Disposed

Smti. Shipra Dey v. the State of Assam and 3 Ors.

Gauhati HC6 Feb 2018WP(C)/1763/2014

Case brief

AI extract

What is this about?

The Court addressed a writ petition regarding a custodial death. Finding the suspect's detention illegal despite bailable offences and contradicting previous 'mistake of fact' reports, the Court discounted the police version of self-injury. It directed the trial Magistrate to act on the re-investigated report and awarded additional interim compensation of Rs. 2,00,000 alongside the earlier NHRC am

What did the court decide?

Direct trial Magistrate to pass order on Final Report; direct State to pay additional Rs. 2,00,000 interim compensation; direct DG Police to conclude departmental case.

Smti. Shipra Dey Vs the State of Assam and 3 Ors. — Writ and Judicial Review | Gauhati HC (2018)

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GAHC010007872014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1763/2014

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SMTI. SHIPRA DEY W/O MR. MANILAL DEY, BSNL COMPLEX, P.O. and P.S. HAFLONG, DIST- DIMA HASAO, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF HOME, GOVT. OF ASSAM, DISPUR, GHY-6

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2:THE DY. COMMISSIONER

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DIMA HASAO, HAFLONG P.O. HAFLONG, ASSAM

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3:THE SUPERINTENDENT OF POLICE DIMA HASAO, HAFLONG, P.O. HAFLONG ASSAM.

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4:SANGKHA SWARGIARY

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SUB INSPECTOR OF POLIE AND OFFICER IN CHARGE OF HAFLONG POLICE STATION, HAFLONG, DIMA HASAO, ASSAM

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5:THE DIRECTOR GENERAL OF POLICE

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ASSAM, ULUBARI, GUWAHATI-78100

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Advocate for the Petitioner : MR.A BHATTACHARYA

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 06-02-2018

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(Ujjal Bhuyan, J)

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Heard Mr. A. Bhattacharya and Mr. J. Sarma, learned counsel for the petitioner. Also heard Mr. S. P. Choudhury, learned Govt. Advocate, Assam.

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2. By filing this petition under Article 226 of the Constitution of India petitioner seeks a direction to the respondents for payment of Rs. 15,00,000/- as compensation for the custodial death of her only son, Liton Dey, on 29.03.2012 and initiation of criminal prosecution of the guilty police personnel of Haflong Police Station.

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3. Case of the petitioner is that on 28.03.2012, her son, Liton Dey, aged about 23 years, was coming from the petrol pump towards his house i.e. BSNL complex at Haflong at about 6:00 p.m. on a motor bike. While riding the motor bike, Liton Dey met with a minor self accident near the Rotary Point, Haflong whereafter he fell down from his bike on the road. He suffered minor injuries on his elbow and got up immediately. No one else was injured and no property was damaged. As Liton Dey was about to restart his bike, suddenly two police men came on a bike, stopped him and asked him to accompany them to the police station. Though Liton Dey protested as there could be no justifiable reason for him to be summoned to the police station, his protest was brushed aside and he was forcibly taken to the police station.

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4. When petitioner and her husband received information about the arrest of their son, they rushed to the Haflong Police Station at about 7:30 p.m. to enquire about the whereabouts of their son. They were told in the police station that Liton Dey was sent to the Civil Hospital for medical examination. At about 8:45 p.m. he was brought back to the Haflong Police Station from the Civil Hospital with handcuffs and was kept in the police lock

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up. Petitioner and her husband talked with their son and found him to be normal at that point of time. Though it appeared that Liton Dey was under the influence of liquor, he had control over himself. It came to light that a first information was lodged against Liton Dey before the Haflong Police Station by the police personnel which was registered as Haflong PS Case No. 22/2012 under Section 279 of the Indian Penal Code (IPC) read with Sections 177 and 185 of the Motor Vehicles Act, 1988.

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5. Though the petitioner and her husband pleaded before respondent No. 4, the Officerin-Charge of Haflong Police Station to release their son since the sections under which he was arrested were all bailable, respondent No. 4 did not listen to their pleas. Petitioner and her husband returned home at about 10:00 p.m.

