PREMILABEN R JAISWAL Vs. B M JADEJA

JUDGEMENT

(1.) THE petitioner, a widow, along with her three children, has approached this court under Art. 226 of the Constitution and section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code")after serving a written complaint upon the Police Commissioner, vadodara in respect of custodial death of her husband on 17-9-1994 at around 7. 00 p. m. after being picked up from their house at around 4. 00 p. m. on 16-9-1994. According to the petition, the husband of petitioner No. 1 and father of the other petitioners was aged 42 years when, on 16-9-1994 at around 16. 00 hours, several police personnel led by respondent No. 4, the police Sub-Inspector, ordered him to go with them to the police station. She and her husband informed respondent No. 4 about his illness at that time, but he was taken to the police station and detained under Section 151 of the Code. She afterwards learnt from the persons who were present in the police station that the detainee had requested for medical treatment when he was produced before respondent No. 1, the Police Inspector, but not only that medical treatment was denied but his requests to call for medicines from his home were also turned down. He was kept with more than ten other accused persons in a very small room and tortured physically as well as mentally, according to the averments. Ultimately, he died because of fist blows and injuries inflicted upon him by the respondents and the post mortem report revealed several ante mortem minor injuries even as the cause of death was kept pending for histopathological report. Thus, the deceased succumbed to custodial violence, according to the petitioner, and the applications made by the petitioner to several authorities, including the Hon'ble Chief minister of the State, resulted into an inquiry being ordered by the Collector. It is averred that the victim was earning about rs. 8,000/- to 10,000/- a month from his business of flour mill and grocery shop and he was the sole bread winner for the family. After some time, when petitioner No. 1 enquired about the outcome of the investigation or enquiry, she was informed that it was not completed for one or the other reason and she being a housewife and a widow belonging to Jaiswal community, she was not in a position to pursue the matter with the authorities. On these broad averments, the petitioners have prayed for a direction to hold an independent investigation and to pay compensation as may be deemed proper in the circumstances of the case.

(2.) IT was noticed that, during the course of the present proceedings, a statement was made by learned A. P. P. that inquiry in respect of death of the husband of petitioner no. 1 was entrusted to Sub-Divisional Magistrate who had submitted his report on 31-7-1998 and that a comprehensive affidavit-in-reply shall be filed. Thereafter, without any meaningful order, the hearing was adjourned from time to time, no one appeared for respondent Nos. 1 and 8 on 12-1-2007 and learned A. P. P. Mr. S. S. Patel submitted that affidavits of some of the respondents were filed in the Court at pages 30 to 83 which were not really found on the record. Therefore, learned A. P. P. was directed to file a detailed affidavit-in-reply along with relevant papers of investigation and all papers of inquiry conducted under Section 174 of the Code. Thereafter, copies of the affidavits and papers supposed to be at pages 30 to 83 were placed on record and fresh affidavits-in-reply of respondent Nos. 1, 3 and 6 and additional affidavit-in-reply of respondent No. 3 were placed on record.

(3.) THE case of the respondents emerging from the affidavits-in-reply is that, at the relevant time in September 1994, Ganpati festival was going on in Vadodara city and as there were instructions from superior officers to round up anti-social elements, respondent Nos. 2, 3 and 4 were under instructions to round up such elements and, on 16-9-1994, respondent No. 2 had gone to the house of the petitioner at about 6. 00 p. m. and the deceased was brought at the police station by P. S. I. Shri Jhala. Shri jhala has stated in his affidavit that respondent No. 4 Shri B. J. Pathan had never gone to the house of the deceased, but he, in company of respondent Nos. 5 and 6, had gone to his house on 16-9-1994 at late night. According to him, the deceased or his wife had never complained about his sickness and he had quietly sat down in mobile van and he was produced before P. S. O. , makarpura Police Station with the report under Section 151 of the Code. The allegations of beating and torture are generally denied by all the deponents. The Deputy commissioner of Police has stated that, pursuant to an application submitted by the petitioner in September 1994, Police Commissioner had entrusted the inquiry about the allegations made in the application to assistant Commissioner of Police, "a" Division, Vadodara City and he had given his report on 12-12-1994. Accidental Death No. 50 of 1994 was also registered under Section 174 of the Code and the entire inquiry was entrusted to Assistant Commissioner of police, "a" Division Vadodara City, who submitted his report to Sub-Divisional Magistrate, Vadodara along with inquiry papers on 4-1-1995. Letter dated 12-10-1994 of Assistant Commissioner of police to the Commissioner of Police, Vadodara stated that the deceased was a known bootlegger released after one year of detention under PASA and, after being arrested on 16-9-1994, he had died of heart attack during police custody, and that, since legal procedure was taken up by Sub-Divisional Magistrate under Section 174 of the Code, he was not required to do anything more. In his report to the Sub-Divisional Magistrate, it was stated, in substance, that no one had beaten the deceased during his detention and after perusal of the papers of inquiry, accidental death of the deceased was required to be "approved". 3. 1 According to the additional affidavit-in-reply of respondent No. 3, during patrolling on 16-9-1994 at about 19. 00 hours, he had lodged a FIR being III-C. R. No. 368 of 1994 in respect of 35 liters of country liquor, in presence of respondent No. 4, against one Ganesh Chimanlal Jaiswal who happened to be cousin brother of the deceased and allegations were levelled against him due to that. Otherwise, he was on patrolling for the whole day on 17-9-1994, according to his statement. According to the additional affidavit-in-reply of respondent no. 4, he had not gone to the residence of the deceased on 16-9-1994 and had not seen him on 16-9-1994 or 17-9-1994. According to him, departmental enquiries were held against him and other police personnel in respect of death of Rasiklal Jaiswal, the deceased, and he was exonerated in that enquiry by Deputy Inspector General of Police by order dated 7-1-2006.