# Gyanesh Rai & Anr v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-21
- **Case number:** Criminal Misc. Writ Petition No. 11158 of 2015
- **Bench:** V.K. Shukla, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanesh-rai-anr-v-state-of-u-p-ors-43381
- **Pages:** 17

## Headnote

Constitution of India, Art.-226-custodian
torture-in spite of direction given under
Section 156(3) Cr.P.C.-no FIR lodgedCourt expressed its serious concern with
direction to lodge FIR and complete
investigation by Officer not below in
rank of Circle Officer-petition allowed.
Held: Para-24
Coupled with this, in the present case,
once such is the factual situation that is
so emerging that prima-facie there has
been custodial violence, then FIR ought
1242
 INDIAN LAW REPORTS ALLAHABAD SERIES
to have been lodged and investigation
ought to have been carried out. Here, we
find
that
despite
application
under
Section 156(3) Cr.P.C. being moved and
Superintendent of Police, Mau being
aware of the entire situation, till date,
FIR has not been lodged and no action
has been taken by undertaking free, fair
and impartial investigation, in view of
this, we proceed to pass an order asking
Superintendent
of
Police,
Mau
to
forthwith ensure that FIR is lodged
against erring police incumbents as per
the law laid down by Apex Court, in the
case of Lalita Kumari vs. Government of
U.P.
2014
(2)
SCC
1
and
the
investigation in question is carried out
under his supervision by an officer not
below the rank of Circle Officer, who will
proceed to carry out investigation in
free, fair and transparent manner.
Case Law discussed:
1997 (1) SCC 416; 1980 (3) SCC 70; 1985 (1)
SCC 552; 1993 (2) SCC 746; 1997 (1) SCC
416; 2003 (7) SCC 749; 2006(3) SCC 178;
2012 (1) SCC 10; 2012 (3) SCC Cr. 733; 2014
(10) SCC 635.

## Text

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3 All] Prem Singh Vs. The State Consumer Dispute Redressal Commission Lko & Ors.
1241
by a person who has held the office of
Judge of a High Court. It is thus, clear that
these forums are chaired by the persons
having occupied judicial offices. The
Consumer Protection Act in sub-sections
(4) to sub-section (7) of Section 13 clearly
provides that the District Consumer Forum
shall be deemed to be a civil court for the
purpose of Section 195, and Chapter XXVI
of the Code of Criminal Procedure, 1973.
The provisions of Code of the Civil
Procedure, to the extent indicated therein,
have been made applicable.
4. An appeal is preferred against any
order passed by the District Consumer
Forum to the State Commission. The
State
Commission
has
jurisdiction,
powers and authority which are to be
exercised by the Benches as constituted
under Section 16. The jurisdiction under
Section 17 is against appeals as also
against the complaints where the value of
the goods or services and compensation,
if any, claimed exceeds rupees twenty
lakhs but does not exceed rupees one
crore.
5. The power to be exercised by the
State Commission while deciding an
appeal also indicates that all such powers
are available in appeal which are available
to the District Forum and, therefore, the
status is that of the forums, which begins
with the district level organisation, that
has been described under Section 13 (5)
as being a civil court. Consequently, the
State
Consumer
Dispute
Redressal
Commission is the appellate court of the
District Forum.
6. This being the position and the
manner in which the State Commission is
to function, we are clearly of the opinion
that if a direction is required to be given
for expeditious disposal of an appeal then
the State Consumer Dispute Redressal
Commission would also fall within the
superintendence of the High Court under
Article 227 of the Constitution of India.
Consequently, a writ petition ought to be
filed under Article 227 of the Constitution
of India, which shall obviously be
entertainable by a learned Single Judge.
7. The writ petition, therefore, is
consigned to records with liberty to the
petitioner to invoke the appropriate
jurisdiction of this Court for redressal of
any such grievance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2015
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Misc. Writ Petition No. 11158 of 2015
Gyanesh Rai & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
R.P. Singh, Dhirendra Singh
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-226-custodian
torture-in spite of direction given under
Section 156(3) Cr.P.C.-no FIR lodgedCourt expressed its serious concern with
direction to lodge FIR and complete
investigation by Officer not below in
rank of Circle Officer-petition allowed.