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6. At about 11:30 p.m. that night, petitioner’s husband received a phone call from the Haflong Police Station stating that his son was in a serious condition for which he had to be hospitalized. When the petitioner and her husband rushed to the Civil Hospital, they found their son in a critical condition. They were in a state of disbelief because just about two hours earlier they had talked to their son, who appeared to be perfectly normal. Though respondent No. 4 had come to the Civil Hospital he did not answer the queries of the petitioner and her husband as to how their son was in such a critical condition. Petitioner and her husband also noticed several injury marks in the exposed portion of the body of their son.

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7. On the next morning at about 6:10 a.m. i.e. on 29.03.2012, Liton Dey expired in the hospital.

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8. It is contended that there was no justifiable reason to detain the deceased in the police station as no accident had occurred. The deceased had simply fallen down from his own motor bike and suffered minor injuries on his right elbow. Therefore, the police personnel had no business to compel the deceased to come to the Haflong Police Station and thereafter to register a police case against him. Even then, the sections under which the deceased was detained were all bailable; yet he was not allowed to go and instead kept in the police lock up. After medical examination in the Civil Hospital, Liton Dey was brought back

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to the police station with handcuffs like a criminal. Petitioner and her husband were informed at the dead of night that their son was critical and had to be hospitalized. Several injury marks were noticed on the body of the deceased. Ultimately, Liton Dey expired in the hospital in the next morning.

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9. Inquest report and post mortem examination of the deceased clearly revealed the untimely and unnatural death of the deceased.

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10. On 04.04.2012, petitioner lodged first information before the Haflong Police Station. After considerable delay and dilly-dallying, police registered Haflong PS Case No. 35/2014 under Sections 342/302/34 IPC.

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11. Deputy Commissioner, Dima Hasao had ordered magisterial enquiry on 30.03.2012. As per the report of the Magistrate, the deceased was wrongly arrested and kept in police custody under sections which were all bailable. Though his parents had gone to the police station to secure his release, he was not released. The accident for which the deceased was detained was a minor one and, that too, concerned the deceased only. Therefore, nonrelease of the deceased by the police was not justified.

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12. In so far Haflong PS Case No. 22/2012 relating to the so called accident committed by the deceased was concerned, police submitted final report on 29.10.2013 which was accepted by the Magistrate on 21.11.2012.

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13. Regarding Haflong PS Case No. 35/2012 registered on the basis of the first information lodged by the petitioner, shockingly a final report was submitted by the police on 06.12.2013. It was stated that the first information was lodged on mere suspicion and it was a “mistake of fact” that the deceased Liton Dey was tortured by the police personnel within the precincts of Haflong Police Station. However, Addl. District Magistrate, Dima Hasao by order dated 19.12.2013 did not accept the final report and ordered that the case be reinvestigated by a superior officer in the interest of justice.

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14. Though this order was passed on 19.12.2013 no follow up steps were taken by the respondents. It is in such circumstances that the present writ petition came to be filed by the petitioner, seeking the reliefs as indicated above.

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15. This Court by order dated 31.03.2014 had issued notice. Thereafter affidavits have been filed and exchanged. In his affidavit respondent No. 3 has admitted that on 28.03.2012 at about 9:00 p.m. Liton Dey was kept in Haflong Police Station custody by respondent No. 4 who was the officer-in-charge of Haflong Police Station. In so far the allegation of police torture while in custody is concerned, it is stated that the deceased had himself hit his head on the wall inside the lock up. After the order of the Addl. District Magistrate on 19.12.2013, the case was endorsed to Sri Anjan Pandit, Sub Divisional Police Officer, Lakhipur in the district of Cachar to complete the investigation as an independent Investigating Officer. At that stage investigation was underway. Respondent No. 3 also admitted that offences in respect of Haflong PS Case No. 22/2012 were bailable and respondent No. 4 could have released Liton Dey on bail.

