Sushil Kumar vs State &Ors.
2020 Latest Caselaw 589 Del

$~62
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 29.01.2020

+      CRL.M.C. 4008/2010 and CRL.M.A. 19006/2010
       SUSHIL KUMAR                                      ..... Petitioner
                          Through:     Dr. L.S. Chaudhary, Mr. Ajay
                                       Chaudhary, Mr. Viresh Chaudhary,
                                       Mr. R. Tomar, Mr. Anurag Tomar
                                       and Mr. Paramvir Singh, Advs.
                          versus

       STATE & ORS.                                       ..... Respondents
                          Through:     Mr. Amit Chadha, APP for State with
                                       Insp. Ranjit Singh, 1st Battalion, Insp.
                                       Ashok Kumar, PS - I.P. Estate, ASI
                                       Ravinder Pal, 5th Battallion, ASI
                                       Rajender Singh (Retired) and HC
                                       Zafar Khan (Security)

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. By the instant petition, the petitioner seeks directions thereby to set

aside and quash the impugned order dated 08.12.2010 passed by the learned

Additional Sessions Judge, Dwarka Courts, New Delhi in C.R. No.

147/2010, titled as 'Sh. Rajinder Singh vs. The State & Another' and in the

result, the order dated 07.10.2010 passed by the learned Metropolitan

Magistrate directing registration of FIR be restored and the SHO, Police

Station - Dabri be directed to register the FIR against respondent Nos. 2 to 6

and to investigate in the same.

2. Facts of the case are that on 09.02.2009 at about 6.30 p.m., the

petitioner received a call from one Ajay Kumar @ Pawan regarding some

property business, who asked the petitioner to reach at Sagarpur Bus Stand.

Accordingly, the petitioner reached there at about 7.00 p.m., where

respondents No.2 to 5 were present and they boarded the petitioner and Ajay

Kumar @ Pawan in an Indica Car and brought them to police station Dhaula

Kuan, where they tied the legs and hands of the petitioner and laid him down

on the floor. They also put a pipe between the legs of the petitioner and gave

merciless beatings to him by kicks and sticks. After sometime, respondent

no.6 came and asked whether the petitioner has disclosed something or not?

On their refusal, the respondent No.6 also twisted the hands, legs and ears of

the petitioner and also gave beatings with stick. He threatened the petitioner

that either he should get arrested 10 persons or get 20 vehicles recovered

otherwise he will implicate the petitioner in false drug (brown sugar) case.

At about 11.00 p.m. at night, they brought a packet of brown sugar and

forcibly obtained the signatures of the petitioner on certain papers.

3. On the next day i.e. 10.02.2009, the respondents No.2 to 5 took the

petitioner and Ajay Kumar to Police Stations of Najafgarh, Dwarka, Uttam

Nagar and Bindapur. At Bindapur police station, there were about 50-60

persons gathered. The respondents No.2 & 4 were surrounded by the public.

They had to apologize before the public and release said Ajay Kumar @

Pawan. This all has happened in presence of the incharge of Police Station -

Bindapur and the entire episode was recorded by a press reporter. During

this period, petitioner was kept confined in said Indica Car by respondents

No.3 & 5. The respondent No.2 telephonically instructed them to remove the

vehicle and park it some other place. Accordingly, the vehicle was removed

and after sometime they brought the petitioner to police station Dhaula

Kuan, where they threatened him that either he should give them

Rs.50,000/- or they will implicate him in a false brown sugar case. After

negotiations, the amount was settled at Rs.30,000/-, out of which the

petitioner arranged Rs.20,000/- through his family members and gave them

to the respondent No.3 and said that the balance amount will be paid after

his release. The respondent No. 3 threatened the petitioner that in case the

balance amount is not paid or any action is taken by them against the

Respondents then they will implicate him in brown sugar case and he will

have to remain inside the jail atleast for 10 years. On 11.02.2009, the

petitioner was produced before the Court of concerned MM, falsely

implicating him in FIR No.405/08, under Section 379 IPC, P.S. Rajouri

Garden, Delhi and sent to judicial custody. On 19.02.2009, the petitioner

was released on bail by the concerned Metropolitan Magistrate.

4. The petitioner visited the senior officers and sought action against

respondents No.2 to 6, but no action was taken; hence, he made

representations dated 27.02.2009 in writing to the concerned DCP and

Commissioner of Police. When no action was taken, the petitioner again

made a representation dated 20.03.2009 to the Commissioner of Police,

National Human Rights Commission and other senior officers.

5. Having failed to get any response from any authority, the petitioner

filed a Complaint Case No.67/2009 on 13.04.2009 before the Court of

concerned Metropolitan Magistrate before Dwarka Courts, New Delhi.

