ZAHUR HAIDAR ZAIDI Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Bail petitioner, Zahur Haidar Zaidi, who is at present in custody, has approached this Court by way of instant criminal miscellaneous petition under Section 439 of the Code of Criminal Procedure, praying therein for grant of bail in FIR No. RC.9(S) /2017-SC.I/CBI/New Delhi dated 22.7.2017 under Sections 120B, 302, 330, 331, 348, 323, 326, 218, 195, 196 and 201 of the Indian Penal Code (hereinafter, 'IPC') registered at New Delhi by the Central Bureau of Investigation (hereinafter, 'CBI') .

(2.) Sequel to order dated 19.12017, CBI has filed a status report/reply, opposing therein prayer for grant of bail made on behalf of the bail petitioner. Perusal of reply /status report suggests that FIR detailed hereinabove came to be registered against the bail petitioner as well as other co-accused on the directions issued by Division Bench of this Court in CWPIL No. 88 of 2017. Division Bench of this Court, while transferring investigation in FIR No. 97 of 2017 under Sections 302 and 376 IPC and Section 4 of Protection of Children from Sexual Offences Act (hereinafter, 'POCSO Act') , also directed CBI to conduct investigation in FIR No. 101 of 2017 registered at Police Station, Kotkhai, District Shimla, Himachal Pradesh, relating to custodial death of one of the accused namely Suraj Singh arrested by police in connection with FIR No. 97 of 2017, relating to rape and murder of a minor girl in Halaila forests in District Shimla on 4.7.2017. The minor girl (given name of 'Gudiya') after having attended her school at Government Senior Secondary School, Mahasu, left for her home at about 4.30 pm. Unfortunately, on the way to her home, she was allegedly raped and murdered by some unknown persons. Her body was found lying in Halaila forests near Mahasu at around 7.40 am on 6.7.2017. FIR No. 97 of 2017 came to be registered under Sections 302 and 376 IPC and Section 4 of POCSO Act at Police Station Kotkhai, District Shimla, Himachal Pradesh, against unknown persons. Since there was huge public outcry against aforesaid brutal act committed by unknown persons, and accused could not be arrested even after four days of the alleged incident, Director-General of Police, Himachal Pradesh vide letter dated 10.7.2017 constituted a Special Investigation Team (in short, 'SIT') headed by the bail petitioner, who was the then Inspector-General of Police (Southern Range) . Additional Superintendent of Police (Rural) , Shimla Bhajan Dev Negi Deputy Superintendent of Police Manoj Joshi and SI/SHO Rajinder Singh were also the members of the aforesaid SIT, whereas D.W. Negi, the then Superintendent of Police, Shimla, was entrusted with responsibility of timely and sustained investigation of the case, same being in his jurisdiction. After formation of SIT, bail petitioner, D.W. Negi and Manoj Joshi alongwith other co-accused conducted investigation of the case and in this regard, made inquiries from several people in and around Halaila forests. As per case of the prosecution, bail petitioner, Manoj Joshi and other accused entered into criminal conspiracy to falsely implicate deceased Suraj Singh, who subsequently died in custody and others, in FIR No. 97 of 2017, relating to rape and murder of minor girl on 4.7.2017 in Halaila forests. In pursuance to aforesaid criminal conspiracy, SIT arrested Suraj Singh and four others on 13.7.2017. In pursuance to said criminal conspiracy, a team of police officers/officials consisting of Deputy Superintendent of Police Manoj Joshi, SI Rajinder Singh, ASI Deep Chand Sharma, HC Rafee Mohammed, HHC Mohan Lal, HHC Surat Singh and Constable Ranjeet Sateta, tortured Suraj in order to extract confession of the crime and in this process, caused bodily injuries intentionally on the person of Suraj in the police custody continuously from 13.7.2017 till his death in the intervening night of 18th and 19th July 2017, which injuries were sufficient in the ordinary course of nature to cause his death. On 13.7.2017, bail petitioner left Police Station Kotkhai and participated in a press conference held by Director-General of Police, Himachal Pradesh at Shimla. In the press conference, Director-General of Police claimed that the police had solved the case and arrested five accused in connection with the case relating to rape and murder of the minor girl on 4.7.2017. Since public at large was not satisfied and convinced with the story put forth by the police in the press conference held on 13.7.2017, Director-General of Police, Himachal Pradesh sent a communication to the Secretary (Home) to the Government of Himachal Pradesh to get the matter investigated from CBI. On 14.7.2017, Secretary (Home) to the Government of Himachal Pradesh sent a communication to the Secretary Personnel to the Government of India, requesting therein to issue direction to CBI to take over the investigation of the case relating to rape and murder of minor girl on 4.7.2017.

