Jharkhand High Court

Shamim Akhtar vs The State Of Jharkhand And Others on 24 August, 2023

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 432 of 2017

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      Shamim Akhtar                                     .... Petitioner
                               --   Versus       --
      The State of Jharkhand and Others                 .... Respondents
                                     With
                             W.P.(Cr.) No. 400 of 2017
                                       ----
      1.Shamim Akhtar
      2.Obaid-ur-Rahman                                 .... Petitioners
                               --   Versus       --
      The State of Jharkhand and Others                 .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioner         :-   Mr. A. Allam, Senior Advocate
       For the State              :-   Mr. Sahil, Advocate
       For Respondent No.4        :-   Mr. Abhay Kumar Mishra, Advocate
                                       [in W.P.Cr.No.400 of 2017]
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12/24.08.2023      Heard Mr. A. Allam, the learned Senior counsel appearing on

behalf of the petitioners, Mr. Sahil, the learned counsel for the

respondent State in both the cases and Mr. Abhay Kumar Mishra, the

learned counsel for the respondent no.4 in W.P.(Cr.) No.400 of 2017.

2. In W.P.(Cr.) 432 of 2017, the prayer is made for registering

the case against the respondent nos.4 to 7 for maltreatment and torture

done in police custody on the allegedly made accused person in Pakur

(T) P.S. Case No.86 of 2017, corresponding to G.R.Case No.393 of 2017,

pending in the court of learned Chief Judicial Magistrate, Pakur. The

prayer is also made for appropriate direction for conducting enquiry in

the alleged maltreatment and torture done by the police.

3. In W.P.(Cr.) No.400 of 2017, the prayer is made for proper

investigation of Pakur (Nagar) P.S.Case No.86 of 2017, corresponding to

G.R. Case No.393 of 2017.

4. In W.P.(Cr.) No.432 of 2017, the case was registered

alleging therein that it is stated that one Hisabi Roy who was accused of

spreading false and malicious news inciting majority community against

the minorities in social media showing incident of arson against the

muslim community by saying that they should be taught lesson as that

has happened in Giridih and also some other inflammatory language

were used to incite hatred against two communities. The complainant

was also lodged against him. On 30.6.2017 one Abdul Hannan resident of

Pakur district lodged complaint against Hisabi Roy for his inflammatory

statement posted in social media with Pakur Town police under section

153A and 295A of IPC and under section 66 and 66A of Information

Technology Act. The police took up investigation and surprisingly

Superintendent of Police, Pakur in his press conference conducted on

04.7.2017 has given clean chit to Hisabi Roy. Against the said action of

the police general public planned a peaceful protest to give one

memorandum to conduct free and fair investigation in the matter against

Hisabi Roy and approached local leadership of the popular front of India

in Pakur Town (being social organization and working for marginalized

section of the society) PFI leadership consented the same and on

5.7.2017 at about 12.00 p.m. a peaceful protest rally from Gandhi Chowk

to Town Police Station was taken out in order to handover a

memorandum to the station house officer to conduct free and fair

investigation. Rally started at about 12.00 p.m. from the scheduled place,

police party was present at the rally point and gradually when people

gathered that time police arrested 62 persons and started taking them to

police station on foot, seeing this 500 to 550 people gathered there and

followed them to police station, by that time SHO of Pakur Town Police

Deputy Superintendent of Police and SDM were present on the spot.

Police forcefully took 65 persons to the police station and started beating

peaceful protestors.

Further 65 persons were detained and put them in police

lock up for the whole night thereafter all of them were beaten black and

blue in the police lock up. Out of 65 protestors 43 were made accused in

FIR in Pakur P.S.Case No.86 of 2017 in custody. But the unfortunate state

of affair was that the police officials high in their rank have given a false

and concocted medical report of only 2 persons of 43 F.I.R named

accused persons.

