Raghvendra Awasthi vs State of Assam

S.B. Roy, J.—This is an application for granting anticipatory bail to the petitioner as he apprehends that he may be arrested by police in connection with Golaghat P. S. Case No. 140/97 under Sections 120B/365/343/325/302/201, I.P.C.

This is a case of alleged police atrocities and custodial death. At the time of occurrence the petitioner was the Superintendent of Police of Golaghat District, Assam. He is a member of the Indian Police Service in the joint cadre of Assam and Meghalaya. He was Superintendent of Police Golaghat District from June, 1994 to January, 1996. Thereafter he was transferred to Guwahati as Superintendent of Policc-cum-Fire Service Adviser, Assam. He is now under suspension due to pendency of the aforesaid criminal case.

The case, in short, is that in 14-10-95 issue of ''Asomiya Pratidin'', an Assamese daily, a news was published under the caption "Death due to police torture" and the said news reads as under:

Pratidin Service

Golaghat 13th October: The death of a youth in the heart of the Golaghat town under mysterious circumstances has created great sensation. Last evening the dead body of one Jyoti Lohar, a businessman was discovered from a house at Badulipara. His actual/permanent home is at Dibrugarh.

It has been alleged that Jyoti Lohar died due to police atrocities. It may be mentioned that he was apprehended on October 8th last along with three other youths from Numaligarh. Thereafter Lohar''s whereabouts was not known. But recovery of his dead body suddenly today has created a great sensation in the town.

However, on 16-10-95 Moti Lohar, brother of Jyoti Lohar (since deceased) filed a Habeas Corpus petition in this Court being Civil Rule (HC) No. 48/95 for production of his brother Jyoti Lohar. After that within a few days another writ petition being Civil Rule No. 4564/95 was filed in this Court by Smt. Rupa Gogoi and her brother Mantu Gogoi for thorough investigation for identification of the police personnel and police officers responsible for the death of said Jyoti Lohar. In these petitions it was, inter alia, contended that Jyoti Lohar was killed while he was in custody of the petitioner and other police personnel under him in a deserted building at Golaghat called "Baruah Bungalow". In the said Civil Rule No. 4564/95, this Court passed the following order on 8-11-95 :

In this application under Article 226 of the Constitution the petitioners have alleged that petitioner No. 2 along with three others was taken away by police under the Superintendent of Police, Golaghat and was taken to a deserted house belonging to Late Heramba Prasad Baruah. All the persons taken by the police were tortured and the 2nd petitioner was released without producing him before any Magistrate. One of the persons, namely, Jyoti Lohar has been missing. On enquiry the police authority informed that he was taken on 9-10-95 and was released thereafter. His where about is not known now. Petitioner No. 2 apprehends danger to his life. Hence the present petition.

I have heard Mr. N. Dutta, learned counsel for the petitioner and Ms. A. Hazarika, learned Addl. Senior Government Advocate, Assam.

Mr. Dutta submits that immediate enquiry by the District and Sessions Judge is necessary just to protect the life of 2nd petitioner.

Considering the submissions of learned counsel for the parties I direct the District and Sessions Judge, Golaghat to make an enquiry and report before this Court within 4 (four) weeks from today. However, the District and Sessions Judge, Golaghat shall initiate the enquiry on receipt of this order by first recording the statement of Mantu Gogoi, petitioner No. 2.

Office to furnish copies of this order to the counsel for the petitioners Mr. N. Dutta and Ms. A. Hazarika, learned Addl. Senior Government Advocate for taking steps in this regard. Office shall also send a copy of this order along with the copy of the petition to the District and Sessions Judge, Golaghat. Petitioner to furnish a copy of this petition today itself.

List it after 4 (four) weeks.

