REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CRL) No.6408 of 2006

Jaywant P. Sankpal         … Petitioner  Vs.

Suman Gholap & Ors.   … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. The Petitioner herein has challenged the order  

of the Bombay High Court dismissing the Criminal  

Writ  Petition  No.1839  of  2005,  in  which  he  had  

challenged  the  order  dated  19th October,  2004,  

passed  by  the  Maharashtra  State  Human  Rights

Commission  in  Case  No.1912/2002/3258.  The  

complainant in the said case was one Smt. Suman  

Sriram Gholap, the Respondent No.1 herein.  In the  

said complaint, the State of Maharashtra was made  

the  Respondent  No.1  through  the  Commissioner  of  

Police, Brihan Mumbai.  The Respondent Nos.2, 4 and  

5  were  police  personnel  attached  to  Shahunagar  

Police Station, Mumbai-17.   The Petitioner herein  

was made the third Respondent in the said complaint  

case.  It was the case of the complainant that the  

Respondents had violated the human rights of one  

Baban, the son of the complainant, within the scope  

of Section 12(a) of the Protection of Human Rights  

Act, 1993.  

2. The facts revealed in the complaint and which  

came to light during the hearing thereof by the  

Maharashtra State Human Rights Commission, Mumbai,  

hereinafter  referred  to  as  “the  Commission”,  

indicate that the complainant, who is a widow, had  

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two  sons,  one  Kisan  and  the  other  Baban.   She  

resides in Sanjay Gandhi Nagar Zopadpatti, Matunga,  

and  works  as  a  domestic  servant  to  earn  her  

livelihood.  Her elder son, Kisan, lives with his  

family at Vashi at New Mumbai and the complainant  

lives  with  her  unmarried  younger  son,  Baban,  at  

Matunga. In 1998, Baban was arrested by the Dharavi  

Police in connection with a case which was tried by  

the  Court  of  Sessions  and  he  was  acquitted  in  

respect  thereof  on  2nd May,  2002.   Thereafter,  

various cases were lodged against Baban and after  

his  acquittal  in  the  case  filed  by  the  Dharavi  

Police, he left Matunga and went to reside with his  

elder brother at Vashi where he earned a living by  

selling fruits as a street vendor. On weekends he  

used to come to see the complainant and on 30th  

June, 2002, he had come to Matunga to meet the  

complainant.  While he was at his mother’s place of  

residence,  the  Respondent  No.4  before  the  Human  

Rights Commission, ASI K.R. Kubel, along with some  

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other  police  personnel,  came  and  asked  Baban  to  

accompany  them  to  the  police  station.   He  was,  

however, released on the next day.  

3. On 8th August, 2002, at about 8.00 a.m., Baban  

had  gone  to  the  stall  of  one  Abbas  Bhai.  

According to the complainant, he was assaulted and  

injured by the said Abbas Sayyed Ali Kadri @ Abbas  

Ali.    The  complainant  took  him  with  bleeding  

injuries to the police station where she was asked  

to wait by the Duty Officer.  In the meantime, the  

said  Abbas  Ali  and  his  three  brothers  and  some  

women  came  to  the  police  station  and  soon  

thereafter  the  police  personnel  came  out  and  

started  assaulting  Baban.  The  petitioner  herein  

told the complainant to leave the police station.  

It  is  the  complainant’s  case  that  she  was  also  

abused  and  forcibly  removed  from  the  police  

premises while Baban was detained.  An hour later,  

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the police personnel took Baban to hospital while  

the complainant went home.   

4. It is also the complainant’s case that when in  

the  evening  she  went  to  the  police  station  to  

enquire about her son, she saw that he had been  

placed in the police lockup.  She was thereafter  

informed by Havildar Kubel that her son would not  

be  released  from  the  police  station  and,  

accordingly, next day she went to the Court of the  

Magistrate  at  Bandra,  where  Baban  was  to  be  

produced  for  the  purpose  of  remand.  It  was  

mentioned by the complainant in her complaint that  

she had been threatened by the police officers in  

question  not  to  reveal  the  incidents  of  the  

previous  day,  but  when  Baban  was  produced  she  

noticed that he had bandages all over his body and  

there were injuries on his back and hand.   The  

complainant  was  threatened  not  to  make  any  

complaint to the Court as otherwise her son would  

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be involved in other crimes. Subsequently, Baban  

was released on bail on 6th September, 2002, but  

was, once again, taken to the police station on 30th  

September, 2002, and was assaulted allegedly on the  

ground that he had assaulted Abbas Ali’s son.   It  

was the grievance of the complainant that instead  

of recording the complaint made by her or her son  

against  Abbas  Ali,  the  police  registered  a  case  

against her son at the behest of Abbas Ali and  

illegally detained him in policy custody till he  

was released on bail.  She also submitted that the  

police had been harassing her and her sons without  

any cause or justification and appropriate action  

should, therefore, be taken against them.  