5. In W.P.(Cr.) No.400 of 2017, short facts of the case, in nut

shell, is that there were several cases of lynching incident in and around

the State of Jharkhand and also other parts in the territory of India due

to which the members of minority community were targeted and lynched

up to death. That on 29.6.2007 an screenshot of whattsapp chat

surfaced believing to be from the telephone number 9572150411

belonging to a local BJP leader namely Shri Hisabi Roy and the recipient

replied three posts and in this post the person believe to be Hisabi Roy

replied and the instant message was spread in Pakur town which created

panic amongst the minority community on 30.06.2017 due to which an

informant namely Abdul Hannan of Pakur District lodged a complaint

against Hisabi Roy for his inflammatory statement in social media, which

was lodged as Pakur P.S.Case No.79 of 2017 under section 153A, 295A of

I.P.C and section 66 and 66A of the Information Technology Act. The

police toop up the investigation of the entire case but unfortunately the

S.P. Pakur became party in this case. His attitude was different and

partial with the majority community and called a press conference on

4.7.2017 in his office at Pakur and gave clean chit to Hisabi Roy by giving

the statement that his whattsapp account under which controversial

message had been spread has been misused by some other person, so

entire matter was hush up at the instance of S.P, Pakur and due to which

the members of minority community were highly aggrieved.

6. Mr. A. Allam, the learned Senior counsel appearing on

behalf of the petitioners submits that the people in peaceful procession

were moving without any arms and lathi of Popular Front of India, a

registered society under the Societies Registration Act of which the

petitioners are the members. He submits that during procession they

caught hold by the police officials and they tried to hand over the

memorandum demand to the police officials for fair investigation against

Hisabi Roy but all were taken in the police station who were around 65 in

number and most of them were students but the police implanted arms,

lathi etc. He submits that all the 65 persons were arrested and submits

that however about 100-150 persons were followed them to the police

but they were dispersed by the police and 65 persons were taken into

custody and they were tortured by the police. He submits that there were

mob lynching cases in the district of Ramgarh, Giridih, Latehar and

Saraikella, however, he submits that the action has been taken and some

persons have also been convicted. In this background he submits that in

view of the allegations, the life, liberty and dignity of the petitioners have

been violated which is against the mandate of Constitution of India. He

submits that in view of this fact, proper enquiry may kindly be directed.

7. On the other hand, Mr. Sahil, the learned counsel appearing

for the respondent State submits that police has received the information

that members of Popular Front of India are turning out anger rally in the

direction of State President Abdul Khadir under the leadership of local

Vice President, Anzala Sheikh, Ex-Secretary, Habibur Rahman, State

General Secretary Abdul Wadood, State Secretary, Shamim Akhtar who is

the petitioner in both the cases and Abdul Salam on the issue of cow

slaughtering ban on RSS and arresting of Hisabi Roy etc for which several

meetings have been organized in different mosque and madarsa of Pakur

town and nearby area and in view of that the police along with the

Magistrate moved towards Ambedkar Chowk at about 11.45 p.m as

information was there as a large number of PFI members are coming

from Gandhi Chowk armed with bamboo, sabal and knife and they are

giving slogans and said was examined by the high officials of the district

and in this exercise Sub Divisional Police Officer and Police Inspector of

Amrapara and Maheshpur, officer incharge of Pakur (M) Police station

and Malpahari O.P. and several police officers posted on law and order

reached near Pakur Town police station and again all of them tried to

pursuade the members of the P.F.I but they reached near the main gate

of Pakur Town police station and the persons associated with the

procession were very furious and arrogant and they did not ready to

listen the advice of the officers and they sat on the main road by giving

hot and inciting slogans and blocked the road consequent upon which

traffic fully disrupted and inspite of the several request made by the

officers they have not left the place and on the excited speech, they

started abusing the police personnel by pelting the stone upon the police

persons to which the Sub Divisional Police Officer and other police

officers including the press reporter became injured. The mob tried to

snatch arms from the officer incharge of Pakur(M) police station and

other police force and thereafter he considering the seriousness of the

situation the Magistrate ordered to issue simple force and further

direction was given to arrest the indignated and uncontrolled members of

the P.F.I. He submits that on this background the investigation concluded

and final form has been submitted and some of the persons have already

been convicted. However, in the case relating to Pakur (T) P.S. Case

No.86 of 2017 investigation is completed and charge sheet has been

submitted against 43 accused and the trial is going. He submits that so

far as Pakur Muffasil P.S.Case No.87 of 2019 is concerned, the charge

sheet has been submitted and the trial is also concluded and one of the

accused has already been convicted arising out of Pakur Muffasil P.S.Case

No.87 of 2019 and for the rest of the accused the trial is going on.