Pursuant to the aforesaid order dated 8-11 -95, learned District and Sessions Judge, Golaghat, held enquiry into the matter and submitted his report dated 30-3-96 before this Court in connection with the aforesaid Civil Rule No. 4564/95. In course of the said enquiry, learned District and Sessions Judge examined and recorded the statements of 7 witnesses including statements of some disinterested witnesses like Dr. Troilokya Saikia and Dr. Prahlad Nath. He also examined and recorded statements of a number of other witnesses apart from obtaining two reports from Officers-in-charge of Golaghat Police Station and Dergaon Police Station. If the statements of these witnesses including the aforesaid two doctors and the reports submitted by two Officers-in-charge of the two Police Stations are to be believed, then one is left with no option but to hold that the petitioner himself along with some other police personnel under his instruction were party to the torture and assault on Jyoti Lohar and some of these witnesses in the Baruah Bungalow" which is also called "Bhut Bungalow". Though one of these witnesses who was also allegedly tortured by the petitioner and others was subsequently let off with injuries on his person, but Jyoti Lohar or his dead body was not traceable. Statement of this witness was further corroborated by what was stated by the two doctors. Statements of these two doctors lend ample corroboration, though indirectly, to the prosecution story as to the involvement of the petitioner. It further appears from the statements of these two witnesses that they claimed that they were witnesses to the torture and assault perpetrated by the petitioner himself and others upon Jyoti Lohar and three others in the said "Baruah Bungalow."

Dr. Troilokya Saikia was brought to the said "Baruah Bungalow" under the instruction of the petitioner himself and Dr. Saikia upon arrival at the said Bungalow found three injured young men and he could recognise one of those injured persons, namely, Shri Jakir Hussain. The condition of the third injured person was extremely critical and accordingly he advised the petitioner to shift the third injured person to hospital. It further appears from the statement of Dr. Prahlad Nath that he was also brought to the said building under the instruction of the petitioner and he found an injured person lying on the floor and upon examination he declared him dead. Furthermore, there are sufficient materials that Jyoti Lohar and three others were first brought and kept in the lock up of Dergaon Police Station and there they were tortured by the petitioner and others. From Dergaon Police Station they were brought to the said "Baruah Bungalow" at Golaghat where they were again tortured.

Upon receipt of the aforesaid report from the learned District and Sessions Judge, Golaghat, this Court passed the following order on 6-3-97 in Civil Rule No. 4564/95 :

Heard Mr. N. Dutta, learned counsel for the petitioner and Mr. H.N. Sarma, learned Addl. Sr. Govt. Advocate.

A copy of the enquiry report dated 30-3-96 shall be sent immediately to the Commissioner and Secretary, Home Department, Govt. of Assam for initiating action against the Delinquent Officer for prosecution as well as disciplinary proceeding on the basis of the finding given in the enquiry List this matter after 3 months when the learned Addl. Sr. Govt. Advocate will report to the Court the action initiated against the Delinquent Officer. The copy of the report shall be sent to the Commissioner and Secretary, Home Department, Govt. of Assam in the meantime through Mr. H. N. Sarma, learned Addl. Sr. Govt. Advocate along with a certified copy of this order.

Pursuant to the aforesaid order dated 6-3-97, Shri Bharai Chandra Gogoi, Inspector of Police, C.I.D. lodged the written complaint on 2-5-97 at Golaghat P. S. alleging, inter alia, that following the aforesaid enquiry conducted by the learned District and Sessions Judge, Golaghat and another enquiry conducted by the C.I.D., Assam, it transpired as follows :

That on 9-10-95, two persons namely Pranjal Gogoi, S/o. Late Putou Gogoi, Village Bahupathar, P. S. Dergaon and Brajen Bora @ Lachit Gogoi, son of Upen Gogoi of Village'' Khumtai, PS. Kumargaon (both of Golaghat District) picked up one Jyoti Lohar, S/o. Late Dalbirsing Lohar from the house of one Montu Gogoi of Village Bhulaguri (under P. S. Dergaon, District Golaghat) where he used to stay and brought him by a hired Ambassador Car No. ASZ 2303 to the official residence of Shri Raghabendra Awasthi, IPS the then S. P. Golaghat on the instructions of the letter. Shri Awasthi got Shri Lohar and three other wrongfully confined in the H. P. Baruah Building of Golaghat town (so-called Bhut Bungalow) where the Boarder Branch of S. P.''s office was located.

