Friday, January 27, 2023

Allahabad HC directs UP govt to hand over probe into custodial death to SIT

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The Allahabad High Court has directed the Uttar Pradesh government to hand over the investigation into the case of death in police custody in Tirwa Kotwali of Kannauj to the Special Investigation Team (SIT).

The Division Bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar passed this order while hearing a Criminal Misc Writ Petition filed by Tribhuvan Prasad Verma.

Petitioners in these two connected petitions are police personnel, who are aggrieved by the lodgement of the FIR in case under Sections 166, 306, 342, 217 and 218 IPC, Police Station Kotwali, Tirwa, District Kannauj.

The FIR alleges the deceased, on account of ill treatment and harassment meted out to him, has committed suicide in the toilet of police station itself. The charge primarily is of abetting suicide on the part of the petitioners.

One of the other charge is that a previous FIR lodged in the matter by the father of the informant, also under Section 306 IPC, against the in-laws of the deceased, was investigated in a faulty manner as closure report was submitted even without waiting for the outcome of the viscera report, although it was awaited.

Allegation further is that without following the due procedure of law, the deceased was made to sit in the police station, unlawfully, and his prestige was dented by the act of the police personnel forcing the deceased to commit suicide.

The writ petition has been filed primarily on the premise that the police personnel acted strictly as per law. It is alleged that the deceased in a drunken state was creating nuisance at his in-laws place in respect of which a complaint was lodged on the help line number 112, whereafter the police had to intervene and the deceased was taken to the police station concerned.

The specific case of the petitioners is that the deceased was not arrested but he was kept at the police station, so as to protect the in-laws of the deceased. This is stated to be a course available in law by virtue of Section 151 CrPC.

One of the other submissions in the writ petition is that in respect of the incident in question a previous FIR was already lodged by the father of the victim and the investigation in the matter is still pending after rejection of the closure report in the matter by the competent court. Submission is that being the second FIR in respect of the same incident, the impugned FIR would be unsustainable in view of the law laid down by the Supreme Court in T.T Antony Vs State of Kerala and others, (2001) 6 SCC 181.

Senior counsel appearing for the petitioners has also placed reliance upon the report of the magisterial inquiry and two other inquiry reports to submit that the implication of the petitioners in the aforesaid FIR is not made out and that the only adverse observation by the Magistrate that the prestige of the deceased was damaged on account of his having been made to sit in the police station cannot be approved as the same is contrary to the specific provisions contained in Section 151 CrPC.

The Court noted,

Although the first information report is lodged by the Inspector/ Investigating Officer, Crime Branch, Criminal Investigation Department, Kanpur Division who is the main respondent in this petition but the father of the deceased has also intervened and respecting the rights of the victim we have permitted him to be heard in the matter as an intervenor. An affidavit has also been filed by the father of the deceased in which various allegations are made. Certain photographs have been annexed in order to submit that the height of the ceiling of the toilet was low and even in the photographs, the deceased is shown to be in standing position and his feet is touching the floor and that it actually is a case of murder and not of suicide. Various other allegations are also made with regard to harassment of the family members to contend that the investigation has not proceeded in the case in a fair manner so that the real culprit could be apprehended.

Certain photographs have also been annexed to show that the deceased had a fracture before he was taken to police station, whereas in the photographs of the deceased taken when he was found in the hanging position, no fracture is seen.

A rejoinder affidavit has been filed in which it has been stated that the plea of plaster in the feet on account of fracture was fabricated by the deceased himself apparently to create sympathy for himself and persuade his wife to come with him, as she was staying with her parents. Photographs have also been annexed, as per which the plaster was removed by the deceased himself.

The Court observed,

From the facts as have been noticed above, it transpires that the deceased was taken to police station in the night of 19.3.2020 and while he had gone to toilet in the early hours on 20.3.2020, it is alleged that he tried to commit suicide by hanging. The deceased was taken to hospital where he was declared dead. The FIR lodged in Case in the matter depicts the offence of abetment to suicide to have been committed by the in-laws of the deceased. The second FIR (impugned FIR), however, makes such allegations against the police personnel.

The father of the victim, in his affidavit, has annexed the copy of the protest petition filed in the previous FIR as also multiple representations made to the Director General of police, National Human Right Commission and other authorities stating that the death of his son was not a suicide but he was murdered by the police persons in collusion with the in-laws of the deceased.

One of the questions which would require determination during the course of investigation in the matter is as to whether the death of the deceased is suicidal or homicidal?

The Court further observed,

The father of the deceased in his affidavit has also stated that the contents of the previous FIR had not been correctly noted in as much as he was made to sign on blank paper. He further states that he has been saying so from the very beginning. He has been raising his grievance against the police personnel of having killed his son in collusion with the in-laws of the deceased. It is also alleged that this aspect of the matter has not been investigated so far and the inquiry has mostly been on the aspect relating to abatement of suicide.

Since the investigation in the FIR i.e in case is in progress pursuant to an order passed by the magistrate directing further investigation in the matter, we would not like to make any observation on the merits of the respective claim of parties, at this stage, or else it may influence the ongoing investigation. We, however, are inclined to notice the grievance raised in the matter so that the investigation takes care of all aspects which arise for determination in the facts of the case.

“Since the first information report in case is the first FIR in respect of the incident and the investigation has not concluded so far, we direct the State Government to transfer the investigation of both the cases to a Special Investigating Team, headed by a IPS officer not below the rank of SP who has no concern with the officers or the persons implicated in the case, alongwith two other officers of lower rank but not below the rank of Deputy Superintendent of Police. The SIT while investigating the matter shall consider all aspects of the crime including the question as to whether the death of the deceased is suicidal or homicidal. The report of the special investigating team shall be submitted early, preferably within a period of three months from today. Copy of such a report shall be placed by way of an affidavit filed on behalf of the State by an officer not below the rank of Special Secretary, by the next date fixed.

Subject to petitioners cooperating with the special investigating team, no coercive action shall be taken against them pursuant to the impugned first information report registered as case under Sections 166, 306, 342, 217 and 218 IPC Police Station-Kotwali, Tirwa, District Kannauj,” the Court ordered.

The Court has fixed the next hearing of the petition on September 6, 2022.

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