# Siddhu and others v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-02-16
- **Case number:** Criminal Misc. Writ Petition No. 1754 of 1999
- **Bench:** S.R. Singh, R.K. Dash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddhu-and-others-v-state-of-u-p-and-others-39889
- **Pages:** 6

## Headnote

Constitution of India- Article 226- Death
in Police custody-if a persons while in
the police custody died an unnatural
death and there were anti mortem
injuries on his person, it is for the police
to explain how he received the injuries
which
resulted
in
his
deathcompensation
awarded
to
the
petitioners-The amount of compensation
would be recovered from the concerned
Police Officers.

So taking an overall view of the facts and
circumstances of the case, we direct the
State
respondent
no.1
to
pay
a
compensation
of
Rs.2,50,000/-
(Rs.1,50,000/- to petitioners no.1 and 2
and Rs.1,00,000/- to petitioner no. 3)
within one month hence. The aforesaid
amount may be recovered by the State
from the concerned police officers for
2 All] Siddhu and others Vs. State of U.P. and others
395
the death of the deceased in the police
lock up.
Case Law referred
(1) AIR 1984 SC 571
(2) 1997 Crl. L.J. 743
(3) (1994) 4 SCC 260

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
394
filed by Sri Sanjay Bhatnagar, Assistant
Registrar (Legal and Confidential) in the
Institute it has been clarified that the
I.I.T., Kanpur is a body corporate
established under the provisions of the
Act and "the decision of the Government
of India do not ipso facto apply to the
institute" unless and until they are adopted
by the Board of Governors of the Institute
in accordance with the provisions of the
Act in relation to the Institute. As stated
herein above the Government decisions
were
approved
by
the
Board
of
Governor's and, therefore, even according
to what is stated in para 4 of the counter
affidavit the Government decisions apply
to the Institute inasmuch as nothing in the
Act precludes the board of Governors to
take policy decision to enhance the age of
retirement of the employees of the
Institute. I.I.T., Kanpur though is an
autonomous
body
is
under
the
administrative control of the Ministry of
Human Resource Development as stated
in para no. 22 of the counter affidavit
filed by Sri Sanjay Bhatnagar on behalf of
the Institute. The policy decision taken by
the Board does not appear to have been
reversed in the light of clarificatory letter
dated
16.2.2000
issued
by
the
Government of India, reliance on which
was placed by Sri S.N. Verma during the
course of arguments. In the fact situation
of the case, therefore, the petitioner is
entitled to the reliefs claimed in the writ
petition.

8. Accordingly, the writ petition
succeeds and is allowed. The impugned
order superannuating the petitioner w.e.f.
31.12.2000 is quashed. Respondents are
directed to allow the petitioner to continue
in service till he attains the age of 62
years and grant him all consequential
benefits. Parties are directed to bear their
own costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE R.K. DASH, J.

Criminal Misc. Writ Petition No. 1754 of
1999

Siddhu and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri R.K. Jain
Sri Shree Prakash Singh
Sri V.N. Vishwakarma

Counsel for the Respondents:
Sri R.K. Asthana
Sri A.K. Banerjee
A.G.A.

Constitution of India- Article 226- Death
in Police custody-if a persons while in
the police custody died an unnatural
death and there were anti mortem
injuries on his person, it is for the police
to explain how he received the injuries
which
resulted
in
his
deathcompensation
awarded
to
the
petitioners-The amount of compensation
would be recovered from the concerned
Police Officers.

So taking an overall view of the facts and
circumstances of the case, we direct the
State
respondent
no.1
to
pay
a
compensation
of
Rs.2,50,000/-
(Rs.1,50,000/- to petitioners no.1 and 2
and Rs.1,00,000/- to petitioner no. 3)
within one month hence. The aforesaid
amount may be recovered by the State
from the concerned police officers for
2 All] Siddhu and others Vs. State of U.P. and others
395
the death of the deceased in the police
lock up.
Case Law referred
(1) AIR 1984 SC 571
(2) 1997 Crl. L.J. 743
(3) (1994) 4 SCC 260

(Delivered by Hon'ble R.K. Dash, J.)

1.

Murahoo
alias
Manendra
(hereinafter referred to as 'the deceased'),
a young and able bodied man of aged
twenty seven years met tragic death while
in police custody of Golhaura police
station in 1998. Petitioners No. 1 and 2
are the father and mother and petitioner
No. 3 is the widow of the deceased.