The wrongful confinement of the victim continued till the afternoon of 13-10-95 during which Shri Lohar was mindlessly assaulted and tortured by Shri Awasthi and the following of his staff inflicting serious injuries :

(1) S. I. (UP) H. Deori of Golghat P. S.

(2) AB/C 13 Bhaben Bora, P.S.O. to Supdt. of Police, Golaghat.

(3) ABC 340 Raghunath Karmakar, P.S.O., Supdt. of Police, Golaghat.

(4) APIF Driver LNK Kiran Gohain, Driver of Supdt. of Police, Vehicle.

As per the above mentioned reports, Shri Lohar succumbed to his injuries on 13-10-95 in the said H. P. Baruah Building despite the police having got him attended to once on 10-10-95 at 10 p.m. by Dr. Trailokya Saikia of Golaghat Civil Hospital.

It may be mentioned here that after the death of Shri Lohar on 13-10-95, Shri Awasthi brought Dr. Prahlad Nath of Golaghat Civil Hospital to the said H. P. Baruah Building and the latter declared him dead. There is no record of any case having been registered in this connection nor of PM Examination of the body as required by the law.

The body of Shri Lohar has since remained untraced. It therefore appears that the body has since been disposed off by the abovementioned accused persons to cause disappearance of evidence of the crime.

I would therefore, request you to register a case for Criminal Conspiracy, abduction, wrongful confinement, assault, murder and causing of disappearance of evidence and investigate.

On the basis of the said complaint, an F.I.R. being Golaghat P.S. Case No. 140/97 was registered on 3-5-1997 under Sections 120B/ 365/343/325/302/201, I.P.C.

Now apprehending that the petitioner may be arrested by police in connection with the aforesaid case, he has filed this application for anticipatory bail.

3A. I have heard Mr. A. Sarma and Mr. J.M. Choudhury, learned counsel for the petitioner and Mr. Sk. Noor Mohammad, learned Public Prosecutor, Assam.

Learned counsel for the petitioner advanced the following grounds for granting anticipatory bail to the petitioner:

(i) That the petitioner is a responsible police officer and a member of the Indian Police Service and, as such, he is not likely to abscond;

(ii) that the petitioner has been placed under suspension and hence he is not in a position to interfere with the investigation;

(iii) that the alleged incident occurred some time in Oct. 1995 and F.I.R. was lodged on 3-5-1997 and, therefore, due to this inordinate delay in lodging the F.I.R., the prosecution story suffers from a wide credibility gap;

(iv) that the incident occurred in Oct. 1995 and investigation started since registration of the F.I.R. on 3 -5-1997. So the important witnesses, whose statements might have been recorded in course of the investigation after a passage of a year and a half since the time of occurrence, cannot be said to be reliable due to their failure to report the matter to the police within a reasonable time;

(v) that bail is rule and its refusal is exception.

The aforesaid is the gist of various contentions raised by the learned counsel for the petitioner.

It is undoubtedly true that bail is rule and its refusal is exception. But certainly not in all cases that bail is rule and its refusal is exception. When a person is accused of serious offences like murder, etc., the Court has to be careful and circumspect in entertaining an application for anticipatory bail as it intrudes into the sphere of investigation of crime and some very compelling circumstances must be made out for granting anticipatory bail in such cases. In this regard reference may be made to what has been laid down by the Supreme Court in Pokar Ram Vs. State of Rajasthan and Others, Again in Union of India (UOI) and Others Vs. Arun Kumar Roy, cannot be mechanically applied. The words "if it thinks fit" occurring in Sub-section (1) of Section 438 of the Code clearly indicate that an order granting anticipatory bail on the face of it must show reasons for making such order and such reasons must be of compelling nature in cases of serious offences like murder, dowry death, etc. Apart from the seriousness and magnitude of the offence, the High Court, while considering a prayer for anticipatory, bail, has to weigh and consider many other factors, viz. whether granting of anticipatory bail may occasion prejudice to the investigation, whether accused is in a position to influence the witnesses by intimidation, terrorisation, or other methods. Therefore, the aforesaid considerations will determine the question as to whether in a given case bail should be the rule or its refusal should be the rule.