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16. Respondent No. 4 in his affidavit has stated that Liton Dey while riding the motor cycle in high speed was under the influence of liquor and had met with an accident by hitting the Rotary Point located near the Dima Hasao Autonomous Council Office and injured his person. Police personnel on duty picked him up and took him to the Haflong Police Station alongwith the motor cycle for follow up action. He was sent for medical examination to the Civil Hospital whereafter he was brought back to the police station. At around 10:30 p.m. on the same night, he was found to be in an unconscious condition and was immediately shifted to the Haflong Civil Hospital. On 29.03.2012 at about 6:30 a.m. injured Liton Dey died in the Haflong Civil Hospital. On completion of inquest and post-mortem examination, the dead body was handed over to the guardians.

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In his affidavit, respondent No. 2 has stated that as per order of the Addl. District Magistrate dated 19.12.2013, Deputy Inspector General of Police (Southern Range), Silchar had re-endorsed the case to Sri Anjan Pandit for re-investigation which at that point of

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time, was under way.

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18. An affidavit has been filed on behalf of respondent No. 1 through Sri Ranjit Kumar Mahanta, Joint Secretary to the Govt. of Assam, Home & Political Department. It is stated that final progress report of Haflong PS Case No. 35/2012 was submitted by respondent No. 3 on 19.04.2017. It is further stated that subject matter of the case was already adjudicated by the National Human Rights Commission which had recommended to the Govt. of Assam to pay a sum of Rs.3,00,000/- to the next of kin of the deceased Liton Dey. The said amount has since been paid to the father of the deceased on 11.07.2017.

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19. Submissions made have been considered.

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20. Before we proceed further, it would be apposite to briefly deal with the various orders passed by this Court from time to time. However, most of these orders, i.e., orders dated 07.03.2017, 04.04.2017, 04.05.2017 and 06.06.2017 pertain to the monitoring of the re-investigation as per the order of the Addl. Deputy Commissioner dated 19.12.2013. Ultimately, on 10.08.2017, Sri D. K. Saikia, learned Addl. Advocate General, Assam had informed the Court that the re-investigation was completed whereafter Final Report No. 28/2017 was filed under the heading “mistake of fact”. Relevant portion of the order dated 10.08.2017 is extracted hereunder:-

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“ Heard Mr. J. Sharma, learned counsel for the petitioner and Mr. D.K. Saikia, learned Additional Advocate General, Assam.

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On 07.03.2017, the following order was passed:-

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“This petition has been filed by Smt Sipra Dey of Haflong in the district of Dima Hasao, seeking initiation of criminal proceeding against the erring officials of Haflong Police Station as well as payment of compensation for the alleged custodial death of her son, Liton Dey, on 29.03.2012.

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Without entering into any details at this stage of the proceeding, we notice that petitioner had lodged a first information before the Officer-In-Charge, Haflong Police Station, on 04.04.2012, regarding the death of her son, Liton Dey on 29.03.2012, following his detention in custody in the Haflong Police Station, in the evening of 28.03.2012. Such

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information was treated as First Information Report and on the basis of the same, Haflong PS Case No. 35 of 2012 was registered, under Sections 342/302/34 of the Indian Penal Code, 1860, corresponding to GR Case No. 60 of 2012. Thereafter, police submitted Final Report No. 99 of 2013, dated 06.12.2013, ruling out any foul play in the death of petitioner's son. Accordingly, the case was returned in the form of Final Report as a mistake of fact under Sections 342/302/34 of the Indian Penal Code, 1860.

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Additional District Magistrate, Dima Hasao, by his order dated 19.12.2013, did not accept the Final Report so submitted and ordered that the case be reinvestigated by a superior authority other than the present Investigating Officer.

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Learned counsel for the petitioner submits that though more than 3 (three) years have gone by since the aforesaid order was passed by the Additional District Magistrate, petitioner has not been informed anything about the progress made following re-investigation as ordered. He also submits that petitioner has not been informed as to who is the superior authority conducting the re-investigation. When we asked Mr Pegu, learned Government Advocate as to what has happened following re-investigation, he submits that as on date, he does not have any information.

