Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9086 of 2021 Applicant :- Digvijay Prasad Pandey Opposite Party :- State of U.P.
Counsel for Applicant :- Shailendra Nath Tiwari Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for anticipatory bail on behalf of the applicant, Digvijay Prasad Pandey in connection with Case Crime No. C-37 of 1997, under Sections 364, 304 and 506 IPC, Police Station Phoolpur, District Varanasi.
2. Heard Mr. Shailendra Nath Tiwari, learned Counsel for the applicant and Mr. Shashi Shekhar Tiwari, the learned A.G.A. for the State.
3. The submission of the learned Counsel for the applicant is that the informant's father died in police custody due to a severe heart attack after his arrest in connection with Case Crime no.103 of 1997, under Section 406 IPC, Police Station Kotwali, District Shahdol (MP). It is pointed out that the last mentioned case was registered at the instance of one Suresh Chandra Agrawal, a transporter of Madhya Pradesh, alleging that 251 bundles of papers, weighing above 12462 kilograms loaded at the Orient Mill on Truck bearing registration no. UHW 1235 for Laxmi Traders, Seth Gali, never reached destination. The truck was driven by the informant's father, Om Prakash Gupta @ Gorakhnath. It is alleged that Om Prakash @ Gorakhnath was arrested near Bio Harideol, District Shahdol (MP) with a different number plate and different consignment, where Om Prakash was taken in custody on 01.03.1997 at 3:15 p.m. At that time, the accused was carrying a consignment of coal. An entry about arrest of Om Prakash Gupta was made by the Investigating Officer, Police Station Kotwali, Shahdol on 01.03.1997. It is said that in the lockup, he has a severe heart attack the same day that he was confined. The police personnel rushed him to the District Hospital, Shahdol at about 9:00 p.m. He passed away during treatment due to acute myocardial infarction and peripheral circulatory failure. It is urged that he suffered a heart attack when he was proceeding to the police station toilet.
4. It is submitted that after investigation by the police, final report was submitted in the matter on 23.10.198. A protest was filed by the informant, Sanjay Kumar Gupta on 30.01.2001. The protest was followed by an affidavit dated 15.03.2001, carrying allegations against the police personnel of Police Station Kotwali, District Shahdol (MP) that they had abducted his father and killed him in police custody. The Chief Judicial Magistrate, on the protest petition of the informant, rejected the final report and issued process summoning the accused to stand their trial.
5. The order of the Chief Judicial Magistrate, on the basis of various reasons, which may not be of much importance here, was put to challenge vide Application u/s 482 nos.24013 of 2007 and 24145 of 2007, besides Application u/s 482 no.22539 of 2007, asking this Court to quash the proceedings against the accused, including the applicant. An order of interim stay appears to have been passed on 27.08.2012. It appears that the order was not transcribed. When the case was listed before the appropriate Bench for re-hearing, an interim order was granted on 14.03.2013, till the next date of listing.
6. The order of stay passed by this Court was challenged by the informant, Sanjay Kumar Gupta vide Writ Petition (Criminal) no.8 of 2018. The Supreme Court vide order dated 23rd September, 2020 vacated the interim stay order dated 13.09.2007 passed in Application u/ s 482 No.22539 of 2007 and directed the Chief Judicial Magistrate, Varanasi to proceed with the matter. Thereafter, all the three Application u/s 482 nos.22539 of 2007, 24013 of 2007 and 24145 of 2007 were disposed of vide order dated 08.10.2020, in terms of the order of the Supreme Court in Writ Petition (Criminal) no.8 of 2018. The order of this Court dated 08.10.2020 was challenged by one of the co-accused, R. Rajan before the Supreme Court vide Special Leave Petition (Criminal) no.5499 of 2020, which was dismissed vide order dated 19.11.2020.
7. It is submitted that, faced with coercive processes in the pending cases, the co-accused applied for anticipatory bail. It is argued by the learned Counsel for the applicant that co-accused, R. Rajan has been granted anticipatory bail vide order dated 03.02.2021 by a coordinate Bench of this Court passed in Criminal Misc. Anticipatory Bail Application u/s 438CrPC No.9211 of 2021, whereas co-accused Shankhdhar Dwivedi has been granted anticipatory bail vide order dated 03.02.2021 passed in Criminal Misc. Anticipatory Bail Application u/s 438CrPC No.1195 of 2021.
8. Learned Counsel for the applicant says that co-accused Shankhdhar Dwivedi was the Investigating Officer and a Sub-Inspector, whereas the applicant was mere a constable. He argued that the two co- accused being extended the indulgence of anticipatory bail, the applicant is entitled to the same relief on the plea of parity, if nothing else.