Held: Para-24
Coupled with this, in the present case,
once such is the factual situation that is
so emerging that prima-facie there has
been custodial violence, then FIR ought
1242
 INDIAN LAW REPORTS ALLAHABAD SERIES
to have been lodged and investigation
ought to have been carried out. Here, we
find
that
despite
application
under
Section 156(3) Cr.P.C. being moved and
Superintendent of Police, Mau being
aware of the entire situation, till date,
FIR has not been lodged and no action
has been taken by undertaking free, fair
and impartial investigation, in view of
this, we proceed to pass an order asking
Superintendent
of
Police,
Mau
to
forthwith ensure that FIR is lodged
against erring police incumbents as per
the law laid down by Apex Court, in the
case of Lalita Kumari vs. Government of
U.P.
2014
(2)
SCC
1
and
the
investigation in question is carried out
under his supervision by an officer not
below the rank of Circle Officer, who will
proceed to carry out investigation in
free, fair and transparent manner.
Case Law discussed:
1997 (1) SCC 416; 1980 (3) SCC 70; 1985 (1)
SCC 552; 1993 (2) SCC 746; 1997 (1) SCC
416; 2003 (7) SCC 749; 2006(3) SCC 178;
2012 (1) SCC 10; 2012 (3) SCC Cr. 733; 2014
(10) SCC 635.
(Delivered by Hon'ble V.K. Shukla, J.)
1. Gyanesh Rai s/o Ganga Prasad
Rai through the next friend his father
Ganga Prasad Rai and Ganga Prasad Rai
s/o Raj Narayan Rai have approached this
Court, complaining of custodial violence
and requesting therein for payment of
compensation for physical sufferings and
mental agony as well as for initiation of
action against erring police personnel.
2. Factual matrix of the case is that
petitioner no.1-Gyanesh Rai is a young
man and claims that he had applied for the
post of Constable in I.T.B.P. (Central
Force) and qualified the physical test held
in Dehradun on 23rd February, 2015 and
after qualifying the physical test, he was
busy
in
preparation
of
written
examination scheduled to be held in May,
2015 and in between, petitioners submit
that, police personnel from police station
Doharighat, came to petitioners' house
and petitioner no.1 was informed that he
was required for interrogation. Petitioners
submit that petitioner no.1 was taken to
the police station on 9th April, 2015 at 5
pm and in the name of carrying out
interrogation, petitioner no.1 was detained
at police station uptil 16th April, 2015 and
during this period, petitioners' grievance
is that petitioner no.1 has been subjected
to brutal police torture by using third
degree methods like electric shock, severe
beating and insertion of aluminium wires
through his mouth.
3.

Petitioners'
submit
that
immediately thereafter, petitioner no.2
proceeded to send information to each and
every responsible official inclusive of
Hon'ble the Chief Justice of this Court,
District Magistrate, Mau, State Human
Rights Commission, Lucknow and others.
Petitioner no.1 was taken to hospital in
the city of Mau in serious condition where
he was admitted by the police and
thereafter he was shifted to Varanasi and
at Varanasi x-ray was conducted at Singh
Medical
Research
Centre
wherein
aluminium wire has been seen in the
throat and abdomen of petitioner no.1.
Petitioner no.1, thereafter, was taken to
Banaras Hindu University but as there
was no reference letter he was not
admitted there and thereafter he was taken
to
P.M.C.
Hospital,
Durga
Kund,
Varanasi and thereafter, as his condition
was very serious, he was referred to
K.G.M.C.
Lucknow
where
he
was
admitted on 18th April, 2015 and
thereafter after getting operated upon,
petitioner
no.1
has
been
released.
Petitioners have contended that petitioner
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors.
1243
no.1 has been subjected to custodial
torture and thereafter for the relief
mentioned above, present writ petition in
question has been filed.
