SMT. SUNITA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) BY means of this writ petition, the petitioners have sought writ in the nature of mandamus commanding the respondents no. 1 to 3 to register a criminal case against the Station Officer, Police Station Khatima and other erring police officials, and investigate into custodial death of Arjun Singh, who allegedly died in the custody of Khatima Police on 09.06.2006. Heard learned counsel for the parties.

(2.) BRIEF facts of the case, as narrated in the writ petition, are that Arjun Singh (deceased), aged 25 years, son of Bhupal Singh, Resident of Village Chakarpur, Police Station Khatima, was brother of petitioner no. 1 Sunita and son of petitioner no. 2 Haripriya Devi. It is stated in the writ petition that on 07.06.2006, Police Constable Sundar Singh (respondent no. 7) came to the house of Arjun Singh and took him to Police Station in connection with investigation of a case relating to offence punishable under Section 306 I.P.C. It is further stated in the writ petition that on 08.06.2006, petitioner no. 2 Haripriya Devi, mother of Arjun Singh (deceased), at about 7 p.m. visited Police Station and met her son, and by then the deceased was hale and hearty. It is alleged in the writ petition that in the intervening night of 8th/9th June 2006, Arjun Singh was tortured in the Police custody in Police Station Khatima and consequently died on 09.06.2006. The deceased was taken to District Hospital, Rudrapur, Udham Singh Nagar, but died on his way to the Hospital. Thereafter, postmortem examination of the dead body was conducted. Petitioners' case is that meanwhile on 09.06.2006, they were given telephonic information about the fact that condition of Arjun Singh was serious. On which, they came to Khatima and accompanied the deceased on his way to District Hospital, Rudrapur. It is alleged in the writ petition that the incident of torture by Police was witnessed by Dhyan Singh, who happened to be at the Police Station in connection with same crime relating to offence punishable under Section 306 I.P.C. It is stated in Para 7 of the writ petition that on 10.06.2006, when the dead body was handed over to the petitioners for cremation, they saw injuries on the body of the deceased. On 11.06.2006, petitioners made a report (copy annexure 3 to the writ petition) to the District Magistrate, Udham Singh Nagar, requesting that impartial inquiry by C.B.C.I.D. be made against the guilty police officials who are responsible for torturing the deceased and thereby causing his death. It appears that on said application an inquiry was ordered to be done by the Magistrate. The Sub Divisional Magistrate, Khatima, after inquiry submitted his report on 26.10.2006 to the District Magistrate (copy of which is annexed as annexure CA -13 to the counter affidavit filed on behalf of the respondents), in which a conclusion was given that the deceased has not died on account of torture by Police. However, it is observed by the Magistrate that after the viscera report is received the cause of death may be ascertained. In Para 11 of the writ petition it is stated that to save the skin from the clutches of law, Police got registered a Case Crime No. 1857 of 2006 against Arjun Singh (deceased), under Section 34 of Police Act and have shown him released on bail on 08.06.2006. Alleging the violation of Human Rights this writ petition was filed seeking the mandamus commanding the respondents no. 1 to 3 to register the criminal case against the erring police officials of Khatima for the custodial death of Arjun Singh on 09.06.2006.

(3.) HAVING heard learned counsel for the parties and after going through the affidavits exchanged by the parties we are of the view that prima facie, followings points create doubt as to the defence taken by the respondents claiming that the Arjun Singh has not died in the custody : -