Bharti vs State Of Uttarakhand And Others
2021 Latest Caselaw 2437 UK

       IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                     Writ Petition (Criminal) No. 924 of 2021

Bharti                                                      ...........Petitioner

                                       Vs.

State of Uttarakhand and others                             .......Respondents

Present:

Mr. Sanjay Kumar, Advocate for the petitioner. Mr. Lalit Miglani, A.G.A. with Ms. Lata Negi, Brief Holder for the State/respondent nos.1 to 3.

Mr. Sandeep Tandon, Standing Counsel for the CBI/respondent no.4.

Hon'ble Ravindra Maithani, J

Learned State counsel has filed a detailed report and

produced documents. But the postmortem report is not legible. Let a typed

copy of it be filed by tomorrow.

2. The applicant, according to the report was admitted in the

jail, but he received certain injuries and shifted to hospital. The question

is:-

(i) Whether any medical examination of the deceased was

done soon after his admission in the hospital. If so, where is

that medical examination report? Let it also be filed by

tomorrow.

3. The deceased sustained injuries when he was in the judicial custody

in Sub-Jail Haldwani, District Nainital. The allegations are against the

guards of the jail.

4. It is the case of the petitioner that she approached at various

levels in police department to get her report lodged. When she failed, she

approached Secretary, District Legal Services Authority, Nainital, who, on

22.03.2021, forwarded the report given by the petitioner to the SSP,

Nainitial. The SSP Nainital replied to the Secretary, District Legal

Services Authority, Nainital on 05.04.2021. The copy of letter has been

filed by the learned State counsel .The SSP, Nainital refused to lodge the

FIR on the ground that Magistrate enquiry is underway.

5. General rule is that in a cognizable offence, FIR should be

lodged. Enquiry is permissible in certain cases as laid down by the

Hon'ble Supreme Court in the case of Lalita Kumari vs. Government of

Uttar Pradesh, (2014) 2 SCC 1.

6. Cases of custodial death, in fact, shocks the conscience of a

civic society. At this stage this Court refrains to cite the laws and the

guidelines given by the Hon'ble Supreme Court with regard to the

custodial deaths matters.

7. In the case of D.K. Basu vs. State of Bengal and others,

(1997) 1 SCC 416, and in the case of D.K. Basu vs. State of West Bengal

and others, (2015) 8 SCC 744, guidelines were laid down with regard to

custodial violence. The atrocities in prisons again gain attention of the

Hon'ble Supreme Court in the case of Re-Inhuman Conditions in 1382

Prisons, (2017)10 SCC 658, there also directions were given so as to

minimize the chances of custodial violence, but these would be discussed

at a later stage, if required. The Court wonders as to why FIR was not

lodged by the SSP, Nainital despite a request having been received to take

appropriate action on the application of the petitioner, which was

forwarded to him by the Secretary, District Legal Services Authority,

Nainital.

8. Before the Court proceeds to pass any order with regard to

the conduct and sensitivity of SSP, Nainital to deal such issues, the Court

would like to give an opportunity to SSP, Nainital to submit the following

information:-

1. Under what provision of law the Magisterial inquiry

was being conducted?

2. Which provision of law bars lodging of FIR in the

case of allegations of custodial death during

pendency of Magisterial inquiry?

3. Under what provision of law, the SSP, Nainital got

inquiry conducted from CO, Haldwani?

4. Did CO, Haldwani record the statement of the Doctor

who observed injuries on the person of the deceased?

5. Did CO, Haldwani recorded the statement of the

Doctor with regard to the nature of injuries etc.?

6. How it was considered appropriate and lawful by the

SSP, Nainital to get an inquiry conducted through

CO, Police when Magisterial inquiry was already

underway and when the SSP, Nainital declined to

lodge the FIR on the ground that the Magisterial

inquiry is underway?

7. What is the response of the Police Constables

Stationed at Kotwali Haldwani on 15.03.2021, from

whom, the CO Haldwani sought explanation with

regard to receipt of the report from the petitioner?

9. The SSP, Nainital shall submit his response on or before

20.07.2021. A copy shall be shared with learned counsel for the petitioner.

10. Learned State counsel shall also inform the Court as to what

happened of the installation of CCTV cameras in all the prisons of the

country as directed by Hon'ble Supreme Court in the case of D.K. Basu

vs. State of West Bengal and others, (2015) 8 SCC 744. This judgment

was pronounced on 24.07.2015 and the Hon'ble Court on this aspect

directed as hereunder:-

"38.5. The State Governments shall take steps to install CCTV cameras in all the prisons in their respective States, within a period of one year from today but not later than two years.

11. Learned State counsel may, if required seek response from

Home Department, State of Uttarakhand.

12. List this matter for hearing on 22.07.2021 as a first case.

(Ravindra Maithani, J.) 15.07.2021 Sanjay