H.S. HIMKAR (HARGOVIND SINGH HIMKAR) S/O LATE RAMASHISH SINGH, R/O MOHALLA-NEPALI NAGAR, P.S.-RAJIV NAGAR, DISTT.-PATNA Vs. THE STATE OF BIHAR THROUGH HOME COMMISSIONER (POLICE), GOVERNMENT OF BIHAR, PATNA & ORS.

JUDGEMENT

(1.) Petitioner is practicing in this Court since 1983. He has filed this writ petition for a direction to the respondent authorities to initiate disciplinary proceeding against respondent nos. 5, 6 the Officer-in-Charge, Sub-Inspector of Police, Rajiv Nagar, P.S.-Patna as they forcibly barged into Nepali Nagar, Patna residence of the petitioner on 10.5.2012 at 10 P.M. alongwith respondent no. 7 the Executive Engineer, Bihar State Housing Board (hereinafter referred to as the Board), abused him, his family members violating their right to life, liberty, privacy, peaceful enjoyment of residence including right to live with dignity as they threatened the petitioner and his family members with criminal action for extraneous consideration infracting Article 21 of the Constitution. Petitioner feeling insecure, threatened and unsafe by the police action called Senior Superintendent of Police, Patna on his mobile telephone no. 9431822967 informing him about the incident. At the intervention of the Senior Superintendent of Police, Patna during the night of 10.5.2012 petitioner, his family members were not taken in custody. In support of the aforesaid case petitioner relied on the video recording of the incident taken in his mobile camera, which was placed on record by way of DVD-R. Following morning also threat was extended that petitioner, his family members may be arrested any moment. Petitioner having felt insecure filed the present petition on 11.5.2012 and mentioned the matter before Hon'ble the Chief Justice, whereafter the case was directed to be notified for urgent hearing on 14.5.2012 with direction to the petitioner to serve copy of the petition on the respondents through the office of the learned Advocate General with further direction to the Senior Superintendent of Police, Patna to extend adequate protection to the petitioner, his family members against any threat to their person and property. On 14.5.2012 formal notice was issued in the matter to respondent nos. 5, 6 through respondent no.3 the Senior Superintendent of Police with direction to list the case as the first case on 19,6.2012. Matter was taken up on 3.7.2012 on which date both respondent nos. 5, 6 appeared in the proceeding but did not file any counter affidavit in compliance of the order of the High Court dated 14.5.2012, which default was noticed by this Court under order dated 3.7.2012 and last indulgence was granted to respondent nos., 5, 6 to serve a copy of their counter affidavit on the petitioner by 6.7.2012.

(2.) In compliance of the directions of the High Court dated 3.7.2012 separate counter affidavit by respondent nos. 5, 6 was served on the petitioner on 6,7.2012 denying the allegation levelled by the petitioner against respondent nos. 5, 6. It is stated in the counter affidavit that petitioner has illegally and surreptitiously raised a house over 8-10 kathas land situate in Nepali Nagar, Patna on the western side of the Ashiana-Digha Road, which is part of 1024.52 acres of land acquired by the Government for the Board and the construction raised by the petitioner is without the knowledge of the Board. Reference in this connection is made to a joint order passed by the Managing Director of the Board, District Magistrate and Senior Superintendent of Police, Patna bearing Memo No. 2728 dated 7.4.2010, Annexure-R/A constituting a team of the Executive Magistrate, Patna Sadar, Dy.S.P. Law and Order, Patna, Executive Officer, New Capital Circle, Patna Municipal Corporation, General Manager, PESU or its authorized Executive Engineer and Executive Engineer, Divisions-Il, III and Public Health Division of the Board for protecting the lands of the Board by ensuring no construction over 1024.52 acres of land acquired for the Board, any constructton raised on the aforesaid land is demolished, First Information Report lodged and no transaction concerning the acquired land is registered. it is further stated in the counter affidavit that