IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2183/2014(GM-RES) BETWEEN:
MR. OWAIS SABIR HUSSIAN, S/O K. M. HUSSIAN, AGED ABOUT 26 YEARS OCC:STATIONARY BUSINESS R/AT NO. 116, 1ST CROSS, 1ST MAIN, R. K. GARDEN, BEHIND GOWRI APARTMENTS NEW BEL ROAD, BANGALORE-560094. ... PETITIONER (BY SRI M. R. BALAKRISHNA, ADVOCATE) AND:
1. THE GOVERNMENT OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE-560001 2. THE HOME SECRETARY GOVT. OF KARNATAKA VIDHANA SOUDHA, BANGALORE-560001.
3. THE DIRECTOR GENERAL & INSPECTOR GENERAL OF POLICE NRUPATHUNGA ROAD, BANGALORE-560001.
4. THE COMMISSIONER OF POLICE INFANTRY ROAD, BANGALORE-560001.
5. THE DEPUTY COMMISSIONER OF POLICE CENTRAL CRIME BRANCH N. T. PET, BANGALORE-560002.
6. D. DEVARAJA S/O DYAVARAPPA AGED ABOUT 43 YEARS FORMER DEPUTY COMMISSIONER OF POLICE CCB, OFFICE OF THE POLICE COMMISSIONER INFANTRY ROAD, BANGALORE-560001. PRESENTLY WORKING AS SUPERINTENDENT OF POLICE DCRE, GULBARGA-585101.
7. SIDDAPPA, FATHERS NAME NOT KNOWN AGED ABOUT 50 YEARS ASSISTANT COMMISSIONER OF POLICE, CCB, N. T. PET, BANGALORE-560002. PRESENTLY WORKING AS ASST. COMMISSIONER OF POLICE BANASWADI SUB DIVISION, BANGALORE-560025.
8. PUNEETH KUMAR R, S/O SRI RAJENDRAN AGED ABOUT 32 YEARS POLICE INSPECTOR (H & B) CCB, N T PET, BANGALORE-560002. PRESENTLY WORKING AS POLICE INSPECTOR VIDYARANYAPURA POLICE STATION BANGALORE-560094.
9. DEEPAK FATHER’S NAME NOT KNOWN MAJOR IN AGE SUB INSPECTOR OF POLICE (H & B), CCB, N. T. PET, BANGALORE-560002.
10. HANUMESHI, FATHER’S NAME NOT KNOWN MAJOR IN AGE POLICE CONSTABLE CCB, N. T. PET, BANGALORE-560002.
... RESPONDENTS (BY SRI Y.D. HARSHA, AGA FOR R1 TO R5;
SRI P. PRASANNA KUMAR, ADVOCATE FOR R6 TO R9; VIDE ORDER DATED 03.12.2015 NOTICE TO R10 IS HELD SUFFICIENT) … THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE GOVERNMENT OF KARNATAKA TO PAY COMPENSATION OF RS.25.00 LAKHS TO THE PETITIONER FOR THE CUSTODIAL TORTURE COMMITTED BY ERRING OFFICIALS, THE RESPONDENT Nos.6 TO 10 THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed the present Writ Petition for a writ of mandamus directing 1st respondent – Government of Karnataka to pay compensation of Rs.25.00 lakhs to him for the custodial torture committed by erring officials – respondent Nos.6 to 10 and to direct respondent Nos.2 to 4 to conduct departmental enquiry against respondent Nos.6 to 10 for their omission and commission and initiate contempt proceedings against respondent Nos.6 to 10 for willfully disobeying the guidelines laid down by the Hon’ble Apex Court in the matter of D.K.BASU VS. STATE OF WEST BENGAL reported in AIR 1997 SC 610.
2. It is the case of the petitioner that he is a small time businessman hailing from very respectable family and his father was a freedom fighter. He has three brothers and one sister. His elder brother is well known for whistleblower and his sister is a practicing advocate in the High Court of Karnataka, Bangalore. His family is known for integrity and honesty in the public life and naturally they are very active in anticorruption agitations. It is further contended that his elder brother is a well known social activist and anticorruption crusader and fighting against the corruption for the past 20 years. He is the founder of anticorruption prevailing in all walks of life. He is the petitioner in Infamous Sampangi bribery case wherein the Hon’ble Special Court for Lokayuktha, Bangalore has convicted the former sitting MLA of KGF Mr.Y.Sampangi under the provision of Prevention of Corruption Act. He is either complainant or witness in high profile CBI cases and it is further contended that he is one of the witnesses in sensational 2G spectrum case which is registered by the CBI against the mighty politicians and top bureaucrats.