2. The case of the petitioners is that
deceased, the sole bread winner of the
family was taken to the police station on
14.10.1998, kept in lock-up and was done
to death by the police officials. The case
of respondents-police officers including
Superintendent of Police, Siddharthnagar
is that the deceased, while in police lockup, committed suicide.

3. The facts adumbrated in the
pleadings of the parties may be stated
thus:

An F.I.R. was lodged on 10.10.1998
by one Jugul Kishore Tiwari alleging that
his daughter was enticed away by the
deceased and two others. On the basis of
the said report police registered case
crime no.91 of 1998, under Sections
363/366 I.P.C. and the deceased, it is
alleged, was arrested on 14.10.1998 at 4
P.M. from the medicine shop of Jugul
Kishore Tiwari by a constable. He was
taken to the police station and kept in the
lock-up for three days, mercilessly beaten,
as a consequence he breathed his last. The
police took the dead body for post
mortem examination and could manage to
obtain a report that the deceased died as a
result of hanging and thereafter cremated
it. Uncle of the deceased moved the court
under Section 156 (3) Cr.P.C. and
pursuant to the direction of the court, first
information
report
under
Sections
302/384/342/323/201/504/506 I.P.C. read
with Section 3 of the Schedule Castes and
Schedule Tribes (Prevention of Atrocities)
Act was registered against the police
personnel who committed murder.

4. It is alleged that petitioner No. 1,
father of the deceased is an old and blind
man and has no independent source of
income to support the family. He is a
landless
person
belonging
to
the
scheduled castes and the whole family
was depending upon the earning of the
deceased, who was a labourer. By filing
the present writ petition the petitioners
have prayed for a direction to conduct an
enquiry by a sitting or retired District
Judge
and
to
pay
them
adequate
compensation.

5. The case of the respondentspolice officers, on the other hand, is that
in the kidnapping case, the deceased
being one of the accused came to the
police station on 16.10.1998 along with
informant,
confessed
his
guilt
and
thereupon, he was taken to custody and
lodged in the lock-up of the police station
where he committed suicide by hanging.
Immediately the higher authorities as well
as
the
district
administration
were
informed. The dead body was sent for
post mortem examination and thereafter it
was handed over to family members of
the deceased. They have denied the
petitioners' allegation that they physically
tortured and caused the death of the
deceased. They have, however, admitted
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
396
that on the direction issued by the
Magistrate in exercise of power under
Section 156 (3) Cr.P.C. a case has been
registered against some police personnel,
the investigation of which has been
transferred to CBCID. Since the deceased
committed suicide by hanging, it is
asserted; the petitioners are not entitled to
any compensation.

6. From the factual matrix as
narrated above, it stands admitted that the
deceased met his Maker while in police
custody. Petitioners' specific case is that
the deceased was kept confined in the
police lock-up for three days where he
was brutally tortured, as a consequence he
breathed his last. The case of the
contesting respondents-police officers is
that the deceased being accused in a
kidnapping case was arrested, put behind
the lock-up of the police station where he
committed suicide. This plea of the
respondents as to the cause of death of the
deceased cannot be accepted as true.
Lock-up room which is otherwise called
as 'thana hazat' is a part of the police
station. When a person suspected of
commission of an offence is arrested and
kept in the police custody till he is
produced in the court, the lock-up room is
kept under guard by the police. Besides,
in view of nature of work, all the times,
some officers remain in duty in the police
station. Therefore, it raises a question
mark how the deceased in presence of the
police officers and the guard committed
suicide by hanging. It may be noted, no
specific plea has been taken by the
respondents-police officers whether the
deceased hanged himself with the help of
a rope, napkin or any other material.
Moreover, nothing is borne out from their
pleadings as to how the material used for
hanging could be made available to the
deceased when he was in the lock-up.
Preparation preceding to hanging and
accomplishment of the act must have
taken some time. So, if at all the deceased
committed suicide by hanging the guard
as well as the police officers present in the
police station could have rushed to save
the life of the deceased. Nothing has been
whispered by the respondents in their
counter affidavit as to if any attempt was
made in that regard. In view of such facts
and circumstances, we would hold that
the plea taken by the respondents-police
officers that the deceased committed
suicide is too big a pill to be swallowed
and it militates against their plea of
innocence. If a person while in police
custody received some injury or died an
unnatural death, it is for the police to
prove how he received injury or how he
died. Statement of the injured that he was
physically tortured by the police cannot
be thrown out on the ground that the same
was not corroborated by any independent
witness. No outsider can be expected to
be present in the police station when such
incident happened. Similarly if a person
while in the police custody died an
unnatural death and there were anti
mortem injuries on his person, it is for the
police to explain how he received the
injuries which resulted in his death. This
view of ours is based on Section 106 of
the Evidence Act, which provides that
when any fact is specially within the
knowledge of any person, the burden of
proving that fact is upon him. Besides the
aforesaid statutory provision the Supreme
Court in the case of Sebastian M
Hongray Vs. Union of India, AIR 1984
SC 571 ruled that the burden is obviously
on the respondents to make good the
positive stand taken by them in response
to the notice issued by the Court by
offering proof of the stand taken, when it
2 All] Siddhu and others Vs. State of U.P. and others
397
is shown that the person detained was last
seen alive under the surveillance, control
and command of the detaining authority.