the Executive Engineer of the Board Sri Prabhunath Choudhary found on 29.4.2011 earth filling work in progress over the aforesaid land by means of J.C.B. Machine, whereafter Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 for the offences under Sections 447, 420, 467 and 34 of the Penal Code was lodged, in which petitioner was granted bail on the assurance that he would not proceed with the construction any further. It is further stated in the counter affidavit with reference to entry no. 25 made in the station diary of Rajiv Nagar P.S. Case No. 47/12 dated 10.5.2012 that at 19.00 hours information was received in the P.S. that in Nepali Nagar H.S. Himkar (petitioner) was proceeding with illegal construction over the lands of the Board, which was recorded in the station diary and Executive Engineer of the Board was informed about the said illegal construction through mobile. It is further stated in the counter affidavit with reference to the entries made in the station diary that Sri Ataur Rahman, Executive Engineer of the Board along with Assistant Engineer, Rameshwar Singh and staff Sachidanand Pandey arrived at the police station, it is also stated in the counter affidavit that at 20.30 P.M. the Officer-in-Charge alongwith Sub-Inspector, R.S. Singh and Assistant Sub-Inspector, Nagina Sao together with armed force as also Executive Engineer, Ataur Rahman, Junior Engineer Rameshwar Singh and staff Sachidanand Pandey proceeded for conducting raid in Nepali Nagar handing over charge of the station diary to Sub-Inspector Prabhu Das. It is also stated in the counter affidavit that police party, the officers and the staff of the Board arrived at the house of the petitioner in Nepali Nagar at 9 P.M. and while the raiding party was taking round of the place of occurrence petitioner came out of his house and invited the Officer-in-Charge, respondent no. 5 and the Executive Engineer, respondent no. 7 to come inside asking others constituting the raiding party to wait outside. It is further stated in the counter affidavit that it was the petitioner who shouted at respondent no. 5 but respondent no. 5 neither uttered a word nor misbehaved with petitioner and his family members. It is further stated in the counter affidavit that the police party had come to the house of the petitioner as per instructions of the Executive Engineer of the Board in compliance of the joint order dated 7.4.2010. About the compact disc it has been stated in the counter affidavit that the same does not support the version of the petitioner set out in the writ petition as from the disc it appears that respondent no. 5 was sitting quietly on the chair offered to him by the petitioner. It is further stated in the counter affidavit that after the incident was over respondents 5, 6 and 7 alongwith other staffs came back to the police station at 23.30 hours and Rameshwar Singh, Assistant Engineer lodged Rajiv Nagar P.S. Case No. 47/12 dated 10.5.2012 against the petitioner and his family members for the offence under Sections 420, 467, 468, 353, 504, 506, 34 of the Penal Code which was registered by respondent no. 5 on the basis of written typed report bearing letter no. 56 dated 10.5.2012 for illegal construction (shuttering for roof casting), obstructing the police party from seizing the building materials kept for roof casting as also for the obstruction caused by the petitioner and his family members in due discharge of duty by the officers of the raiding party. Perusal of letter dated 10.5.2012, however, indicates that shuttering work for roof casting was in progress (almost complete), mason and labourer who were engaged in shuttering work could not be apprehended as they managed to escape. It is further stated in the counter affidavit that petitioner was allowed bail in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 on his assurance that he would not proceed with the construction of his house but it is astonishing as to how petitioner completed his house in the year 2012. It is denied in the counter affidavit that petitioner was spared from being arrested in the night of 10.5.2012 on the interventiqn of the Senior Superintendent of Police, Patna.