3. It is the further case of the petitioner that due to his constant fight against corruption, he and his family members have invited number of enemies from the people, who are in power as well as corrupt police officials. Considering serious threat perception by those people to the brother of complainant and their family, this Court has directed the Government of Karnataka to provide ‘Y’ category security round the clock. Accordingly, they have been provided with ‘Y’ category security and it is still continued. It is further contended that the petitioner and his family members have collected number of documents pertaining to the nefarious activities of the some of the Police Personnel, Bangalore City and those documents were kept by them at their house. Further it is stated that the father of the complainant sent a memorandum to the then Chief Justice of High Court of Karnataka and in turn the office of the Hon’ble Chief Justice sent a letter stating that “under Chapter XII Rule 3 of High Court of Karnataka Rules, letters cannot be accepted and treated as petition” and further it was informed that petition can be filed in accordance with the High Court of Karnataka Rules, if he so desires.
4. It is the further case of the petitioner that in order to settle score against the petitioner’s family and to destroy those documents on 27.02.2013 at about 4.18 p.m., respondent Nos.6 to 10 attached to the CCB and other plain cloth police personnel attached to the Sanjayanagar Police Station barged into the house of the petitioner claiming that they are from CCB. At that time, the gunman Abhinandan P.C.No.1317 was in the main gate of the house and his father, brother and sister were in the ground floor and the petitioner was in the first floor. On seeing large number of police personnel, all of a sudden, he was panicked and hence he locked himself in a room, but the police forcibly broke open the door and the respondent Nos.6 to 10 and other police personnel beat him up black and blue by hockey sticks and abused by using filthy language.
They also damaged the window plane of the house and he was forcibly taken away to an undisclosed location without informing anybody and detained illegally. They have also taken entire documents which were in his custody.
5. It is further contended by the petitioner that immediately after the said incident, father of the petitioner had sent a telegram dated 27.02.2013 to the Hon’ble Chief Justice of High Court of Karnataka narrating the illegal detention of his son by the CCB police and the said telegram was received by the office of the Hon’ble Chief Justice on 28.02.2013 and same was treated as Suo-Moto Habeas Corpus Petition No.54/2013 and subsequently, the father of the complainant also filed Writ Petition No.57/2013 against the police personnel. It is his further contention that W.P.No.54/2013 (HC) and W.P.No.57/2013 were listed before the Court on 04.03.2013 and respondent No.8-
Puneeth Kumar, Police Inspector had appeared before the Court and filed an affidavit stating that he had arrested the petitioner on 27.02.2013 at about 6.00 p.m., in connection with Crime No.12/2012 on the file of Ulsoor Police Station and was produced before the I ACMM, Bangalore. The petitioner was then taken into police custody till 04.03.2013 for interrogation. Later, this Court on filing of an affidavit stating that as per law, respondent No.8 arrested the petitioner and produced him before the trial court, closed the Writ Petition (HC) with a direction to the trial Court to hold an enquiry, if any application is filed by the petitioner against the police personnel.
6. It is the further case of the petitioner that when he was produced before the learned Magistrate, he was handcuffed and unable to walk and when questioned by the learned Magistrate, he complained the ill-treatment meted out to him by the CCB police when he was in their police custody. It is further contended that from 27.02.2013 to 04.03.2013, he was mercilessly beaten up by the respondents at the CCB office at their whims and assaulted him by revolver on his head, thereby, he had sustained head injury and rest of the respondents also assaulted him all over his body by hand as well as by hockey sticks and electric shocks had been administered to him on his feet and they sprayed some spray into his eyes repeatedly when he was in their custody. Apart from all these custodial torture, he was not given proper food and medical treatment on time and wrongfully confined beyond 24 hours by giving him custodial torture. Respondent Nos.6 to 10 have also forcibly taken his confession statement with regard to the crime for which he is not a party and no way connected to Crime No.12/2012 and etc. Therefore, he has filed the present Writ Petition seeking compensation of Rs.25.00 lakhs from the Government of Karnataka and to conduct departmental enquiry against respondent Nos.6 to 10, etc.