4. As complaint before this Court
has been that third Degree method has
been applied by police officials namely
respondent no.3 to 9 in complete violation
of directives issued by the Apex Court in
D.K. Basu vs. State of West Bengal 1997
(1) SCC 416, this Court on 6th May, 2015
proceeded to ask Superintendent of
Police, Mau to file counter affidavit
within four days and thereafter on
12.05.2015, a short counter affidavit was
filed and this Court was of the opinion
that the short counter affidavit is not at all
in consonance with the directives issued
by this Court and this Court took serious
note
of
the
matter
and
asked
Superintendent of Police, Mau to file his
personal affidavit.
5. Pursuant to order dated 12th May,
2015, detailed counter affidavit has been
filed appending therein the report of the
inquiry officer as well as the report of
preliminary inquiry and the action that has
been so taken. To the said counter
affidavit, rejoinder affidavit has been filed
giving therein details of the discharge
tickets dated 18th May, 2015.
6. After pleadings mentioned above
have
been
exchanged,
present
writ
petition has been taken up for final
hearing and disposal.
7. Shri R.P. Singh, Advocate
appearing for the petitioners submitted
with vehemence that this is a glaring case
wherein
petitioner
no.1
has
been
subjected
to
custodial
violence
by
adopting third degree methods and the
brutality in question is much more
compounded from the fact that wire in
question has been put in in his body and
without maintaining any records for six
days, he has been confined at the police
station and till today, departmental action
that has been proposed to be taken, same
is an eye-wash and no criminal action has
been taken whereas the police officials on
the face of record have proceeded to
misuse their position, and have committed
criminal offence, in view of this,
compensation be awarded and directives
be issued for lodging of FIR against
erring police personnels.
8. Shri Vimlendu Tripathi, learned
A.G.A., on the other hand, has contended
that there has been no excess on the part
of the police personnel and the totality of
the circumstance would speak for itself,
as here anxiety of police personnel has
been to crack the serious offence of loot
and murder, that has shocked the entire
society.
9. Police atrocities in India is not
new and same has always been a subject
matter of controversy and debate in
consonance with the provisions of Article
21 of the Constitution of India, as any
form of torture or criminality in human or
degrading treatment is inhibited. Torture
is not at all permitted whether it occurs
during investigation, interrogation or
otherwise. Custodial violence is in effect
direct invasion of human rights. Torture
in custody flouts the basic rights of
citizens
recognized
by
the
Indian
Constitution and is affront to human
dignity.
"Custodial
Torture"
is
a
calculated assault on human dignity and
nothing can be more dehumanizing as the
conduct of police in practising torture of
any kind on a person in their custody.
1244
 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahatma Gandhi in one of his quotes
has said as follows:
"I object to violence because when it
appears to do good, the good is only
temporary, the evil it does is permanent."
10. By resorting to custodial torture,
for the time being, police with a view to
secure evidence or confession may
achieve their goal but in long run, police
will have to substantiate and will have to
face the scrutiny of Court, as to whether
evidence secured or confession made was
voluntary or same has been sheer outcome
of custodial violence inflicted upon.
Evidences and Confessions that come
through the route of custodial violence, in
long run, do no good and prosecution has
to pay heavy price for the same, on such
facts being substantiated, otherwise police
would be accomplishing behind their
closed doors precisely what the demands
of our legal order forbid.
11. Time and again custodial torture
has been at the radar of the Apex Court
and Apex Court, at all point of time, has
viewed
custodial
torture
with
all
seriousness.
12. Apex Court in the case of
Raghbir Singh vs. State of Haryana 1980
(3) SCC 70 proceeded to mention that
State at the highest administrative and
political levels would organize special
strategies to prevent and punish brutality
by police methodology, otherwise, the
credibility of the rule of law in our
Republic vis-a-vis the people of the
country will deteriorate. Relevant extract
of said judgement is as follows:
"We are deeply disturbed by the
diabolical recurrence of police torture
resulting in a terrible scarce in the minds
of common citizens that their lives and
liberty are under a new peril when the
guardians of the law gore human rights to
death. The vulnerability of human rights
assumes
a
traumatic,
torture
some
poignancy when violent violation is
perpetrated by the police arm of the State
whose function is to protect the citizen
and not to commit gruesome offences
against them as has happened in this case,
Police lock-up if reports in newspapers
have a streak of credence, are becoming
more and more awesome cells. This
development is disastrous to our human
rights
awareness
and
humanist
constitutional order.
