REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) NO. 193 OF 2006

Dalbir Singh  …Petitioner

Vs.

State of U.P. and Ors.  …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Alleging  that  because  of  custodial  torture  and diabolic  acts  of  the

police officials of Noida Police, Somvir Singh @ Sonu aged 17 ½  years

lost   his  life.  He  was  studying  in  9th standard.  After  dis-continuing  his

education  he  was  helping  his  father,  the  petitioner,  in  his  agricultural

activities.   

2. The petitioner had described the factual scenario to be thus:

The deceased was called by his friend one Kunwar Pal resident  of

Sikri  PS  Khurja  and  at  relevant  time  residing  at  Telia  ghat  Khurja,  PS

Khurja, distt. Bulandshahar at about 6 p.m. on 1st of September, 2006. He

told  Sonu  that  five  persons  want  to  purchase  some  property.  Since  he

wanted to show them the land,  he requested Sonu to go along with him.

They took him in the car. Since Sonu did not return till 9 PM, the petitioner

and his son who came from Faridabad started looking around for him and at

about 3.45 AM the petitioner saw that the said Kunwar Pal came out from a

lane. On enquiry about the whereabout of Sonu, the petitioner was informed

that Sonu had been taken by the Police officials of Sector 20 Noida Police

Station and he gave the telephone number of  one Pradeep constable  and

asked the petitioner to contact him. The petitioner immediately contacted on

the given number and the said constable told him that if he wanted to see

Sonu, he had to come to Sector 31 Police Station at 10 AM. They were not

given any further information. On trying to call up the number again to get

further details, there was no response from the telephone or it was switched

off. At about 9 A.M., the petitioner and his son reached Sector 31 Police

Station to look for the said constable Pradeep and were informed that he

was not on regular posting and that he used to visit the place occasionally.

The petitioner thereafter left Sector 20 and also called up the house and to

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the utter shock and surprise was informed that the police officers from PS

Phurja Dehat had come and informed the family that Sonu had committed

suicide in Sector 20 lock up. It is only then that the family realized that said

five persons were policemen in plain  clothes.  On reaching Sector  20 the

petitioner was informed that the dead body was lying in the mortuary and

would be sent for post mortem. The petitioner and his son were taken to

Sector 94 Noida where they saw the dead body of Sonu lying on a stretcher.

The body was covered with injuries, black marks and abrasions all over. It

was clear that he had been badly beaten up.  Blood was coming out from the

head.  

S.S.P.  R.K.S.  Rathore  and  Additonal  SSP came to  the  petitioner’s

house  and  tried  to  convince  him  and  his  family  that  since  Sonu  was

involved in a case of looting, he had been arrested and he committed suicide

while in police lock up by hanging himself with his shirt.  The post mortem

would have to be conducted. In the meantime, the news of Sonu’s killing

having reached the village there was public out cry as there was one more

death in  the hands  of  Noida Police and the matter  appeared in  the  local

media mainly in vernacular.  The petitioner lodged First Information Report

(in short the ‘FIR’) with the police which threatened him and also tried to

pressurize him into accepting the theory of suicide. But the untimely murder

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of the youngest  child who was a law abiding citizen and had never been

involved in any anti social or criminal activities had lost his life in the hands

of the police and petitioner did not accept the statements, even at the cost of

threat from the police.  

To calm down the tempers  of  the villagers,  an FIR was ultimately

registered alongwith two other FIRs which have also been registered against

the  deceased  son of  the  petitioner;  one  for  alleged  loot  of  some mobile

phone,  which  has  now  been  planted  on  the  deceased  and  the  other  for

attempt  to  suicide.  The  FIR  dated  2.9.2006  was  registered  against  the

unknown police officers. All attempts by the petitioner to have an impartial

post mortem of the body of the deceased was thwarted by the police who

was insisting on the theory of the suicide by hanging with the help of shirt.

The external injuries all over the body of the deceased were not explained

and in fact the post mortem report itself is not accurate as compared with the

photographs.  The  petitioner  and  his  other  family  members  have  given  a

statement setting out the facts.   