Learned Public Prosecution has produced the case diary. I do not like to divulge the contents of the case diary. So far I have referred to the contents of the F.I.R. and the report submitted by the District and Sessions Judge, Golaghat after completing his enquiry only. It may be sufficient to mention here that a large number of witnesses including quite good number of eye-witnesses have been examined by the I.O. Statements of these witnesses were also recorded by the Chief Judicial Magistrate, Golaghat u/s 164, Cr.P.C. One of the accused, namely, driver of the escort vehicle of the petitioner made confessional statement before the Chief Judicial Magistrate, Golaghat. This driver was allegedly involved in the disposal of the dead body. All these statements and confession clearly implicate the petitioner and some of his associates and show that Jyoti Lohar was tortured to death by them and his dead body was secretly disposed of. Jyoti Lohar was kept in confinement and tortured between 9-10-1995 and 13-10-1995 arid he died at about 2.15 p.m. in the said "Baruah Bungalow". Therefore, there is more than enough materials in the case diary as to the involvement of the petitioner in the confinement, torture and murder of Jyoti Lohar and ultimately in the disposal of his dead body.

But it is undoubtedly true that there was an inordinate delay in lodging the F.I.R. and recording the statements of witnesses. In normal circumstances, this inordinate delay would have been sufficient to disbelieve the alleged eye witnesses'' version. But then it is a case of unsual nature. It is not invariable rule of law in every case of such delay in lodging the F.I.R. and recording of the statements of witnesses that the eye-witnesses'' version should be discarded. It is a matter of appreciation of evidence in the facts and circumstances of each case.