The
State,
at
the
highest
administrative and political levels, we
hope, will organise special strategies to
prevent and punish brutality by police
methodology. Otherwise, the credibility
of the rule of law in our Republic vis-avis the people of the country will
deteriorate.
We conclude with the disconcerting
note sounded by Abraham Lincoln:
'If you once forfeit the confidence of
your fellow citizens you can never regain
their respect and esteem. It is true that
you can fool all the people some of the
time, and some of the people all the time,
but you cannot fool all the people all the
time.'
These observations have become
necessary to impress upon' the State
police echelons the urgency of stamping
out the vice of 'third degree' from the
investigative armoury of the police."
13. Apex Court in the case of State
of Uttar Pradesh vs. Ram Sagar Yadav
and others 1985 (1) SCC 552 has
proceeded to took a note of the fact that at
the point of time when a person is in
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors.
1245
custody and he is subjected to any
atrocity, then, at the said point of time,
police officials alone and none else, can
give
evidence
as
regards
the
circumstances in which a person in their
custody comes to receive injuries while in
their custody. Relevant extract of said
judgement is as follows:
"Police Officers alone, and none else,
can
give
evidence
as
regards
the
circumstances in which a person in their
custody comes to receive injuries while in
their custody. Bound by ties of a kind of
brotherhood, they often prefer to remain
silent in such situations and when they
choose to speak, they put their own gloss
upon facts and pervert the truth. The
result is that persons, on whom atrocities
are perpetrated by the police in the
sanctum sanctorum of the police station,
are left without any evidence to prove
who the offenders are."
14. Apex Court, in the case of
Nilabati Behera @ Lalit Behera vs. State
of Orissa and others, 1993 (2) SCC 746
proceeded to take view that even convicts,
prisoners and undertrials have right under
Article 21 and once an incumbent is taken
into custody and there are injuries on his
body, then State will have to explain, as to
how he sustained the injuries, and
compensation
can be awarded under
public law remedy.
15. Apex Court in the case of D.K.
Basu vs. State of West Bengal 1997 (1)
SCC 416, has dealt with the issue of
custodial violence, and has clearly ruled,
interrogation through essential must be on
scientific principles, third degree methods
are impermissible, balanced approach
should be there so that criminals don't go
scot free. Various guidelines have been
issued and same are holding the field,
even
as
on
date,
in
addition
to
constitutional and statutory safeguards.
Relevant extract of said judgment is as
follows:
"The importance of affirmed rights of
every human being need no emphasis and,
therefore, to deter breaches thereof becomes
a sacred duty of the Court, as the custodian
and protector of the fundamental and the
basic human rights of the citizens. Custodial
violence, including torture and death in the
lock ups, strikes a blow at the Rule of Law,
which demands that the powers of the
executive should not only be derived from
law but also that the same should be limited
by law. Custodial violence is a matter of
concern. It is aggravated by the fact that it is
committed by persons who are supposed to
be the protectors of the citizens. It is
committed under the shield of uniform and
authority in the four walls of a police station
or lock-up, the victim being totally helpless.
The protection of an individual from torture
and abuse by the police and other law
enforcing officers is a matter of deep concern
in a free society. These petitions raise
important issues concerning police powers,
including whether monetary compensation
should
be
awarded
for
established
infringement of the Fundamental Rights
guaranteed by Articles 21 and 22 of the
Constitution of India. The issues are
fundamental.
"Torture" has not been defined in
Constitution or in other penal laws.
'Torture' of a human being by another
human being is essentially an instrument
to impose the will of the 'strong' over the
'weak' by suffering. The word torture
today has become synonymous wit the
darker side of human civilisation.
"Torture is a wound in the soul so
painful that sometimes you can almost
1246
 INDIAN LAW REPORTS ALLAHABAD SERIES
touch it, but it is also so intangible that
there is not way to heal it. Torture is
anguish squeezing in your chest, cold as
ice and heavy as a stone paralyzing as
sleep and dark as the abyss. Torture is
despair and fear and rage and hate. It is a
desire to kill and destroy including
yourself."