Pursuant to notice issued in this case, the State of U.P. has filed its

response. It is pointed out that the FIR has been registered and certain police

officials  had  been  charged  for  commission  of  offences  punishable  under

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Sections  330,  342 and 306 of  the Indian Penal  Code,  1860 (in short  the

‘IPC’).   It  is  stated  that  sanction  for  prosecution  has  been  given  on

15.10.2008 and the charge sheet had been filed on 14.11.2008.  The accused

persons surrendered before learned Chief Judicial Magistrate on 14.11.2008

and their bail applications had been rejected. Cognizance of the aforesaid

offences has been taken on 17.11.2008.  

4. Learned counsel for the petitioner submitted that it is a clear case of

custodial torture and death and by giving a colour of Section 306 IPC, an

attempt is being made to protect the erring police officials. It is also stated

that the compensation should be paid.  

5. Learned counsel for the respondent-State on the other hand submitted

that the police after investigation has not found any evidence of murder and

therefore the charge sheet  had been filed.  If at  any stage it  comes to the

notice  of  the  Court  that  other  offences  are  involved,  certainly  necessary

orders can be passed by the Court.   

6. Custodial violence, torture and abuse of police power are not peculiar

to this country, but it is widespread. It has been the concern of international

community because the  problem is universal  and the challenge is  almost

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global. The Universal Declaration of Human Rights in 1948 which marked

the emergence of a worldwide trend of protection and guarantee of certain

basic human rights stipulates in Article 5 that “No one shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment”. Despite

this pious declaration, the crime continues unabated, though every civilized

nation shows its concern and makes efforts for its eradication.  

7. If it  is assuming alarming proportions,  now a days, all  around it  is

merely on account of the devilish devices adopted by those at the helm of

affairs who proclaim from roof tops to be the defenders of democracy and

protectors of peoples’ rights and yet do not hesitate to condescend behind

the  screen  to  let  loose  their  men  in  uniform  to  settle  personal  scores,

feigning  ignorance  of  what  happens  and  pretending  to  be  peace  loving

puritans and saviours of citizens’ rights.    

8. Article 21 which is one of the luminary provisions in the Constitution

of India, 1950 (in short the ‘Constitution’) and is a part of the scheme for

fundamental rights occupies a place of pride in the Constitution. The Article

mandates that no person shall be deprived of his life and personal liberty

except  according  to  the  procedure  established  by  law.  This  sacred  and

cherished right i.e. personal liberty has an important role to play in the life

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of every citizen. Life or personal liberty includes a right to live with human

dignity. There is an inbuilt guarantee against torture or assault by the State

or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for

short  the  ‘Code’)  deals  with  the  powers  of  arrest  of  persons  and  the

safeguards required to be followed by the police to protect the interest of the

arrested person. Articles 20(3) and 22 of the Constitution further manifest

the constitutional protection extended to every citizen and  the guarantees

held out for making life meaningful and not a mere animal existence.  It is

therefore difficult to comprehend how torture and custodial violence can be

permitted  to  defy  the  rights  flowing  from  the  Constitution.  The

dehumanizing  torture,  assault  and  death  in  custody which  have  assumed

alarming proportions raise serious questions about the credibility of rule of

law and administration of criminal justice system. The community rightly

gets disturbed. The cry for justice becomes louder and warrants immediate

remedial  measures.  This  Court  has in  a large number of cases expressed

concern  at  the  atrocities  perpetuated  by  the  protectors  of  law.  Justice

Brandies’s  observation  which  have  become  classic  are  in  following

immortal words:

“Government as the omnipotent  and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for  law,  it  invites  every  man  to  become  a  law  into

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himself”. (in  (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659).  