5. The  complainant’s  allegations  were  fully  

supported by her son Baban who reiterated that he  

had been ill-treated by the police personnel.

6. In  reply  to  the  charges  against  the  

Respondents,  all  the  Respondents  filed  their  

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respective replies denying the allegations, and in  

particular, in the report submitted by the Deputy  

Commissioner of Police, Zone V, Worli, Mumbai, it  

was mentioned that the complainant’s son, Baban,  

had gone to the shop of Abbas Ali on 8th August,  

2002, and demanded a sum of Rs.5,000/- as ‘hafta’.  

On  Abbas  Ali’s  refusal  to  pay  the  same,  Baban  

assaulted him with a razor and threatened him that  

he would come again the next day.  After being  

treated at Sion Hospital, the said Abbas Ali lodged  

a complaint with the Shahunagar Police Station, on  

the  basis  of  which  Crime  No.99  of  2002  was  

registered against Baban under Sections 387 and 324  

IPC, in pursuance whereof Baban was arrested.  The  

report of the Deputy Commissioner of Police also  

revealed that Baban was a habitual offender against  

whom  several  criminal  cases  had  been  initiated  

under Sections 326, 114, 379, 452, 342 and even 376  

IPC between 1992 and 1995 with the Dharavi Police  

Station.  It was also pointed out that proceedings  

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for detention had also been commenced against Baban  

under  the  Maharashtra  Preventive  of  Dangerous  

Activities  of  Slumlords,  Bootleggers  &  Drug  

Offenders Act, 1981.  

7. As far as the police personnel, including the  

petitioner  herein,  are  concerned,  they  had  only  

arrested  the  complainant’s  son  on  the  complaint  

made by Abbas Ali, who is a food grain merchant at  

the  Gandhi  Nagar  Labour  Camp,  Mumbai,  under  

Sections 387 and 324 IPC and they had acted on the  

instructions  of  their  superiors.   Reference  was  

also made to an order of detention which had been  

passed against Baban on 27th February, 2002, and the  

various other crimes registered against him and his  

brother Kisan with the Dharavi Police Station.  

8. On  the  basis  of  the  said  allegations,  a  

complaint came to be filed by the Respondent No.1  

before  the  Maharashtra  State  Human  Rights  

Commission,  Mumbai,  alleging  that  instead  of  

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recording  the  complaint  made  by  her  or  her  son  

against  Abbas  Ali,  the  Petitioner  and  the  

Respondent Nos.3 to 5 showed undue indulgence to  

the said Abbas Ali by registering a case against  

her son at the behest of Abbas Ali and illegally  

detained him in police custody till he was released  

on bail.  Upon notice being served, the Petitioner  

herein and the other Respondents appeared before  

the  Commission  and  filed  their  respective  

affidavits, which were considered in detail by the  

Commission.   The  Commission  noticed  that  no  

affidavit had been filed on behalf of Abbas Ali nor  

was  any  oral  evidence  adduced  on  his  behalf.  

Furthermore,  no  attempt  was  made  by  any  of  the  

police officers, including the Petitioner herein,  

to summon the witnesses to the occurrence according  

to  their  version.   Ultimately,  the  Commission  

observed as follows :-

“On appreciation of the discrepancies and  contradictions  in  unfolding  the  alleged  

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incident either of extortion or assault by  Baban  on  Abbas  Ali,  it  seems  that  the  entire  version  presented  in  defence  is  nothing but a concoction.”

9. On the other hand, the complainant and her son  

Baban  had  stated  that  when  they  rushed  to  the  

police  station  to  lodge  a  complaint,  they  were  

asked to wait outside.   After some time, Abbas Ali  

and his brothers and some women came to the police  

station  and  they  were  entertained  first  by  the  

police  and  though  Baban  was  the  victim  of  the  

assault, he was illegally arrested.  The Commission  

also  disbelieved  the  defence  of  the  police  

personnel  that  Baban  inflicted  injuries  with  a  

razor  on  himself  having  regard  to  the  medical  

evidence of Dr. Raju Patel of the Lokmanya Tilak  

General  Hospital,  which  did  not  support  such  

theory.   The  Commission  also  took  note  of  the  

Doctor’s  evidence  that  Baban  had  complained  of  

chest pain and had been removed to hospital at 2.30  

a.m.   He was treated for tenderness over the left  

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anterior chest, which indicated hairline fracture  

on his ribs.   In the said facts, the Commission  

had no hesitation in holding that there had been  

violation of Baban’s human rights at the hands of  

the Respondent Nos.3, 4 and 5 and the Petitioner  

herein.  On account of the above, the Commission  

recommended as follows :-

“(a)the State Government shall pay to the  complainant on behalf of the victim of  Police atrocity a sum of Rs.45,000/-  as compensation and recover the same  from  the  respondents  PSI  Shri  G.G.  Navele,  PSI  Shri  J.P.  Sankpal,  PSI  Shri K.R. Kubal equally;  

(b) that the State Government shall submit  within six seeks from the receipt of  these directions its compliance report  to the Commission.”