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Faced with the above situation, we direct the Superintendent of Police, Dima Hasao, Haflong, to submit a status report in connection with Haflong PS Case No. 35 of 2012 following re-investigation by a superior authority in a sealed cover before the Court, through Mr G Pegu, learned Government Advocate, Assam, on the next date.

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List for further consideration on 04.04.2017.”

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Thereafter, on 04.04.2017, the following order was passed:-

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“ Today when the matter is called upon, Mr. G. Pegu, learned GA submits that he has not received instructions despite the above order being communicated to the Superintendent of Police, Dima Hasao, Haflong.

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Having regard to the seriousness of the issue and the fact that nothing has been done by the Superintendent of Police, Dima Hasao, Haflong since 19.12.2013 when the Final Report was rejected by the Magistrate ordering reinvestigation, we direct personal appearance of the Superintendent of Police, Dima Hasao, Haflong along with status report in connection with Haflong P.S. Case No. 35/2012 following reinvestigation carried out by the superior authority.

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Let the Superintendent of Police, Dima Hasao, Haflong appear before this

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court in person on 04.05.2017 at 10.30 am.”

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On 04.05.2017, Mr. Vivek Raj Singh, IPS, Superintendent of Police, Dima Hasao was present along with the status report in sealed cover. After opening the sealed cover and perusal of the status report, the following order was passed:-

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“ Pursuant to order dated 04.04.2017, Mr. Vivek Raj Singh, IPS, Superintendent of Police, Dima Hasao is present in person along with a status report in sealed cover which has been opened in the Court.

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At the outset, referring to the orders dated 17.03.2017 and 04.04.2017, he submits that status report was sent earlier by post and perhaps for the aforesaid reason, it could not be placed before the Court. He, therefore, seeks unconditional apology for the above.

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Today he submits that after order of the concerned Magistrate dated 19.12.2013, Deputy Inspector General of Police (Southern Region), Assam, Silchar entrusted Haflong PS Case No.35/2012 to Shri Anjan Pandit, APS, SDPO, Lakhipur to do re-investigation following which reinvestigation was carried out. Subsequently, on transfer of Shri Anjan Pandit, now Shri Gaurab Agarwal, present SDPO, Lakhipur is supervising the re-investigation. According to the SP, re-investigation is almost nearing completion and within a month or so, report under Section 173 Cr.PC would be submitted before the Magistrate.

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Submissions made by the SP have been taken note of.

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Explanation furnished by him is accepted.

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Let the re-investigation be carried out to its logical conclusion. Whatever be the outcome of the re-investigation, the same may be informed to the Court by way of status report in sealed cover on the next date.

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List this case again on 06.06.2017 on which date Mr. Vivek Raj Singh, IPS, Superintendent of Police, Dima Hasao district shall be present before the Court with the status report as above.”

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Thereafter, on 06.06.2007, Mr. Vivek Raj Singh, IPS was again present in terms of the previous order dated 04.05.2017. Based on his submission, the following order was passed:-

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“Mr. Vivek Raj Singh, IPS, Superintendent of Police, Dima Hasao is present in person in terms of order dated 04.05.2017.

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Referring to the order dated 04.05.2017, he submits that Sri Gaurab Agarwal, who is the Investigating Officer, had gone on leave and, while on leave, he had met with an accident and fractured his leg. As of

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now 21 days of leave has been sought for. However, he submits that based on the investigation carried out till date, he had prepared a report in terms of section 173 Cr.PC, which has also received approval of the DIG, Southern Range.

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That being the position, as and when Mr. Gaurab Agarwal rejoins his duties, the report under section 173 Cr.PC would be submitted before the Magistrate.

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In view of the submissions made, we defer the hearing of this case for two months.

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Mr. Singh, Superintendent of Police, Dima Hasao will ensure that all effective steps are taken as and when Mr. Agarwal rejoins duty.

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Personal appearance of Mr. Vivek Raj Singh, IPS, Superintendent of Police, Dima Hasao is dispensed with for the time being.