-Adriana P. Bartow
No violation of any one of the human
rights has been the subject of so many
Conventions and Declarations as 'torture'-
all aiming at total banning of it in all
forms, but inspite of the commitments
made to eliminate torture, the fact remains
that torture is more widespread not that
ever before, "Custodial torture" is a naked
violation
of
human
dignity
and
degradation with destroys, to a very large
extent, the individual personality. IT is a
calculated assault on human dignity and
whenever human dignity is wounded,
civilisation takes a step backward-flag of
humanity must on each such occasion fly
half-mast.
In all custodial crimes that is of real
concern is not only infliction of body pain
but the mental agony which a person
undergoes within the four walls of police
station or lock-up. Whether it is physical
assault or rape in police custody, the
extent of trauma a person experiences is
beyond the purview of law.
"Custodial violence" and abuse of
police power is not only 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 global. The Universal
Declaration of Human Rights in 1984,
which
market
the
emergency
of
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 curel,
inhuman or degrading treatment or
punishment."
Despite
the
pious
declaration, the crime continues unabated,
though every civilised nation shows its
concern and takes steps for its eradication.
Fundamental rights occupy a place of
pride in the India Constitution. Article 21
provides "no person shall be deprived of
his life or personal liberty expect
according to procedure established by
law". Personal liberty, thus, is a sacred
and
cherished
right
under
the
Constitution. The expression "life of
personal liberty" has been held to include
the right to live with human dignity and
thus it would also include within itself a
guarantee against torture and assault by
the State or its functionaries. Article 22
guarantees protection against arrest and
detention in certain cases and declares
that no person who is arrested shall be
detained
in
custody
without
being
informed of the grounds of such arrest
and the shall not be denied the right to
consult and defend himself by a legal
practitioner of his choice. Clause (2) of
Article 22 directs that the person arrested
and detained in custody shall be produced
before the nearest Magistrate within a
period of 24 hours of such arrest,
excluding the time necessary for the
journey from the place of arrest to the
court of the Magistrate. Article 20(3) of
the Constitution lays down that a person
accused of an offence shall not be
compelled to be a witness against himself.
These are some of the constitutional
safeguard provided to a person with a
view to protect his personal liberty against
and unjustified assault by the State, In
tune with the constitutional guarantee a
number statutory provisions also seek to
project personal liberty, dignity and basic
human rights of the citizens. Chapter V.
of Criminal Procedure Code, 1973 deals
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors.
1247
with the powers of arrest of a person and
the safeguard which are required to be
followed by the police to protect the
interest of the arrested person. Section 41,
Cr. P.C. confers powers on any police
officer to arrest a person under the
circumstances specified therein without
any order or a warrant of arrest from a
Magistrate. Section 46 provides the
method and manner of arrest. Under this
Section no formality is necessary while
arresting a person. Under Section 49, the
police is not permitted to use more
restraint than is necessary to permitted to
use more restraint than is necessary to
prevent the escape of the person. Section
50 enjoins every police officer arresting
any
person
without
warrant
to
communicate to him the full particulars of
the offence for which he is arrested and
the grounds for such arrest. The police
officer is further enjoined to inform the
person arrested that he is entitled to be
released on bail and he may arrange for
sureties in the event of his arrest for a
non-bailable offence. Section 56 contains
a mandatory provision requiring the
police officer making an arrest without
warrant to produce the arrested person
before a Magistrate without unnecessary
delay and Section 57 echoes Clause (2) of
Article 22 of the Constitution of India.
There are some other provisions also like
Section 53, 54 and 167 which are aimed
at affording procedural safeguards to a
person arrested by the police. Whenever a
person dies in custody of the police,
Section 176 requires the Magistrate to
hold and enquiry into the cause of death.