(3.) On the intervening night of 18th and 19th July, 2017, members of SIT in pursuance to criminal conspiracy tortured accused Suraj in custody to extract confession of crime and in this process caused bodily injuries to him. During the intervening night of 18th and 19th July, 2017, accused Suraj died in custody due to torture by the police officials namely Deputy Superintendent of Police Manoj Joshi, SI Rajinder Singh, ASI Deep Chand Sharma, HC Rafee Mohammed, HHC Mohan Lal, HHC Surat Singh and Constable Ranjeet Sateta, tortured Suraj. Immediately after death of Suraj, Dy.SP Manoj Joshi after issuing necessary directions to other police personnel present in the Police Station Kotkhai, left for Shimla. While leaving Police Station, Manoj Joshi told SHO Rajinder Singh that incident will be given colour of fight between accused Suraj and other accused Rajinder alias Raju. As per prosecution, Dy.SP Manoj Joshi, at the first instance met D.W. Negi, the then Superintendent of Police, Shimla and discussed the matter with regard to custodial death of Suraj and thereafter both of them went to the residence of bail petitioner, the then Inspector-General of Police, who was heading SIT, in late night hours of 18.7.2017, where they further conspired to lodge FIR on account of death of Suraj, knowing fully well that Suraj died due to custodial torture. In furtherance to criminal conspiracy hatched by aforesaid members of SIT, Dy.SP Manoj Joshi made a call to Station House Officer Rajinder Singh from the residence of the bail petitioner to lodge an FIR (later registered as FIR No. 101 of 2017) against arrested person namely Rajinder alias Raju, under Section 302 IPC, stating wrong facts of alleged killing of Suraj in police lockup of Police Station, Kotkhai. As per investigation conducted by the prosecution, Dy.SP Manoj Joshi after having met bail petitioner and Superintendent of Police, Shimla, returned back to Police Station Kotkhai early in the morning of 19.7.2017 and conducted inspection of police lockup before visit of Illaqua Magistrate, who was supposed to conduct magisterial inquiry into the matter under Section 176(2) of the Code of Criminal Procedure (hereinafter, 'CrPC') . Above named police officers also pressurized Constable Dinesh (Sentry Duty) to tow the line of seniors and forced him to sign the complaint containing false/ concocted story so as to make it part of FIR No. 101 of 2017 but the fact remains that Constable Dinesh did not sign said complaint at that time. Subsequently, bail petitioner, pursuant to orders issued by Director-General of Police, visited Police Station Kotkhai to conduct a fact-finding inquiry into the death of Suraj in police custody. During said inquiry, bail petitioner examined Sentry Duty Constable Dinesh, who disclosed the truth by giving entire sequence of events relating to death of Suraj during custodial torture. Allegedly, the bail petitioner recorded the statement of Sentry Duty Constable Dinesh on his mobile phone but did not report the same to the DirectorGeneral of Police in his report and despite having knowledge with regard to the real facts, supported the version of false/concocted FIR that Suraj was killed in police lockup by Rajinder alias Raju. As per prosecution, on the direction of bail petitioner, a complaint under Section 154 CrPC was got signed from Sentry Duty Constable Dinesh by MHC Vipan Kumar and Constable Mukesh Kumar. Bail petitioner after having conducted inspection submitted his report vide letter dated 20.7.2017, annexed with charge sheet as D-73, disclosing therein that in the matter of custodial death, FIR No. 101 of 2017 under Section 302 IPC has been registered at Police Station Kotkhai on the statement of Constable Dinesh. In his aforesaid communication, bail petitioner also stated that he questioned MHC Vipan Kumar No. 952, Constable Sudhir Rangta No. 1556 and Constable Dinesh Kumar No. 608 (Sentry Duty between 9 am to 12 midnight) . He further stated that inquiry was disrupted due to law and order breakdown that followed at Police Station Kotkhai.