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Allahabad High Court denies bail to policeman booked for causing custodial death

A Single Bench of Justice Samit Gopal passed this order while hearing a Criminal Misc Bail Application filed by Sher Ali.

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The Allahabad High Court today denied Bail to a policeman who has been booked for causing custodial death of a man in the year 1997.

A Single Bench of Justice Samit Gopal passed this order while hearing a Criminal Misc Bail Application filed by Sher Ali.

The bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant  Sher Ali, seeking enlargement on bail during trial in connection with Case under Sections 364, 304, 506 IPC, registered at Police Station Phoolpur, District Varanasi.

In the case, on February 28, 1997 at about 04:00 AM, the same person of Kumar Guest House came along with Shankhdhar Dwivedi Sub-Inspector, Police Station Kotwali, District Shahdol, Madhya Pradesh and the police personnels of the said Police Station the applicant Sher Ali, Digvijay Pandey, Jagat Singh along with the transporter of Shahdol Suresh Prasad Agarwal and Mahesh Chandra Agarwal and some unknown persons in three vehicles being a Maruti Van a Commander Jeep and one Trax Jeep having a closed body of white colour to the house of the first informant and shouted Om Prakash Gupta the name of the father of the first informant, called him, on which, father of the first informant came out and then the said persons forcibly caught hold of his father, and while assaulting took him inside the Commander Jeep.

The first informant then went to Police Station Phoolpur and to different Police Stations in District Varanasi to know the whereabouts of his father and even at the district court and other places but could not know anything and then in the afternoon informed the S.S.P., Varanasi through a telegram. On an inquiry from Kumar Guest House, Lanka he came to know that the police of District Shahdol have taken away his father.

He kept on inquiring about his father and subsequently on March  02, 1997 at about 08:00 AM, a police constable from Police Station Phoolpur came and told him that a wireless message was received from Shahdol that his father had died due to heart attack.

He came to know in Shahdol that his father have brought from Varanasi to Police Station Kotwali, District Shahdol by the District Inspector, Kotwali Incharge R. Rajan, Sub-Inspector Shankhdhar Dwivedi, police personnels, Sher Ali, Digvijay Pandey, Jagat Singh and others and they mercilessly and inhumanly assaulted his father due to which his father died in the Police Station itself on March 01, 1997 at about 08:00 PM and the police in order to conceal the factum of murder in conspiracy with the doctors of District Hospital, Shahdol have shown the admission of his father in the hospital one hour prior to his death and have shown the death in the hospital whereas his father had died at Police Station Kotwali itself.

The First Information Report was registered on the basis of an application dated April 21, 1997 moved by Sanjay Kumar Gupta, the first informant under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Varanasi with the prayer that appropriate orders be passed for registration of the case and investigation therein.

After registration of the First Information Report, the matter was under investigation by the local police, but an order dated October 09, 1997 of the S.P. (Rural), Varanasi, the same was transferred to S.I.S. Branch, Varanasi for investigation. The S.I.S. concluded the investigation and submitted a Final Report dated October 23, 1998.

Against the final report as submitted by the S.I.S., Varanasi on October 23, 1998, the first informant filed a protest petition dated January 31, 2001, along with his affidavit.

The Court of the Chief Judicial Magistrate, Varanasi order dated June 05, 2007 accepted the said protest petition and rejected the final report as submitted by the police and summoned the accused persons for offences under Sections 364, 304, 506 IPC. Non bailable warrants were also issued simultaneously and the case was ordered to be registered as a State case.

Against the order dated June 05, 2007, an application under Section 482 Cr.P.C. was filed by R.Rajan before the Court in which order dated September 13, 2007 the further proceedings of the said case were stayed.

The first informant Sanjay Kumar Gupta then filed a Writ Petition before the Apex Court as “Sanjay Kumar Gupta Vs. State of U.P. and another” in which order dated September 23, 2020, the Apex Court vacated the order dated September 13, 2007 passed in the said 482 Cr.P.C. petition and directed the Chief Judicial Magistrate, Varanasi to proceed with the matter in accordance with law.