7. Respondent Nos.6, 8 and 9 have filed objections and contended that respondent No.6 was then discharging his duties as Deputy Commissioner of Police, CCB Police, Bangalore, while respondent No.8 herein at the alleged time of offence was working as Inspector of Police (Homicide & Burglary Squad), CCB Bangalore and Respondent No.9 was discharging his duty as Police Sub-Inspector (Homicide & Burglary Squad), CCB Bangalore and respondent No.10 was a Police Constable. While discharging their respective duties, the Ulsoor Police Station, Bangalore had registered a case in Crime No.12/2012 for offence under Section 381 of IPC. Subsequently, vide order dated 10.08.2012, the Commissioner of Police had transferred the matter to CCB, Bangalore. Under a memo dated 25.08.2012, the entire case papers were transferred to CCB. Subsequently, respondent Nos.8 and 9 began their investigation and found that the petitioner along with his family members were involved in 13 different crimes apart from the Crime No.12/2012. The details of which read as under:-
CASES REGISTERED AGAINST PETITIONER
6 03.02.2012 High Grounds, Bangalore 7 21.03.2012 Andersonpet, KGF 57/2012 323, 324, 341, 353, 506(B) 27/2012 107
8. Respondent Nos.8 and 9, who proceeded with investigation, received a tip about the whereabouts of the petitioner and accordingly, conducted a raid on House No.116, 1st Floor, 1st Cross, New BEL Road, Bangalore on 27.02.2013. It is further contended that when the petitioner was informed that he was wanted in Crime No.12/2012, he has attempted to flee and in the process, he has slipped and sustained injuries on his head. It is submitted that in the raid, fabricated documents, an iphone and other incriminating documents were seized and subsequently, the petitioner came to be arrested by the respondent Nos.8 and 9 by a seizure mahazar dated 27.02.2013 as per Annexure-R4. It is further submitted that the Suo-Moto habeas corpus and Writ Petition filed by the petitioner’s father came to dismissed on 08.03.2013 and this Court directed the petitioner’s father to seek appropriate remedy before the jurisdictional Magistrate. It is further submitted that the petitioner was wanted in various crimes and therefore, the investigation was permitted to take its own course. It is further contended that the petitioner was produced before the learned Magistrate on 28.02.2013, on being categorically questioned by the learned Magistrate in the presence of the petitioner’s counsel, if the petitioner was subjected to any brutality or ill-treatment, the same has been denied by the petitioner and subsequently, he was remanded to the judicial custody for further investigation. During the course of investigation, the petitioner has made voluntary statements about the car stolen by him in Crime No.110/2013, which aided the respondents in seizing the vehicle.
9. It is further submitted by respondent Nos. 8 and 9 that on 04.03.2013 when the petitioner was produced before the learned Magistrate, he complained of ill-treatment and the learned Magistrate was pleased to send the petitioner immediately to Jayadeva Hospital and Victoria Hospital for medical examination. The medical records reveals that there were no abnormalities or fresh injuries as claimed by the petitioner. It is further contended that the petitioner and his family members were wanted in different crimes registered in different jurisdictions. It is further submitted that undoubtedly, the petitioner is entitled to his right under Article 22(1) of the Constitution and other human rights and the same was diligently protected by the respondents. It is further submitted that respondent Nos.6 to 10 were executing their duties and investigating the matter and have complied with the guidelines laid down by the Hon’ble Supreme Court in the case of D.K.BASU vs. STATE OF WEST BENGAL. The respondent Nos.6 to 10 were acting within the course of investigation and therefore, there is no need for conducting a departmental enquiry against the respondent Nos.6 to 10 or for compensating the petitioner with Rs.25.00 lakhs. Hence, sought for dismissal of the Writ Petition.