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List this case again for hearing on 10.08.2017.”

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Today when the matter is called upon, Mr. D.K. Saikia, learned Additional Advocate General, Assam has produced before us a letter dated 03.08.2017 addressed to him by the Superintendent of Police, Dima Hasao. Though the letter is a detailed and a long one, substance thereof is that after conclusion of the detailed investigation carried out by the Investigating Officer Shri Gaurav Kumar Agarwal, APS, SDPO, Lakhipur, Cachar, Superintendent of Police, Dima Hasao supervised the case and submitted final progress report to the Deputy Inspector General of Police (SR), Assam, Silchar. Thereafter, Deputy Inspector General of Police, accorded approval to return the case in the form of final report under the heading 'Mistake of Fact'. Accordingly, Investigating Officer of the case Shri Gaurav Agarwal submitted the case in final report as 'Mistake of Fact' vide Final Report No.28/2017.

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Mr. Saikia, learned Additional Advocate General, Assam submits on the basis of instruction that petitioner had moved Assam Human Rights Commission. Assam Human Rights Commission had passed an order for payment of compensation of rupees three lakhs to the petitioner which has since been paid by the Government.”

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21. As per the final report of the Superintendent of Police, Dima Hasao dated 19.04.2017, it is stated that there was no foul play on the part of the officer-in-charge of Haflong Police Station i.e. respondent No. 4 and other police personnel in so far death of Liton Dey is concerned who had died due to his inflicting injury on his head by hitting the wall of Haflong Police Station lock up while he was kept in police lock up. The first information was

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lodged only on suspicion. Therefore, the final report was submitted as a “mistake of fact”.

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The matter relating to custodial death of the deceased was brought to the notice of the National Human Rights Commission as alluded to hereinabove. National Human Rights Commission vide its order dated 06.04.2016 noted that the victim was arrested in an injured condition under Section 279 IPC read with Sections 177 and 185 of the Motor Vehicles Act, 1988 which were all bailable sections. Though the parents had come to the police station seeking release of the son, he was not released. Instead the boy was kept in the police lock up. National Human Rights Commission observed that had the boy been released by the police on bail as it was a bailable offence, perhaps he could have been saved. The offence for which he was arrested was a very minor incident. He neither caused injury to anyone nor any damage to property of anyone. National Human Rights Commission specifically stated that there was no evidence that the deceased was driving in a rash and negligent manner which could have endangered human life. It was also noted that respondent No. 4 was not telling the truth when he stated that he had decided to release the boy after he became normal; as per version of the doctor, the boy was absolutely normal. This was not a case where the deceased should have been kept in custody. The injury had occurred while he was in police custody. It was in such circumstances that the National Human Rights Commission held that it was a clear case of death of a person in police custody and a case of serious violation of human rights. Accordingly, National Human Rights Commission recommended payment of Rs. 3,00,000/- by way of monetary relief to the next of kin of the deceased Liton Dey.

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23. As per affidavit of respondent No. 1, the said amount has since been paid.

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24. There is another angle to this unfortunate incident. Petitioner had moved the State Police Accountability Commission, Assam alleging that her son was tortured by the police while in custody and that the tragedy could have been averted had her son been released on bail when she and her husband had visited the police station requesting respondent No. 4 to release him on bail. While observing that a proper investigation under