7. Respondents-police officers in
support of their case that deceased
committed suicide, have relied upon the
copy of the post mortem report, Annexure
CA-2 to the counter affidavit. The said
report being not legible, we could not
ascertain if the deceased had any anti
mortem injury, besides the cause of death.
Moreover, presumption of correctness is
not attached to the report to support the
stand taken by the respondents. Added
thereto, it is borne out from the pleadings
of
the
contesting
respondents-police
officers that any near relative of the
deceased was called to be present either at
the time of inquest or post mortem
examination. Moreover, since the death of
the deceased occurred in police lock-up,
in all fairness the police should have
requisitioned the services of executive
magistrate or any other responsible officer
and in their presence, inquest as well as
post mortem examination should have
been conducted. All these circumstances
persuade us to hold that the police officers
and the autopsy doctor were hand in
gloves and the latter in order to save the
police officers from criminal prosecution
fabricated the report.

8. From the pleadings of the parties
and the circumstances narrated above, it is
deducible that the deceased was brutally
tortured by the police while in the lock-up
of the police station and on account of
such inhuman treatment he lost his life.
True it is, he was arrested by the police in
a cognizable offence registered under
Sections 363/366 I.P.C. and was put
behind bar in the police station, but while
doing so, the concerned police officer
failed to comply with the directions of the
Supreme Court as laid down in D.K.
Basu Vs. State of West Bengal, 1997
Crl.L.J. 743. In paragraph 36 the Court
held that the police officer carrying out
the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and
such memo shall be attested by at least
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
countersigned by the arrestee and shall
contain the time and date of arrest. The
arrestee shall also 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. 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 the next friend of the
person who has to be informed of the
arrest and the names and particulars of the
police officials in whose custody the
arrestee is. The Court also directed that
copies of all the documents including the
memo of arrest should be sent to Illaqa
Magistrate for his record.

9. Had the police in the present case
followed the above directions, there
would have been no scope for the
petitioners to complain that the deceased
was arrested on 14.10.1998 and detained
in the police station till 16.10.1998 when
he died while in lock-up. If at all the
deceased was arrested on 16.10.1998 as
pleaded
by
the
respondents-police
officers, necessary records of the police
station should have been produced before
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
398
us for our scrutiny. We, therefore, find no
ground to reject the stand taken by the
petitioners that the deceased was arrested
and kept in the police lock up for three
days.

10. Information to the police and
their power to investigate are provided in
Chapter XII of the Code of Criminal
Procedure. Arrest of a person involved in
a cognizable offence is a step to further
investigation, but it is not always
necessary to arrest him without being
satisfied that the information so received
is credible one or reasonable suspicion
exists about his involvement in the
offence. In this context it is worthwhile to
refer to the decision of the Apex Court in
Joginder Kumar Vs. State of U.P.,
(1994) 4 SCC 260 where the Court held
that "no arrest can be made because it is
lawful for the police officer to do so. The
existence of the power of arrest is one
thing. The justification for the exercise of
it is quite another... No arrest should be
made without a reasonable satisfaction
reached after some investigation about the
genuineness and bona fides of a complaint
and a reasonable belief both as to the
person's complicity and even so as to the
need to effect arrest. Denying a person his
liberty is a serious matter."