Alongwith the complaint case, the petitioner also moved an application

under Section 156(3) Cr.P.C. seeking a direction to the S.H.O. P.S. Dabri to

register a case against the respondents No.2 to 6. Accordingly, learned

Metropolitan Magistrate sought a report from the police. The ACP filed the

report subsequently.

6. Further case of the petitioner is that respondent no. 4 met the

petitioner and threatened him that he is making complaints against the

respondents, now he will be implicated in a serious case so that he remain

inside the jail for 10 years. The petitioner immediately made a call to ICQ

number. A number of persons gathered there and respondent No.4 was

apprehended at the spot. The police personnel from Police Station - Dabri

came and respondent No.4 was taken to the police station, but later-on he

was let-off without any action. The petitioner made a representation dated

29.04.2009 to the concerned S.H.O. with copy to the higher police officers.

7. Learned Metropolitan Magistrate, vide order dated 07.10.2010,

allowed the application under Section 156(3) Cr.P.C. filed by the petitioner

and directed the S.H.O., Police Station - Dabri to register a case against the

respondents No.2 to 6 named in the complaint case and investigate the same.

8. Being aggrieved, the respondent No.5 challenged the aforesaid order

dated 07.10.2010 passed by the learned Metropolitan Magistrate directing

registration of FIR before the learned Additional Sessions Judge by way of

Criminal Revision No. 147/2010. However, the said Court vide ex-parte

order dated 11.10.2010, stayed the operation of the order dated 07.10.2010

passed by learned Metropolitan Magistrate and thereafter, vide order dated

08.12.2010, allowed the criminal revision preferred by the respondent No.5

and set aside the order dated 07.10.2010 passed by the Ld. MM and directed

the learned Metropolitan Magistrate to proceed under Chapter XV of Code

of Criminal Procedure by taking cognizance of complaint and recording

evidence of complainant.

9. Learned APP has opposed the present petition and submits that the

petitioner did not approach the concerned Police Station if anything had

happened with the petitioner. However, he directly approached the DCP

concerned and since nothing was there in the case, no action was taken by

the concerned Police Station. Moreover, the learned Sessions Judge vide

order dated 08.12.2010, while setting aside the order dated 07.10.2010

passed by the learned Metropolitan Magistrate, directed the learned

Metropolitan Magistrate to proceed under Chapter XV of Code of Criminal

Procedure by recording evidence of complainant.

10. He further submits that the petitioner is accused in case FIR No.

405/2008 registered at Police Station - Rajouri Garden instituted for the

offence punishable under Section 379 IPC. If the present petition is allowed,

then, however, the accused will be encouraged to level allegations against

the police officials. In that situation, it will be difficult for police officials to

book any culprit in a criminal case.

11. Fact remains that the petitioner has not sat idle at home, though he has

not approached the Police Station in writing, however, as stated in the

present petition, he approached the Police Station since no action was taken,

therefore, he made representation to the concerned Deputy Commission of

Police. Thereafter, since no action was taken, that he filed a petition under

Section 200 Cr.P.C. and application under Section 156(3) Cr.P.C. Said

application was considered by the learned Metropolitan Magistrate and vide

order dated 07.10.2010 directed the Police Station - Dabri to register case

against respondent Nos. 2 to 6.

12. Learned Additional Sessions Judge has failed to appreciate that there

are serious allegations against the accused persons who are police officials.

The investigation for the purpose for collecting evidence is must. Learned

Additional Sessions Judge also failed to appreciate that there have been

severe physical torture, extortion and demand and acceptance of bribe by the

respondent nos.2 to 6. Moreover, learned Metropolitan Magistrate has only

directed to register FIR and investigate the matter. It is subject matter of the

investigation whether some case is made out against respondent nos.2 to 6 or

not.

13. Since the case is of the year 2009 and we have entered in 2020, lot of

water has flown. If this Court directs the petitioner to lead evidence under

Section 200 Cr.P.C., it will be injustice on the part of the petitioner.

14. On the other hand, if this Court directs the concerned Police Station to

register FIR, in that eventuality the respondent Nos. 2 to 6, who are Police

Officers, they may be arrested, which will affect their service carrier.

Therefore, justice would be met if, I hereby direct the SHO, Dabri to comply

directions dated 07.10.2010 passed by learned Metropolitan Magistrate, and

thereafter, to investigate the case and file report before the concerned Court

as per the law. Accordingly, above mentioned SHO is directed to register

the FIR and case be transferred to Crime Branch, Delhi to investigate the

case and file a report accordingly.

15. It is made clear that no coercive steps shall be taken against the

respondent Nos. 2 to 6.

16. In view of the above directions, the petition is disposed of.

17. It is hereby made clear that the present matter shall be investigated by

an officer not below the rank of an Assistant Commissioner of Police.

18. The present petition stands disposed of accordingly. Pending

application also stands disposed of.

Order dasti under signatures of the Court Master.

(SURESH KUMAR KAIT) JUDGE

JANUARY 16, 2020 PB