9. Learned A.G.A. has opposed the prayer.
10. This Court has perused the records. The First Information Report lodged in the case through an order of the Magistrate under Sections 156(3) Cr.P.C. shows that the informant's father was arrested on 28.02.1997 in the wee hours of the morning (4:00 O'clock) by Shankhdhar Dwivedi, Sub-Inspector, Police Station Kotwali, District Shahdol (MP) and police constables, Sher Ali, Digvijay Prasad Pandey (the present applicant) and Jagat Singh accompanied by Suresh Prasad Agrawal and Mahesh Chandra Agrawal, transporters of Shahdol, besides some unknown men, who had come along. The informant’s father was called and forcibly bundled into a Commander Jeep bearing registration no. 18B 2399. A telegram was sent to the Senior Superintendent of Police, Varanasi, but to no avail. In the morning of 02.03.1997, a constable from Police Station Phoolpur, District Varanasi came over to the informant's house and told him that they had received wireless message from Shahdol that the informant's father had died due to a heart attack. A perusal of the postmortem report shows, without saying much about its contents lest it prejudice the accused during trial, that the deceased sustained the following two antimortem injuries:
I. Contusion margins reddish blue centre place of 6cm x 2cm transversely placed over lateral aspect of the lower part of the left thigh; and,
II. Contusion margin reddish blue centre place of 5cm x 2cm was present just above injury no.I.
The time of death was estimated as one within 24 hours of the autopsy, that was scripted on 02.03.1997.
11. Their Lordships of the Supreme Court vide order dated 23rd September, 2020 passed in Writ Petition (Criminal) no.8 of 2018, in vacating the orders passed by this Court in Applications u/s 482, have remarked thus:
“The facts of the case make a shocking reading as the allegation is of custodial death of the father of the petitioner - Late O.P. Gupta which, as per the medical report, occurred on 01.03.1997 after his arrest from Varanasi on 28.02.1997. The case was sought to be made out as one of heart attack, but the petitioner relies upon the medical report of his father dated 21.02.1997 which shows that he had a normal cardiac condition. This also did not substantiate the fact that there were ante mortem injuries on the body. On the petitioner moving an application under Section 156(3) of the Cr.P.C., the SHO, Phoolpur, Varanasi (U.P.) was directed to register an FIR and investigate the matter.”
12. It has further been remarked by their Lordships:
“The aforesaid summoning order was challenged by respondent No.2 before the Allahabad High Court in Criminal Miscellaneous Application No.22539 of 2007 for stay of proceedings of the case being Case No.6497 of 2007 in which notice was issued and an interim stay order was granted on 13.09.2007. The matter has continued in that position since then for the last 13 years with the criminal proceedings stayed. In fact, at one stage, orders were reserved on the proceedings on 14.02.2013, but were again listed for rehearing on 06.03.2013, which till date has not produced results.”
13. The following orders were made after the above quoted observations:
We thus, vacate the order dated 13.09.2007 passed in Criminal Miscellaneous Application No.22539 of 2007 by the Allahabad High Court and direct the Chief Judicial Magistrate, Varanasi to proceed with the matter in accordance with law.
We consider appropriate also to direct that this order be placed before the Chief Justice of the Allahabad High Court for administrative action as to why such a situation came to pass and why the trial Court order remained stayed for 13 years by an ad interim order in case of a custodial death. The Chief Justice may call upon the Registrar of the High Court to look into the matter and thereafter a report be submitted on the Administrative Side before this Court.
The writ petition is allowed in the above terms leaving parties to bear their own costs.
Needless to say, in view of this long passage of time of 13 years, the trial court will proceed with the trial almost on a day to day basis as far as possible in the given circumstances and endeavour to conclude the trial within a period of one year from its commencement.”
14. This Court is not oblivious of the fact that the case has not so far been committed to the Court of Sessions, as all the accused have not surrendered; may be those who have been granted anticipatory bail, might have appeared and their trial separated or still lingering on at the initial stage. Prima facie, it is a case of brazen abuse of powers entrusted to the policemen by the State to be discharged for the good of society. The applicant, prima facie, cannot be said to be a person who has acted within the domain of his office. It is a case, where a man taken to the police station, has died in police custody after suffering two injuries. Again as earlier recorded, not much need be said at this stage, lest it prejudice the present applicant or the other accused at the trial, but suffice it to say that in the considered opinion of this Court, the present matter could not even be on the fringes of a case, where indulgence of anticipatory bail may be extended to the applicant. So far as the plea of parity urged on behalf of the applicant is concerned, this Court is not persuaded to accept it in view of what has been said above.
15. The criminal misc. anticipatory bail application is hereby rejected.
16. Let this order be communicated to the learned Sessions Judge, Varanasi and the Chief Judicial Magistrate, Varanasi through the learned Sessions Judge, Varanasi by the Joint Registrar (Compliance) by Monday i.e. 17.05.2021.
Order Date :- 13.5.2021 Anoop