However,
inspite
of
the
constitutional and statutory provisions
aimed at safeguarding the personal liberty
and life of a citizen, growing incidence of
torture and deaths in police custody has
been a disturbing factor. Experience
shows that worst violations of human
rights take place during the course of
investigation, when the police with a view
to secure evidence or confession often
resorts to third degree methods including
torture and adopts techniques of screening
arrest by either not recording the arrest or
describing the deprivation of liberty
merely as a prolonged interrogation. A
reading of the morning newspapers
almost everyday carrying reports of
dehumanising torture, assault, rape and
death in custody of police or other
governmental
agencies
is
indeed
depressing. The increasing incidence of
torture and death in custody has assumed
such alarming proportions that it is
affecting the creditibility of the Rule of
Law and the administration of criminal
justice system. The community rightly
feels perturbed. Society's cry for justice
becomes louder.
Custodial death is perhaps one of the
worst crimes in a civilised society governed
by the Rule of Law. The rights inherent in
Articles 21 and 22(1) of the Constitution
required to be jealously and scrupulously
protected. We cannot wish away the
problem. Any form of torture of cruel,
inhuman or degrading treatment would fall
within the inhibition of Article 21 of the
Constitution, whether it occurs during
investigation, interrogation or otherwise. If
the functionaries of the Government become
law breakers, it is bound to breed contempt
for law and would encourage lawlessness
and every man would have the tendency to
become law unto himself thereby leading to
anarchanism. No civilised nation can permit
that tp happen. Does a citizen shed off his
fundamental right to life, the moment a
policeman arrests him? Can the right to life
of a citizen be put in abeyance on his arrest?
These questions touch the spinal court of
human rights jurisprudence. The answer,
1248
 INDIAN LAW REPORTS ALLAHABAD SERIES
indeed, has to be an emphatic 'No'. The
precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to
convicted undertrials, detenues and other
prisoners in custody, except according to the
procedure established by law by placing such
reasonable restrictions as are permitted by
law.
Instances have come to out notice
were the police has arrested a person
without warrant in connection with the
investigation of an offence, without
recording the arrest, and the arrest person
has been subjected to torture to extract
information from him for the purpose of
further investigation or for recovery of
case property or for extracting confession
etc. The torture and injury caused on the
body of the arrestee has sometime resulted
into his death. Death in custody is not
generally shown in the records of the lockup and every effort is made by the police to
dispose of the body or to make out a case
that the arrested person died after he was
released from custody. Any complaint
against such torture or death is generally
not given any attention by the police
officers because of ties of brotherhood. No
first information report at the instance of
the victim or his kith and kin is generally
entertained and even the higher police
officers turn a blind eye to such
complaints.
Even
where
a
formal
prosecution is launched by the victim or
his kith and kin, no direct evidence is
available to substantiate the charge of
torture or causing hurt resulting into death
as the police lock-up where generally
torture or injury is caused is away from the
public gaze and the witnesses are either
police men or co- prisoners who are highly
reluctant to appear as prosecution witness
due to fear of letaliation by the superior
officers of the police. It is often seen that
when a complaint is made against torture,
death or injury, in police custody, it is
difficult to secure evidence against the
policemen responsible for resorting to third
degree methods since they are incharge of
police station records which they do not
find difficult to manipulate. Consequently,
prosecution against the delinquent officers
generally results in acquittal. State of
Madhya Pradesh Vs. Shyamsunder Trivedi
& Ors. [ 1995 (3) Scale, 343 =] is an apt
case illustrative of the observations made
by us above. In that case, Nathu Bnjara
was tortured at police station, Rampura
during the interrogation. As a result of
extensive injuries caused to him he died in
police custody at the police station. The
defence set up by the respondent police
officials at the trial was that Nathu Banjara
had been released from police custody at
about 10.30 p.m. after interrogation
13.10.1986 itself vide entry EX. P/22A in
the Roznamcha and that at about 7.00 a.m.
on 14.10.1981, a death report Ex. P/9 was
recorded at the police station, Rampura, at
the instance of Ramesh respondent No. 6,
to the effect that he had found "one
unknown person" near a tree by the side of
the tank riggling with pain in his chest and
that as a soon as respondent No. 6 reached
near him, the said person died. The further
case set up by SI Trivedi, respondent No.