(3.) By filing common reply to the separate counter affidavit filed on behalf of respondent nos. 5, 6 petitioner disputed the version of the occurrence given by respondent nos. 5, 6 and stated that respondent nos. 5, 6 though admitted the incident dated 10.5.2012 but have given a distorted version of the occurrence, which is denied by the petitioner. In this connection, petitioner again reiterated that he and his family members including ladies were abused by respondent nos. 5, 6 by forcibly barging into his house on 10.5.2011 at about 10 P.M. in the night with a view to pressurize the petitioner to succumb to the illegal demands of respondent nos. 5, 6.In this connection, it is pointed out that initially petitioner was not made accused in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011, as would appear from column no. 7 of the said First Information Report, in which 13 persons are named as accused but the name of the petitioner is mentioned in the said column only with a view to identify accused no. 13 Md. Rajauddin. Notwithstanding the aforesaid fact petitioner was informed on 30.4.2011 at 6.16 A.M. by Sri R.N.P. Singh suspended Officer-in-Charge of Rajiv Nagar P.S. through mobile no. 9431820408 the official mobile of Rajiv Nagar P.S. over mobile no. 9334111999 of the petitioner that he has been made accused in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 for a non-bailable offence and he may be arrested. On 17.5.2011 at about 8.18 P.M. petitioner called Rajiv Nagar P.S. over official mobile no. 9431820408 requesting the P.S. authorities to make available patrolling party in his area, respondent no. 6 while responding to the request informed the petitioner that he is wanted in connection with Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 he should obtain bail, otherwise he may be arrested as his arrest has been ordered by superior police authorities. It is submitted that aforesaid information was also furnished to the petitioner only by way of pressure tactics. With reference to written information dated 18.5.2011, Annexure-4 furnished by respondent no. 6 in the capacity of information officer of Rajiv Nagar P.S. it is submitted that petitioner herein was not accused in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 till the date of issue of the said information. Highlighting the pressure tactics applied on the petitioner on 30.4.2011, 17.5.2011 together with the fact that name of the other house owners in whose house the 13 accused persons of Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 were found working was not mentioned in column no. 7 so as to identify those accused the petitioner through his application dated 11.6.2011 informed the Home Commissioner, Bihar, D.I.G., Central Range, Senior Superintendent of Police, Patna sent through speed post that he is being subjected to pressure and differently treated than the other house owners of Rajeev/Nepali Nagar as he was not ready to oblige the police officers serving in the Rajiv Nagar P.S. and is under constant threat of being arrested by respondent no. 6. Even after petitioner submitted application dated 11.6.2011 to the Home Commissioner, Bihar, D.I.G., Central Range, Senior Superintendent of Police, Patna threat of further police action did not recede as officers of Rajiv Nagar P.S. continued to mount pressure on the petitioner to grease their palm, otherwise he may be arrested at any time. In order to avoid such threat petitioner appeared in the Court of C.J.M., Patna on 16.6.2011 and applied for grant of bail by the C.J.M. in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011, which was allowed and petitioner was released on bail under order dated 16.6.2011 in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011. Having obtained bail in Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 petitioner filed petition dated 16.6.2011 before the C.J.M., Patna informing learned C.J.M. also about the pressure tactics applied by Rajiv Nagar P.S. on him together with the fact that he was being discriminated vis-a-vis the other house owners in whose house the 13 accused persons were found doing construction work but the name of those house owners was not mentioned in column no. 7 of the First Information Report of Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011. C.J.M., Patna having appreciated the contents of petition dated 16.6.2011, Annexure-7 called for a report from Rajiv Nagar P.S., which was submitted by respondent no. 6 on 25.9.2011, Annexure-5 stating that during investigation and supervision of Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011 the case has been found true not only against the F.I.R. named accused but also against the house owners, namely, Guptaji, Jhaji, Rakesh Babu, Nityanand Singh and H.S. Himkar (petitioner) and the J.C.B. owner Dhananjay Singh. In the report respondent no. 6 further admitted that on 17.5.2011 at 8.18 P.M. he did inform the petitioner on his mobile phone that he has been made accused in the case during supervision by the Dy.S.P. Law and Order. Report further states that instructions have been received from the City Superintendent of Police, Patna also to arrest the petitioner, as would appear from report-02 dated 27.5.2011 submitted in connection with Rajiv Nagar P.S. Case No. 64/11 dated 29.4.2011. In the concluding paragraph of the report, it is submitted that the statement made by the petitioner in his petition dated 16.6.2011 is only self-serving statement, which is wholly incorrect and should not be relied upon.