10. The said order of the Commission was challenged  

by  the  Petitioner  herein  before  the  Bombay  High  

Court,  which  dismissed  the  same  by  the  impugned  

order dated 30th August, 2006, indicating that since  

the  State  of  Maharashtra  had  not  challenged  the  

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order  dated  19th October,  2004,  passed  by  the  

Commission  and  had  also  complied  with  the  same,  

there  was  no  necessity  of  entertaining  the  writ  

petition, particularly, on account of the fact that  

an earlier petition filed by the Petitioner herein  

where  he  had  sought  relief  challenging  the  said  

order came to be withdrawn.    

11. Appearing  for  the  Petitioner,  Mr.  K.N.  Rai,  

learned Advocate, submitted that the antecedents of  

Baban, the son of the Respondent No.1 herein, would  

clearly go to show that he was a habitual offender  

and  had  been  involved  in  various  criminal  cases  

registered against him as he was creating a reign  

of terror in the minds of the public in the Matunga  

Railway Colony, Sanjay Gandhi Nagar, Kunchi Kurve  

Nagar,  Matunga  Labour  Camp  and  areas  adjoining  

thereto,  within  the  jurisdiction  of  Dharavi  and  

Shahunagar  Police  Stations,  and  had  even  been  

detained under the Maharashtra Preventive Detention  

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Act by the Commissioner of Police, Greater Mumbai,  

which  order  has  been  confirmed  by  the  Advisory  

Board.  Mr. Rai submitted that the Commission had  

overlooked the affidavits filed by the Petitioner  

and the Respondent Nos.3 to 5 as well as the report  

of  the  Deputy  Commissioner  of  Police,  Zone  V,  

Worli, Mumbai.  Mr. Rai submitted that aggrieved by  

the  recommendation  made  by  the  Commission,  the  

Petitioner had filed Writ Petition No.975 of 2005  

in the Bombay High Court which was withdrawn on  

account of the understanding given to him on behalf  

of the State of Maharashtra that it had decided not  

to implement the order passed by the Commission.  

Mr. Rai submitted that the same should not be taken  

into  consideration  while  considering  the  writ  

petition  which  had  subsequently  been  filed  

challenging the order of the Commission, since the  

earlier writ petition was withdrawn on the basis of  

an occurrence which never materialised.   

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12. Mr. Rai lastly submitted that there was nothing  

on record to indicate that Baban had actually been  

assaulted by the Petitioner or the Respondent Nos.3  

to 5, except for the allegations made by him and  

the  statement  made  by  the  doctor  that  he  had  

noticed certain tenderness over certain parts of  

Baban’s body.  Mr. Rai urged that having regard to  

the antecedents of Baban, the defence taken that he  

had inflicted injuries on himself with a razor in  

order  to  implicate  the  Petitioner  and  the  

Respondent Nos.3 to 5, could not be ruled out and  

ought not to have been rejected by the Commission.

13.  As  far  as  the  State  of  Maharashtra  is  

concerned,  it  has  been  submitted  that  the  

recommendation of the State Human Rights Commission  

had since been implemented and since the State had  

chosen  not  to  challenge  the  order  of  the  

Commission, no separate submission would be made on  

behalf of the State.  

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14. Having regard to the special emphasis laid by  

Mr. Rai on Baban’s antecedents, we have carefully  

considered the order of the Commission which was  

upheld by the High Court and we see no reason to  

differ  with  the  same.    There  is  sufficient  

material, which has been duly looked into by the  

Commission and the High Court that the son of the  

Respondent No.1 had been physically tortured while  

in custody in violation of the norms relating to  

custody  of  persons  arrested  or  detained  in  

connection with any offence.  It is not for us to  

appraise the evidence further since two forums have  

had a chance to look into the same.  Except for a  

bare  denial,  there  is  no  material  on  record  to  

refute the complaint of torture of Baban by the  

Petitioner and the Respondent Nos.3 to 5.  It is  

clear that for whatever reasons, which could also  

include his antecedents, he was treated differently  

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from Abbas Ali against whom he had come to make a  

complaint and ended up being the accused.  

15. In such circumstances, we are not inclined to  

interfere, either with the order of the Commission  

or the High Court, and the Special Leave Petition  

is, accordingly, dismissed.    

………………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (DR.MUKUNDAKAM SHARMA)

New Delhi Dated:28.07.2010

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