8. Mr. Abhay Kumar Mishra, the learned counsel for the

respondent no.4 submits that he has filed the counter affidavit in

W.P.(Cr.) No.400 of 2017 and submits that the judgment dated

14.06.2023 whereby one of the accused Hanjela Sheikh has been

convicted which is being disputed by Mr. Allam, the learned Senior

counsel appearing on behalf of the petitioners.

9. In view of the above submission of the learned counsel for

the parties, the Court has gone through the contents of the FIR in both

the cases and finds that there are allegation of moving along with a large

number of members in procession. It appears that the advice of the

district administration was not adhered by them and they indulged in war

with the administration and some of the police officers with press

reporter have received the injury. Thus, from the record the argument

advanced by the learned Senior counsel for the petitioners is not correct.

If a peaceful procession is there, there was no question of such action on

behalf of the accused persons. The photographs annexed with the

counter affidavit filed by respondent no.4 at page 69 onwards, it appears

that the police officials have received the injury and the photographs

further suggest that the police officers were trying to stop them to move

further. Prima facie, it appears that they were indulged in violence with

the police. There is no doubt that it is not only the responsibility of the

investigating agency as well as that off course of citizen to ensure that

investigation is fair and does not in any way hamper the freedom of any

individual except in accordance with law. In such type of cases, for mob

violence and crime by self-appointed keepers of public morality

terrorizing common man without legal sanction and causing loss of life

and destruction of property, the Hon'ble Supreme Court in the case of

"Kodungallur Film Society and others Vs. Union of India &

Others" reported in (2018) 10 SCC 713 issued certain guidelines of

extensive guidelines in the nature of preventive remedial and punitive

measures to curb incidents of mob lynching and vigilantism as set out in

the case of "Tehseen S. Poonawalla Vs. Union of India" reported in

(2018) 9 SCC 501 wherein para-40 and 41, the following guidelines

were issued.

"40. In view of the aforesaid, we proceed to issue the following guidelines:

A. Preventive Measures 40.1. The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news. 40.2. The State Governments shall forthwith identify districts, sub-divisions and/or villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today's fast world of data collection. 40.3. The Secretary, Home Department of the States concerned shall issue directives/advisories to the Nodal Officers of the districts concerned for ensuring that the officers incharge of the police stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

40.4. The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the 9 district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

40.5. The Director General of Police/the Secretary, Home Department of the States concerned shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district coordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

40.6. It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

40.7. The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law-enforcement agencies and by involving all the stakeholders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.

40.8. The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

40.9. The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police Department of the States that lynching and mob violence of any kind shall invite serious consequence under the law.

40.10. It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

40.11. The police shall cause to register FIR under Section 153-A IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.

40.12. The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken. B. Remedial Measures 40.13. Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of 10 IPC and/or other provisions of law. 40.14. It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith

intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

40.15. Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty-bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

40.16. The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357-A CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

40.17. The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day-to-day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial. 40.18. To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC. 40.19. The courts trying the cases of mob violence and lynching may, on application by a witness or by the Public Prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness. 40.20. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.

40.21. The victim(s) or the next of kin of the deceased in

cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987. C. Punitive Measures 40.22. Wherever it is found that a police officer or an officer of the district administration has failed to comply with the 11 aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.

40.23. In terms of the ruling of this Court in Arumugam Servai v. State of T.N. 25, the States are directed to take disciplinary action against the officials concerned if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

41. The measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. Reports of compliance be filed within the said period before the Registry of this Court."

10. Mob lynching or mob violence is one of the worst forms of

crime committed by a group of people in a locality without any

botheration of its consequence. According to them there must be various

causes or reasons which may not be just or legal, on the basis of which

such said crime is committed by them, out of which one is commonly or

generally said to be due to delay in delivery of justice or the

administration of justice. This is serious concern for the entire society

including the Courts.

11. In view of the above, the Court finds that one of the

accused has already been convicted looking into the judgment brought

on record by way of counter affidavit filed by the respondent no.4 in

W.P.(Cr.) No.400 of 2017, the Trial No.684 of 2023, G.R. No.120 of 2020