11. Three persons including the
deceased were arraigned as accused in
case crime No.91 of 1998 under Sections
363/366 I.P.C. Counter affidavit of the
respondents-police officers is silent as to
if the deceased was the main accused or
he was the abettor. Further nothing is
available
on
record
as
to
what
necessitated the police to arrest the
deceased and whether there was any
material before them for their satisfaction
that the deceased was involved in the
incident. To our mind, it appears that the
police did not act in the manner as
provided under law in the matter of arrest
of the deceased and with some oblique
motive they arrested and confined him in
the lock-up for three days.

12. The police, more particularly of
this State, have earned ill repute by their
action and behaviour to general public. A
person wronged, feels hesitant to go to
police station to lodge complaint. His
grievance is not heeded to and police do
not extend helping hand to redress his
suffering. Similarly, a person suspected of
commission of an offence on being
arrested when taken to police station, he is
treated ruthlessly as if he is an unwanted
element in the society and has no right to
live in the country. The police by their
action have lost their credibility. They are
looked down upon by the society on
account of their mis-deeds. There are
many instances where the police by
misusing their 'Wardi' have committed
heinous crimes like murder and rape
inside the police station. Bhagalpur
Blinding case and Maya Tyagi case are
shameful incidents of police atrocities.

13. Torture by one human being to
the other casts a stigma on the civilized
society. It not only creates bodily pain,
but also affects the dignity and honour of
a person. Custodial death and torture by
the police are on the rise. If such types of
crime are not checked and brought to a
halt, India one of the largest democratic
countries in the world may not have moral
to advocate to uphold the fundamental
rights of citizen. Any form of torture or
inhuman treatment by the police either in
course of investigation or otherwise is
prohibited
by
Article
21
of
the
Constitution. The police being custodian
2 All] Israr Ahmad Vs. Tehsildar Sadar, Muzaffarnagar and others
399
of law, is to protect law and not to abduct
it. So if by misusing their 'Wardi' they
depredate the liberties guaranteed by the
Constitution, they should be dealt with in
heavy hand otherwise, it would encourage
others to disobey the law. They are
instances where innocent persons having
suffered at the hands of the police
ransacked the police station, assaulted the
police personnel in order to take revenge
of their illegal acts. Therefore, if the
abuse of power by the police is not
checked and long arm of law fails to
apprehend them and their belief is
reinforced that no harm can be caused to
them by any authority, the people will
loose faith in prevailing law as well as the
law enforcing machinery.

14. In the case on hand, as discussed
earlier, it was the police personnel present
at the relevant time in the police station
mercilessly tortured and eliminated the
deceased while he was in lock-up. For
deprivation of life of the deceased at the
hands of the police, State is liable to pay
compensation to the petitioners on the
principle that the state is responsible for
the tortuous acts of its employees. Instead
of asking the petitioners to enforce their
rights through ordinary process of the
court, this Court has ample power under
Article 226 of the Constitution to award
them compensation for death of the
deceased in police lock-up.

15. Now the question arises as to the
quantum of compensation which would
be just and proper in the facts and
circumstances of the case. Human life is
precious. Loss sustained by the blind
father, old mother and the wife, the
petitioners
herein,
cannot
be
compensated. The parents, as their old
age, lost their young and able bodied son
who was maintaining them from his day's
income as a labourer. The widow,
petitioner No.3 at young age lost her
husband.
Can
any
amount
of
compensation that we may determine, fill
up the loss sustained by them or give
them solace? Our answer to this is
emphatic 'No'.

16. So taking an overall view of the
facts and circumstances of the case, we
direct the State- respondent No. 1 to pay a
compensation
of
Rs.2,50,000/-
(Rs.1,50,000/- to petitioners No. 1 and 2
and Rs.1,00,000/- to petitioner No.3)
within one month hence. The aforesaid
amount may be recovered by the State
from
the
concerned
police
officers
responsible for the death of the deceased
in the police lock-up.

17. We are, however, not inclined to
issue any direction to initiate any enquiry
by any sitting or retired District Judge
since a case of murder has been registered
and investigation taken up by the CBCID.

18. With the above observations and
directions,
the
writ
petition
stands
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.R. ALAM, J.

Civil Misc. (Trade Tax) Writ Petition No.
10613 of 2002

Israr Ahmad

...Petitioner
Versus
Tehsildar
Sadar,
Muzaffarnagar
and
others

 ...Respondents