Here in the instant case, prosecution story is that Jyoti Lohar was tortured in confinement between 9-10-1995 and 13-10-1995. Due to such torture he died on 13-10-1995. During this period brother and other relations/friends of Jyoti Lohar were virtually moving from pillar to post to trace out Jyoti Lohar. On a number of occasions they approached the aforesaid Police Station for this purpose. But all their appeals and requests to the police authority fell on deaf ears for reasons not very far to seek. There was complete non-cooperation from the side of the law enforcing authorities. As already noted, Jyoti Lohar died on 13-10-1995. Having failed to evoke any response from the local police authority, brother of Jyoti Lohar filed Civil Rule (HC) No. 48/95 in this Court on 16-10-1995 for production of Jyoti Lohar. Soon after that other two relations/friends of Jyoti Lohar filed another writ petition being Civil Rule No. 4564/95 in this Court. One of the petitioners in the writ petition was actually eyewitness to the torture upon Jyoti Lohar. In fact both the writ petitions were filed within a few days of the occurrence. In these writ petitions all necessary statements were made by them as to how three other persons and Jyoti Lohar were first called to Dergaon P.S. and then to Golaghat P.S. and later on to "Baruah Bungalow" under specific instruction of the petitioner and as to how they were tortured by the petitioner himself and others at Dergaon P.S. then in the "Baruah Bungalow". Further statements were made in these two writ petitions that though other three persons including one of the petitioners of Civil Rule No. 4564/95, namley, Montu Gogoi returned home with injuries after they were tortured, Jyoti Lohar did not return and he remained untraced since then. They also made necessary statements in these two writ petitions as to how they informed the matter to the two Police Stations and requested the police authorities to trace out Jyoti Lohar. But the police did nothing in this regard. As the police did not record the information/statements given by them soon after the occurrence, the writ petitioners of these two writ petitions were left with no option but to file the two writ petitions and got all the necessary information within their knowledge recorded in the writ petitions at the earliest opportunity. In course of the enquiry conducted by the learned District and Sessions Judge, Golaghat, pursuant to direction issued by this Court in one of those two writ petitions, some important witnesses including eye-witnesses to torture upon Jyoti Lohar were produced by those writ petitioners and they made all necessary statements and got them recorded by the District Judge. Upon receipt of the enquiry report along with the statements of witnesses, this Court issued necessary direction and accordingly, F.I.R. was registered in this matter and in course of the investigation, police recorded the statements of a large number of witnesses including statements of quite a good number of eye-witnesses. Further statements of eye-witnesses and the confession of one of the accused were recorded by the Chief Judicial Magistrate u/s 164, Cr.P.C. Therefore, the delay in registering the F.I.R. and in (recording the statements of witnesses have been amply explained. If the aforesaid circumstances transpiring from the case diary and other records of the case placed before me are believed, then one is constrained to hold that it is the petitioner himself as the highest police officer of the District and his other subordinate police officers who were solely responsible for this inordinate delay in registering the F.I.R. and recording of statements of other important witnesses. That apart, these are the questions of appreciation of evidence during trial and this is certainly not the stage for appreciation of evidence. Normally, in an application for bail it disirable that Courts should avoid elaborate documentation of merits and detailed examination of evidence. But in view of the unusual nature of this case and inordinate delay in registering the F.I.R. I have discussed the case elaborately to prima facie show that such delay may not be sufficient for allowing this application for anticipatory bail in view of the stage of the case. That apart, in view of the peculiar facts and circumstances of this case, I am prima facie satisfied that such delay was perhaps unavoidable on the part of the prosecution witnesses whose statements have been recorded in course of the investigation.

It is true that the petitioner is a responsible police officer, a member of Indian Police Service and hence he may not abscond. But on this ground alone his prayer for anticipatory bail cannot be allowed. At this stage in an application for anticipatory bail I cannot rule out the possibility that perhaps it was this position of the petitioner as the highest police officer of the District that gave him the opportunity to manipulate things so that no F.I.R. could not be registered within a reasonable time. I further find from the instruction which the learned Public Prosecutor has received from the I.O. that the General Diaries of the concerned police stations have been taken away by the petitioner though such General Diaries of the police stations of the relevant period may throw good amount of light on the circumstances as to who Jyoti Lohar was taken into custody without authority of law and as to whether he was tortured or not. I find that neither the dead body of Jyoti Lohar nor concerned General Diaries of the Police Station could yet the recovered and, therefore, it may not be proper to grant anticipatory bail to the petitioner as his release on bail may prevent the police from recovering the aforesaid General Diaries as well as the dead body of Jyoti Lohar. There are also other allegations that the petitioner interferred with investigation.

In the aforesaid circumstances I am of the view that in view of the nature of the contents of the case diary and history of the case as narrated above, it will be in the interest of justice to allow this petition. Accordingly, the petition is dismissed. The interim order passed earlier in this regard stands vacated. In this order I might have made some observations touching upon the inherent merit of the case. But I have made those observations in the context of an application for anticipatory bail. Therefore, these observations should not influence the trial-Court in course of trial of the case, as these observations are of prima facie nature and are made in the context of an application for anticipatory bail.

After the above order was dictated in the open Court, Mr. A. Sarma, learned counsel for the petitioner prayed that the operation of the order passed today disposing of the petitioner''s prayer for bail may be stayed till reopening of the Supreme Court after the summer vacation so as to give an opportunity to the petitioner to approach !he Supreme Court.

Heard learned counsel for the petitioner as well as the learned Public Prosecutor. In view of the serious nature of the case and delayed investigation of the matter, I do not consider it to be a fit case to stay operation of my order any further. Accordingly, the prayer for stay is rejected.