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the supervision of the CID would unravel the truth, Commission vide the order dated 29.12.2014 held that detention of the deceased in the police station was illegal and without the due process of law. Commission also noted and observed that the officer-in-charge had shown total lack of empathy towards the persons in distress. The conduct of the officer-incharge was found most reprehensible. The investigating officer had acted in a most irresponsible manner and made a mockery of the investigation by way of returning the case in a final report as “mistake of fact”. The investigation was carried out perfunctorily. Adverse observations were made against the officer supervising the investigation. Observing that it was a case of utter callousness and indifference of the police personnel concerned, it was held that the Police Head Quarters was definitely answerable for such lapse. State Police Accountability Commission also noted that though a departmental proceeding was drawn up against respondent No. 4 for negligence towards Government duty, most surprisingly the departmental proceeding was dropped on 26.07.2013 by the then Superintendent of Police, Dima Hasao by taking the view that since a criminal case was registered, there was no use in keeping the departmental proceeding pending. State Police Accountability Commission reiterated the legal position that criminal investigation and departmental proceeding operate in two different spheres and ordinarily departmental proceeding and criminal investigation or trial can proceed simultaneously. It is not the law that departmental proceeding should be dropped on the ground of pendency of criminal case. It was noted that the Superintendent of Police had acted in undue haste in closing the departmental proceeding. Immediately after closure of the departmental proceeding, respondent No. 4 was promoted vide order dated 31.10.2013. It was like rubbing salt to wound. In such circumstances, State Police Accountability Commission directed Assam Police Head Quarters to revoke the order of dropping of departmental proceeding and to re-initiate the departmental proceeding de novo against respondent No. 4 for his serious misconduct. It was also directed that enquiry be made to find out under what circumstances respondent No. 4 was promoted even when a criminal case was pending against him.

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25. Above being the position, when clear findings have been recorded by the National Human Rights Commission and State Police Accountability Commission, filing of Final

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Report No. 28 of 2017 on the same ground of “mistake of fact” which was not accepted by the trial Magistrate at the first instance and which has been adversely commented upon by the above two authorities, appears to be wholly untenable and unsustainable. This is a case of death of a young man in police custody. He was arrested for commission of an alleged offence which was bailable in nature. Despite request for bail by the parents, bail was denied thereby keeping the deceased in the police lock up. In the dead of night, the deceased suffered serious injuries while in police custody for which he had to be shifted to the Civil Hospital in a critical condition only to be declared dead early next morning. Respondent No. 4 has now come up with a totally unbelievable story that the deceased while in police lock up had banged his own head against the lock up wall resulting in severe head injury for which he had to be rushed to the Civil Hospital in the dead of night only to be declared dead the next morning. Such a version militates against common sense and cannot be accepted by any prudent person having regard to the surrounding circumstances.

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26. That being the position, we are firstly of the view that though the Final Report No. 28/2017 has been filed before the trial Magistrate at Haflong, it is a case fit for trial. Secondly, it being a case of custodial death with the National Human Rights Commission clearly holding that there was violation of human rights leading to the unfortunate death of a young man, a case for compensation is made out. Law is well settled that in case of violation of Article 21 of the Constitution of India, the constitutional courts can award compensation in the exercise of their public law remedy. However, such compensation would be of a palliative nature, leaving the affected person free to seek compensation under the private municipal law.

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27. Having regard to the above, we issue the following directions:-

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Learned trial Magistrate at Haflong shall pass appropriate order on the Final Report No. 28/2017 having regard to the observations and discussions made above.

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Petitioner or her husband shall appear before the learned Magistrate on 14.03.2018 at 10:30 a.m. whereafter necessary order shall be passed by the Magistrate.

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We direct that payment of Rs.3,00,000/- made to the petitioner as per recommendation of National Human Rights Commission be treated as interim compensation. We further direct respondent No. 1 to make additional payment of Rs. 2,00,000/- as further interim compensation to the petitioner or her husband. The said compensation shall be deposited by respondent No. 1 before the Registry of this Court within a period of 60 (sixty) days from the date of receipt of a certified copy of this order whereafter petitioner would be entitled to withdraw the same on proper identification.

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Petitioner or her husband would be at liberty to institute appropriate proceeding before the competent Civil Court seeking compensation for the custodial death of their son in addition to the interim compensation already paid and additional interim compensation directed to be paid.

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Since State Police Accountability Commission has already directed re-initiation of departmental proceeding against the erring police personnel, including respondent No. 4, de novo respondent No. 5 i.e. Director General of Police, Assam shall ensure that such departmental proceeding is taken to its logical conclusion.

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28. With the above directions, writ petition is disposed of.

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JUDGE JUDGE

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Comparing Assistant

Smti. Shipra Dey v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Smti. Shipra Dey v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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