10. I have heard the learned Counsel for the parties to the lis.
11. Sri M.R. Balakrishna, learned Counsel for the petitioner contended that respondent Nos.6 to 10 without any search warrant barged into the house of the petitioner and the police personnel beaten him up black and blue by hockey sticks, abused him by using filthy language, damaged the window plane of the house and he was forcibly taken away to an undisclosed location without informing anybody and detained him illegally. He would further contend that respondent Nos.6 to 10 have not followed the guidelines issued by the Hon’ble Supreme Court in the case of D.K.Basu –vs- State of West Bengal reported in AIR 1997 SC 610 and hence they are liable to pay compensation of Rs.25.00 lakhs. He also contended that departmental enquiry has to be initiated against respondent Nos.6 to 10.
12. Per contra, Sri P. Prasanna Kumar, learned Counsel for respondent Nos.6 to 9 and Sri Y.D. Harsha, learned Additional Government Advocate while justifying their detailed statement of objections contended that family members of the petitioner are involved in several criminal cases and respondents- police authorities have discharged their duties during the course of official duty. There was no ill-treatment given to the petitioner as contended by him and the present writ petition is nothing but discouraging respondent Nos.6 to 10 in discharging their duties in accordance with law and the respondents have followed the guidelines issued by the Hon’ble Apex Court in the case of D.K. Basu. Therefore, they sought to dismiss the Writ Petition.
13. Sri Y.D. Harsha, learned Additional Government Advocate further contended that the very writ petition filed for determination of compensation of Rs.25 lakhs is not maintainable. There are disputed facts which cannot be decided by this Court under Articles 226 and 227 of the Constitution of India and sought to dismiss the writ petition. In support of his contentions, he relied upon the judgment of the Hon’ble Supreme Court in the case of Sube Singh –vs- State of Haryana reported in (2006) 3 SCC 178 wherein at paragraphs - 46, 47, 50 and 51.
14. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record carefully.
15. It is the specific case of the petitioner that respondent Nos. 6 to 10 Police Authorities have illegally detained the petitioner and tortured and therefore, he is entitled for payment of compensation of Rs. 25 lakhs. Respondent Nos. 6 to 10 have filed objections and have denied all other averments and contended that there are thirteen criminal cases pending against the petitioner and his family members. They also have denied the torture given to the petitioner. It is also stated in the objections that even though they had produced the petitioner before the learned Magistrate, he never disclosed to the learned Magistrate that he had been tortured by them. It is specially contended by the respondents in the statement of objections that on 4.3.13 when the petitioner was produced before the learned Magistrate, he complained about his ill- treatment by the respondents-police. The learned Magistrate was pleased to send the petitioner immediately to the Jayadeva and Victoria Hospitals for medical examination. The medical examination records depict that there were no abnormalities or fresh injuries as claimed by the petitioner.
16. Considering the material facts stated supra, there is no admission on the part of the respondents that they have tortured the petitioner. They have denied all the averments made in the writ petition and contended that there are disputed facts which cannot be without there being any evidence. On careful perusal of the averments made in the Writ Petition and objections filed by the respondents as well as the arguments advanced, it clearly indicates that there are disputed facts which require detailed enquiry and this Court cannot venture to record the evidence on the allegations made and denied by the respondents by filing the detailed objections. My view is fortified by the judgment of the Hon’ble Supreme Court in the case of Sube Singh’s case Vs. State of Hariyana reported in (2006) 3 SCC 178 wherein at paras 46, 47, 50 and 51 held as under:
“46. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.
47. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier para are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. In State of MP vs. Shyamsunder Trivedi - 1995 (4) SCC 262, reiterated in ABDUL GAFAR KHAN and MUNSHI SINGH GAUTAM (supra),this Court observed :-
"Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available...... 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.......... The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact- situations and the peculiar circumstances of a given case....., often results in miscarriage of justice and makes the justice delivery system a suspect. 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 this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."
50. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the CBI and ensuring that the Police Officers named are prosecuted. The law will have to take own course.
51. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further reliefs/directions are called for.
Therefore, this is not a fit case for award of compensation by this Court and it is for the petitioner to approach the competent Civil Court to establish his case based on the oral and documentary evidence.
17. For the reasons stated above, petitioner has not made out any legally enforceable statutory right to issue writ of mandamus directing the respondents/State Government to pay compensation of Rs.25 lakhs in exercise of powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is disposed off with liberty to the petitioner to approach the competent Civil Court in accordance with law.
Ordered accordingly.
Sd/- JUDGE Nsu/-