjung Hospital with a

gunshot wound. It may be pertinent here to mention that it is the

admitted case of the petitioner that there is an FIR No.467 of 1998 which

is registered under Section 304 and 308 IPC. If one sees the contents of

this FIR, they are practically opposite to the facts narrated by the

petitioner in the petition. This FIR has been registered at the instance of

one Vicky, who is an associate of the deceased, Mohd. Khalid Hussain.

He has stated in his FIR that on 3.11.1998, he along with deceased Mohd.

Khalid Hussain had gone to see a movie in Delhi Cantt area and after

seeing the movie, they went to the market in Delhi Cantt area itself and

since it was midnight, they went to the pump house and slept there. Early

morning on 4.11.1998, Corporal Bimal Pandey and one of his associate

noticed some strangers sleeping in the pump house and they were picked

up by both of them. The deceased and Vicky were asked to accompany

these two persons of Air Force, who were on guard duty in and around

the area. While as Bimal Pandey continued to accompany these two

persons, namely, Vicky and Mohd. Khalid Hussain for taking them to

guard room, his other associate left the place with a view to get a jeep so

that these two fellows could be transported to the guard room early. It is

at this stage when Corporal Bimal Pandey was alone accompanying these

two boys when Vicky states that Mohd. Khalid Hussain asked him to run.

It is at this stage, when they started running that Corporal Bimal Pandey

fired at both of them from his service revolver. Both of them got injured

as a consequence of this firing. They were immobilized and taken to

Safdarjung Hospital for the purpose of treatment by Corporal Bimal

Pandey, who was subsequently arrested by the local police but his

custody was handed over to the Air Force in terms of the Section 45 of

the Cr.P.C. for the purpose of trial/Court Martial. So far as these two

injured Mohd. Khalid Hussain and his associate Vicky are concerned,

though Vicky survived but Mohd. Khalid Hussain succumbed to the

gunshot wound and died. There is absolutely no mention in this FIR by

Vicky that they were ever picked up by Corporal Bimal Pandey of the Air

Force or that any constable by the name of Devender was accompanying

them. Therefore, this is a case where the Corporal Bimal Pandey was on

duty. Some strangers had entered into the sensitive area of pump house

and Corporal Bimal Pandey was well within his right to check the

antecedents of these intruders and in this process, when Mohd. Khalid

Hussain/victim and his associate Vicky started running, he had to take a

preventive action by firing at these two fellows so as to immobilize them.

If this is the factual matrix, which is contemporaneously recorded in the

FIR, it is totally doubtful or a disputed question of fact that the

petitioner's son died in police custody. The petitioner ought to establish

in a civil court as to whether Mohd. Khalid Hussain was picked up by the

police or not. On the contrary the petitioner has tried to give it a different

colour with a view to make quick money on account of his own misery,

i.e. the loss of young life of his son. This cannot be permitted to be done.

Therefore, there is no correctness or truthfulness in the story of custodial

death of the son of the petitioner as is sought to be projected by the

petitioner.

5. There is another hurdle which comes in the way of the petitioner to

get the relief of compensation on account of the custodial death of his

son. It is that the petitioner earlier had filed a writ petition under Article

32 of the Constitution of India bearing No.216/2004 before the Supreme

Court claiming similar relief including the damages under public law.

This petition was permitted to be withdrawn by the petitioner on

1.11.2004 by the Supreme Court with liberty to approach such

appropriate forum as may be permissible in law. The only appropriate

remedy which was permissible and available to the petitioner in such a

contingency after withdrawal of the writ petition from the Supreme Court

to establish his son's custodial death was to file a civil suit claiming

damages and prove the disputed questions of fact as to whether the

petitioner was picked up by police or not. On the contrary, the petitioner

after withdrawing the petition under Article 32 of the Constitution of

India has not only filed the present writ petition but has also chosen to

repeat the same averments in extenso.

6. The powers of the Apex Court and the High Court under Article 32

and 226 of the Constitution of India are at pari materia except that the

power under Article 226 is slightly wider inasmuch, apart from writ, any

other appropriate remedy or orders could be issued by the High Court

while as the Apex Court has the power to issue only five writs which are

permissible under the law. This is de hors the fact that the Supreme

Court is superior then the High Court. Moreover, once the petitioner had

filed a writ petition under Article 32 of the Constitution of India and the

same was withdrawn with liberty to seek appropriate remedy then the

only appropriate remedy which was available to the petitioner was to file

a suit to prove the disputed questions of fact. The petitioner, after

withdrawal of the writ petition filed under Article 32 of the Constitution

of India, could not have filed a writ petition under Article 226 of the

Constitution of India because that is not permissible as both the forums

are enjoying the same power.

7. So far as the judgments of the Apex Court which have been relied

upon by the petitioner starting from Rudul Shah's case (supra) are

concerned, there is no dispute that in public law a party or a victim may

be entitled to compensation but that is only when there is no disputed

questions of fact, unlike as in the present case where the factum of the

petitioner's son having died in police custody itself is questionable.

8. For the reasons mentioned above, I feel that the writ petition filed

by the petitioner raises disputed questions of fact and is totally

misconceived, therefore, the same deserves to be dismissed. Ordered

accordingly.

V.K. SHALI, J.

MARCH 05, 2013 'AA'