Narayan Singh vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—The petitioner has sought pre-arrest bail in case FIR No. 40/2014, registered at Police Station, Sangrah, District Sirmaur, on 15.07.2014 under Sections 457, 380, 411, 34 IPC.

The petitioner appears to be accused committing theft of 15 quintals of tor-steel which fact is obviously denied by the bail petitioner. Pursuant to the directions passed by this Court on 26.03.2015, the petitioner has joined the investigation on more than two occasions which fact is again being disputed by the State. Be that as it may.

An astonishing fact has been disclosed by the petitioner that he had been tortured during the course of the investigation. Though, at this stage, I could not find any signs of physical torture, however, the State needs to be reminded that in a civilized society governed by the rule of law, police excesses and the maltreatment of detainees/undertrial prisoners or suspects cannot be countenanced. The men in ''khaki'' are not above the law much less law onto themselves.

At this stage, it shall be apt to quote the following observations of the Hon''ble Supreme Court in Munshi Singh Gautam (D) and Others Vs. State of M.P., wherein it has been held as under:--

"1. If you once forfeit the confidence of our 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", said Abraham Lincoln. This Court in Raghbir Singh Vs. State of Haryana, and Smt. Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and Another, , took note of these immortal observations while deprecating custodial torture by the police.

Custodial violence, torture and abuse of police power are not 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 1948 which marked the emergence of a 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 cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. 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 at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lockup because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with."

The Investigating Agency needs only to be reminded of the aforesaid observations and in case any complaint regarding any torture or police excesses is received, then the same needless to state shall be dealt with sternly. The petitioner has made certain allegations against the Investigating Agency, the same have to be dealt with in a realistic manner and with the sensitivity which they deserve, lest the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day for anyone to reckon with.

Reverting to the case in hand, it would be seen that this is not a case where the prosecution can claim custodial interrogation because the complicity, if any, of the petitioner will have to be established by the prosecution during the course of the trial.

Looking into the facts and circumstances of the case, I find this to be a fit case where discretion of bail ought to be exercised.

Accordingly, the bail application is allowed and the petitioner is ordered to be released on bail in FIR No. 40/2014, registered at Police Station, Sangrah, District Sirmaur, on 15.07.2014 under Sections 457, 380, 411, 34 IPC, on his furnishing personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, subject to the following conditions:--

"(i) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(ii) that the petitioner shall not tamper with the prosecution evidence or threaten the witnesses;

(iii) that the petitioner shall make himself available for interrogation by the police officer as and when required.

(iv) that the petitioner shall not misuse his liberty in any Manner;

(v) that the petitioner shall report for interrogation on 06.04.2015 and shall be interrogated only up till 10.04.2015. However, in the event of petitioner being no longer required by the Investigating Officer, he is free to release the petitioner earlier to 10.04.2015;

(vi) the petitioner shall only be interrogated from 10 a.m. to 1.00 p.m. on the aforesaid dates that too in presence of any other person which may include his lawyer, his friend, Pradhan, Up-Pradhan or any other person;

(vii) In case the Investigating Officer wants to interrogate the petitioner any further beyond 10th of April, 2015, express written permission shall be obtained from this Court."

Learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.

Petition stands disposed of.