1, incharge of the police station was that
after making a Roznamcha entry at 7.00
a.m. about his departure from the police
station he (respondent No. 1- Shyamsunder
Trivedi)
and
Constable
Rajaram
respondent proceeded to the spot where the
dead body was stated to be lying for
conducting investigation under Section 174
Cr.P.C. He summoned Ramesh Chandra
and Goverdhan respondents to the spot and
in their presence prepared a panchnama
EX. P/27 of the dead body recording the
opinion therein to the effect that no definite
cause of death was known.
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors.
1249
Police is, no doubt, under a legal
duty and has legitimate right to arrest a
criminal and to interrogate him during the
investigation of a an offence but it must
be remembered that the law does not
permit use of third degree methods or
torture of accused in custody during
interrogation and investigation with that
view to solve the crime. End cannot
justify the means. The interrogation and
investigation into a crime should be in
true sense purpose full to make the
investigation effective. By torturing a
person and using their degree methods,
the police would be accomplishing behind
the closed doors what the demands of our
legal order forbid. No. society can permit
it.
How do we check the abuse of police
power? Transparency of action and
accountability perhaps are tow possible
safeguards which this Court must insist
upon. Attention is also required to be paid
to properly develop work culture, training
and orientation of police force consistent
with basic human
values. Training
methodology
of
the
police
needs
restructuring. The force needs to be
infused with basic human values and
made sensitive to the constitutional ethos.
Efforts must be made to change the
attitude and approach of the police
personal handling investigations so that
they do not sacrifice basic human values
during interrogation and do not resort to
questionable form of interrogation. With a
view to bring in transparency, the
presence of the counsel of the arrestee at
some
point
of
time
during
the
interrogation may deter the police from
using
third
degree
methods
during
interrogation.
There is one other aspect also which
needs out consideration, We are conscious
of the fact that the police in India have to
perform a difficult and delicate task,
particularly in view of the deteriorating law
and order situation, communal riots,
political turmoil, student unrest, terrorist
activities, and among others the increasing
number of underworld and armed gangs and
criminals, Many hard core criminals like
extremist, the terrorists, drug peddlers,
smugglers who have organised gangs, have
taken strong roots in the society. It is being
said in certain quarters that with more and
more liberalisation and enforcement of
fundamental rights, it would lead to
difficulties in the detection of crimes
committed by such categories of hardened
criminals by soft peddling interrogation. It
is felt in those quarters that if we lay to
much of emphasis on protection of their
fundamental rights and human rights such
criminals
may
go
scot-free
without
exposing any element or iota or criminality
with the result, the crime would go
unpunished and in the ultimate analysis the
society would suffer. The concern is
genuine and the problem is real. To deal
with such a situation, a balanced approach is
needed to meet the ends of justice. This all
the more so, in view of the expectation of
the society that police must deal with the
criminals in an efficient and effective
manner and bring to book those who are
involved in the crime. The cure cannot,
however, be worst than the disease itself.
There can be no gain saying that
freedom of an individual must yield to the
security of the State. The right of
preventive detention of individuals in the
interest of security of the State in various
situations
prescribed
under
different
statures has been upheld by the Courts.
The right to interrogate the detenues,
culprits or arrestees in the interest of the
nation, must take precedence over an
individual's right to personal liberty. The
latin maxim salus populi est supreme lex
1250
 INDIAN LAW REPORTS ALLAHABAD SERIES
(the safety of the people is the supreme
law) and salus republicae est suprema lex
(safety of the state is the supreme law) coexist an dare not only important and
relevant but lie at the heart of the doctrine
that the welfare of an individual must
yield to that of the community. The action
of the State, however must be "right, just
and fair". Using any form of torture for
extracting any kind of information would
neither be 'right nor just nor fair' and,
therefore, would be impermissible, being
offensive to Article 21. Such a crimesuspect must be interrogated - indeed
subjected to sustained and scientific
interrogation determined in accordance
with the provisions of law. He cannot,
however, be tortured or subjected to third
degree methods or eleminated with a view
to elicit information, extract confession or
drive knowledge about his accomplices,
weapons etc. His Constitutional right
cannot be abridged except in the manner
permitted by law, though in the very
nature of things there would be qualitative
difference in the methods of interrogation
of such a person as compared to an
ordinary criminal. Challenge of terrorism
must be met wit innovative ideas and
approach. State terrorism is not answer to
combat terrorism. State terrorism is no
answer
to
combat
terrorism.