Subsequently, co-accused Jagat Singh and the present applicant Sher Ali preferred a Crl. Misc. Anticipatory Bail Application which order dated April 06, 2021 was allowed and it was ordered that in the event of arrest of the applicants therein they shall be released on anticipatory till the conclusion of trial subject to the conditions in the said order.

The Apex Court had set aside the orders of anticipatory bail granted in the petition of the applicant and co-accused persons and had rejected the said applications and directed them to apply for regular bail and directed that if any such prayer is made by them, the same be considered expeditiously in accordance with law.

The applicant surrendered on May 19, 2021 before the court below at Varanasi and filed an application for bail which was rejected by order dated June 30, 2021 passed by the Additional Sessions Judge, Varanasi and as such the bail application has been filed before the Court.

Counsel for the applicant argued that:-

1-The applicant has been falsely implicated in the present case.

2-The deceased while being in custody at Police Station Kotwali, District Shahdol complained about chest pain and wanted to ease himself after which he was taken to the toilet by the applicant who was present there but he fell on the stairs due to severe heart attack.

3-The deceased was taken to the hospital and was admitted there who died later on, for which the doctors after the postmortem could not give any definite opinion about the cause of death and preserved the viscera which was examined by the Forensic Science Lab and the report thereof does not mention of any poison being found in the body of the deceased. The death of the deceased was a natural death.

4-The First Information Report is based on totally false and frivolous allegations. There is no corroboration of the version of the prosecution that the deceased died a custodial death. The death was a natural death. The applicant is a retired government servant and his implication therein is false.

5-The applicant has no criminal history as stated in the affidavit and has been in jail since May 19, 2021.

AGA for the State opposed the prayer for bail and argued that:-

(1) The deceased was taken away from his house by the applicant and co-accused persons which is not disputed.

(2) The deceased was under police custody at Police Station Kotwali, District Shahdol on the date of his death.

(3) The death occurred while the deceased was under police custody.

(4) The order summoning the accused while allowing the protest petition and rejecting the final report is well considered.

(5) The beating of the deceased while being in police custody is evident from the fact that he has received two contusions on his body and the site of the injuries are fleshy parts of the body which can be received only after being assaulted.

(6) The matter is serious in nature as it concerns custodial death.

(7) The prayer for bail of the applicant be rejected.

“After having heard Counsels for the parties and having gone through the records, it is evident that the applicant is named in the First Information Report. The case of the prosecution that the deceased was taken away to Police Station Kotwali, District Shahdol is not under dispute. The applicant is named specifically and has been assigned the role of taking away the deceased from Varanasi to Shahdol along with other co accused persons”, the Court observed.

The Court noted that the presence of the applicant even at the Police Station and he being there has been argued and pleaded in the bail application and even it is pleaded that when the deceased fell ill the applicant was present there. The deceased as per the postmortem report has received injuries on his body which are suggestive of assault on him by hard and blunt object. There is no finding in the postmortem examination report which would be suggestive of any heart problem or cardiac arrest/heart attack. There is nothing to show that the death was natural. The case is a case of custodial torture and death.

The Court further noted that the Apex Court order dated September 23, 2020 passed in Writ Petition  has directed the trial court to proceed with the trial on a day today basis and make an endeavour to conclude it within a period of one year.

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The applicant is a resident of a different State. He has been in the police force which is a disciplined force and enshrined with the pious duty of maintaining law and order and protecting citizens. His release may have an adverse effect in the trial, the court said.

“Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Times and again the judicial verdicts of the Apex Court and other Courts have shown their concern and anguish in such matters.

Considering the totality of the case in particular, and the nature of evidence available on record, I am not inclined to release the applicant on bail”, the Court said while rejecting the bail application

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