9. The diabolic recurrence of police torture resulting in a terrible scare

in the minds of common citizens that their lives and liberty are under a new

and unwarranted peril because guardians of law destroy the human rights by

custodial  violence  and  torture  and  invariably  resulting  in  death.  The

vulnerability  of  human  rights  assumes  a  traumatic  torture  when

functionaries of the State whose paramount duty is to protect the citizens

and not  to  commit  gruesome offences  against  them, in  reality  perpetrate

them. The concern which was shown in Raghubir Singh’s case (supra) more

than two decades back seems to have fallen to deaf ears and the situation

does not seem to be showing any noticeable change. The anguish expressed

in  Gauri  Shanker Sharma v.  State of U.P. (AIR 1990 SC 709),  Bhagwan

Singh and Anr. v. State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera

@Lalita Behera v.  State of  Orissa and Ors.  (AIR 1993 SC 1960),  Pratul

Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100),  Kewal

Pati (Smt.) v.  State of U.P. and Ors. (1995 (3) SCC 600),  Inder Singh v.

State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder

Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision in Shri

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D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have caused

not  even any softening attitude to the inhuman approach in  dealing  with

persons in custody.

10. Rarely in cases of police torture or custodial death, there is any direct

ocular  evidence of the complicity of the police  personnel  alone who can

only explain the circumstances in which a person in their custody had died.

Bound as they are by the ties of brotherhood, it  is not  unknown that the

police  personnel  prefer  to  remain  silent  and  more  often  than  not  even

pervert the truth to save their colleagues – and the present case is an apt

illustration  –  as  to  how  one  after  the  other  police  witnesses  feigned

ignorance about the whole matter.

11. The exaggerated adherence to and insistence upon the establishment

of proof beyond every reasonable doubt by the prosecution, at times even

when the prosecuting agencies are themselves fixed in the dock, ignoring

the ground realities, the fact-situation and the peculiar circumstances of a

given case, as in the present case, often results in miscarriage of justice and

makes the justice delivery system suspect and vulnerable.  In the ultimate

analysis  the  society suffers  and a criminal  gets  encouraged.   Tortures  in

police custody, which of late are on the increase, receive encouragement by

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this type of an unrealistic approach at times by the courts as well because it

reinforces the belief in the mind of the police that no harm would come to

them if one prisoner dies in the lock-up because there would hardly be any

evidence available  to  the  prosecution  to directly implicate  them with  the

torture.   The  courts  must  not  lose  sight  of  the  fact  that  death  in  police

custody is perhaps one of the worst kind of crimes in a civilized society,

governed by the rule of law and poses a serious threat to an orderly civilized

society.  Torture in custody flouts the basic rights of the citizens recognized

by  the  Indian  Constitution  and  is  an  affront  to  human  dignity.   Police

excesses and the maltreatment of detainees/under- trial prisoners or suspects

tarnishes  the  image  of  any  civilised  nation  and  encourages  the  men  in

‘Khaki’ to consider themselves to be above the law and sometimes even to

become law unto themselves.  Unless stern measures are taken to check the

malady of the very fence eating the crops, the foundations of the criminal

justice delivery system would be shaken and the civilization itself  would

risk the consequence of heading, towards total decay resulting in anarchy

and authoritarianism reminiscent of barbarism. The courts must, therefore,

deal with such cases in a realistic manner and with the sensitivity which

they deserve, otherwise the common man may tend to gradually lose faith in

the efficacy of the system of judiciary itself, which, if it happens, will be a

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sad day, for any one to reckon with.                         

12. In view of the fact  that  sanction for prosecution has been granted,

charge sheet had been filed and cognizance had been taken, we feel that no

further direction at present is necessary. It is needless to say that if at any

point of time, evidence surfaces before the concerned Court to show that

some other offences appear to have been committed, necessary orders can

be passed. We are not for the present accepting the prayer for compensation

because that would depend upon the issue as to whether there was custodial

death.  The writ petition is accordingly disposed of. We make it clear that

we  have  not  expressed  any  opinion  on  the  truth  or  otherwise  of  the

allegations made and which will be considered by the concerned court.   

………………………………J. (Dr. ARIJIT PASAYAT)

……………………………..J. (ASOK KUMAR GANGULY)

New Delhi, February 3, 2009

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