State
terrorism would only provide legitimacy
to 'terrorism'. That would be bad for the
State, the community and above all for the
Rule of Law. The State must, therefore,
ensure that various agencies deployed by
it for combating terrorism act within the
bounds of law and not become law unto
themselves. that the terrorist has violated
human rights of innocent citizens may
render him liable for punishment but it
cannot justify the violation of this human
rights expect in the manner permitted by
law. Need, therefore, is to develop
scientific methods of investigation and
train
the
investigators
properly
to
interrogate to meet the challenge.
We
therefore,
consider
it
appropriate
to
issue
the
following
requirements to be followed in all cases of
arrest or detention till legal provisions are
made in that behalf as preventive
measures :
(1) The police personnel carrying out
the arrest and handling the interrogation
of the arrestee should bear accurate,
visible and clear identification and name
togs
with
their
designations.
The
particulars of all such police personnel
who handle interrogation of the arrestee
must be recorded in a register.
(2) That the police officer carrying
out the arrest of the arrestee shall prepare
a memo of arrest at the time of arrest a
such memo shall be attested by atleast one
witness. who may be either a member of
the family of the arrestee or a respectable
person of the locality from where the
arrest is made. It shall also be counter
signed by the arrestee and shall contain
the time and date of arrest.
(3) A person who has been arrested
or detained and is being held in custody in
a police station or interrogation centre or
other lock-up, shall be entitled to have
one friend or relative or other person
known to him or having interest in his
welfare being informed, as soon as
practicable, that he has been arrested and
is being detained at the particular place,
unless the attesting witness of the memo
of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and
venue of custody of an arrestee must be
notified by the police where the next
friend or relative of the arrestee lives
outside the district or town through the
legal Aid Organisation in the District and
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors.
1251
the police station of the area concerned
telegraphically within a period of 8 to 12
hours after the arrest.
(5) The person arrested must be
made aware of this right to have someone
informed of his arrest or detention as soon
he is put under arrest or is detained.
(6) An entry must be made in the
diary at the place of detention regarding
the arrest of the person which shall also
disclose the name of he next friend of the
person who has been informed of the
arrest an the names and particulars of the
police officials in whose custody the
arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time of
his arrest and major and minor injuries, if
any present on his/her body, must be
recorded at that time. The "Inspection
Memo" must be signed both by the
arrestee and the police officer effecting
the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected
to medical examination by trained doctor
every 48 hours during his detention in
custody by a doctor on the panel of
approved doctors appointed by Director,
Health Services of the concerned Stare or
Union Territory. Director, Health Services
should prepare such a penal for all Tehsils
and Districts as well.
(9) Copies of all the documents
including the memo of arrest, referred to
above, should be sent to the illaga
Magistrate for his record.
(10) The arrestee may be permitted
to meet his lawyer during interrogation,
though not throughout the interrogation.
(11) A police control room should be
provided
at
all
district
and
state
headquarters,
where
information
regarding the arrest and the place of
custody
of
the
arrestee
shall
be
communicated by the officer causing the
arrest, within 12 hours of effecting the
arrest and at the police control room it
should be displayed on a conspicuous
notice board."
16. Apex Court in the case of
Shakila Abdul Gafar Khan vs. Vasant
Raghunath Dhoble and another 2003 (7)
SCC 749 has proceeded to make a
mention that who are at the helm of
affairs who proclaim from rooftops to be
the
defenders
of
democracy
and
protectors of people's rights and do not
hesitate to condescend behind the screen
to let loose their men in uniform to settle
personal scores, reigning ignorance of
what happens and pretending to be peaceloving puritans and saviours of citizens'
rights. Relevant extract of said judgement
is as follows:
"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.
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.
1252
 INDIAN LAW REPORTS ALLAHABAD SERIES
personal liberty has an important role to
play in the life 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 himself". (in (1928)
277 U.S. 438, quoted in (1961) 367 U.S.
643 at 659)."
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.