Shiv Dev Singh vs Senior Superintendent of Police, Batala

R.L. Anand, J.

Shri Shivdev Singh son of Sunder Singh resident of village Bhaini Banger, District Gurdaspur earlier filed a writ petition in this court under Article 226 of the Constitution of India, seeking directions of this court to release Kashmir Singh, his son, who according to the petitioner was in the illegal custody of the respondents S.S.P. Batala and Gian Singh, S.H.O. Police Station, Qadian, District Gurdaspur. It was further prayed by the petitioner that an independent enquiry be instituted into the illegal detention of Kashmir Singh and his torture by third degree methods by the police because of which the hip joints of his son had been fractured. The petitioner also prayed for awarding of the compensation.

This petition came up for hearing before Hon''ble Mr. Justice P.K. Jain on 17.1.1997. His Lordship directed Sessions Judge, Gurdaspur to hold fact finding enquiry into the following matters :

(1) Whether the detenu Kashmir Singh was tortured and given beatings whilst in police custody as alleged in the present petition.

(2) Whether the report dated 30.12.1995 prepared by the Medical Board constituted by the Senior Medical Officer, Civil Hospital, Gurdaspur regarding the examination of the detenu Kashmir Singh has been genuinely prepared. It was also directed by Hon''ble Mr. Justice P.K. Jain to the Sessions Judge, Gurdaspur that while examining this question, the two orders dated 30.12.1995 and 4.1.1996 passed by the court of Chief Judicial Magistrate, Gurdaspur shall also be kept in view.

Two more points were referred by his Lordship but those are of no significance for the purpose of the present order.

In pursuance to the directions given by the High Court, learned Sessions Judge, Gurdaspur conducted the enquiry. Regarding point No. 1, it was finally observed by the Enquiry Officer that "therefore, there is not an iota of evidence that Kashmir Singh detenu was tortured and was given beating in police custody by Gian Singh as alleged in the writ petition. With regard to point No. 2, it was observed by the Enquiry Officer that "the injury on the person of Kashmir Singh could be caused by a fall cannot be ruled out and the statement of Kashmir Singh that he had received this injury by fall when he was urinating in the court complex leads to the inference that the medical report dated 30.12.1995 Ex. PA is genuine one." When this report was being considered by this court on 8.9.1998, a document came to my notice which is the medicolegal report No. 104/GS/95 of Shri Kashmir Singh son of Shivdev Singh. A perusal of the said report establishes that Kashmir Singh was got medically examined by the police from the Medical Officer Incharge, Civil Hospital, Qadian on 28.12.1995. A reading of the report would further show that the date of arrival of the injured in the said hospital was 27.12.1995 at 4.30 p.m. Shri Gurmeet Singh ASI of Police Station Qadian was accompanying the injured at that time. Kashmir Singh was medically examined on police request which was made before the Doctor on 28.12.1995 at 10.00 a.m. The operative portion of the findings as per Medico Legal Report is as follows :

"Complains of pain. Both hip joints. Patient is unable to bear weight on both legs. Patient is unable to walk. Patient is unable to turn side by side. Kept under Xray hip joint and lumbosacral spine. Patient is passing urine and flatus normally. Intestinal sounds are positive. Pin prick sensation one positive on both legs. (There is no sensuously loss). Flexan movement on point on both feet. Patient is having slight (100F) fever and complains of pain abdomen."

In these circumstances, the anxiety of this Court arises to find out whether a person with the above type of injuries as noticed by the Doctor on 28.12.1995 would become normal in one day as opined by the Board of Doctors who gave the opinion to the following effect :

"There is no neuroligical loss both the lower limbs. All the joints are normal."

The court prima facie observed that only a miracle was required to make a patient alright within a span of one day and this has not happened in the present case. Rather the finding of the court was that Kashmir Singh was found in injured condition while in the police custody on 28.12.1995 and it should be reasonably inferred that he was tortured and that third degree methods were also used. In this view of the matter, I did not endorse the findings of the Enquiry Officer on points No. 1 and 2 and those were set aside. Fresh directions were given the learned District & Sessions Judge, Gurdaspur to reconsider the matter with the directions that the Enquiry Officer shall also take into consideration the medicolegal report No. 104/GS/95. Second time the matter was examined in depth by the Enquiry Officer who gave his second report dated 23.11.1998 and gave the following findings :

"Therefore, the fact that detenu Kashmir Singh was tortured by beating by Gian Singh, SHO is not proved on the record, but ASI Gurmit Singh has failed to explain the injuries on the person of Kashmir Singh and inference can be drawn against him, so far as points No. 1 is concerned. As regard point No. 2 is concerned, the report of the board of Doctors which has been proved by PW.1 Dr. Raj Kumar dated 30.12.1995 that is not genuine in view of MLR Ex. C.1 and statement of Dr. Gurmit Singh Chhina, C.W.1. Dr. Gurmit Singh Chhina found injuries on the person of Kashmir Singh in the report Ex. C.1 and the report of the doctors dated 30.12.1995 does not explain the circumstances as to how they found Kashmir Singh to move on foot and the legs were bearing weight and that he could walk, when he was not in such a position on 28.12.1995. Therefore, this fact can be best known to the doctors or there is a possibility that they might have been influenced by the police to give the report according to their wishes by ignoring the earlier injuries though the same were not physically visible."

Thus it can be said that with reasonable certainty that the report dated 30.12.1995 was not genuine affair and has been procured by Gurmeet Singh or police agency by putting extraneous pressure upon the Doctors who conveniently succumbed to the pressure of the police. Further it can be reasonably established that Kashmir Singh was tortured and the damage was caused to him when he remained in custody of ASI Gurmeet Singh. On these established facts, I would like to endorse the supplementary report of the learned Sessions Judge, Gurdaspur on points No. 1 and 2.

The ancillary point which survives for determination for this court is to see how Kashmir Singh son of the petitioner can be compensated for the injuries which he suffered through the functionary of the State Government and direction was given to the Civil Surgeon Gurdaspur to constitute a Board of Doctors in order to assess the damage which has been caused upon Kashmir Singh and the findings of the Board is as follows :

"On examination : There is shortening of left lower limb by one inch with Ch. osteomyelitis of left hip joint. There is no active movement of abduction, adduction flexion/extension of left hip joint.

Left knee joint : Only 30 degree flexion is possible. The movement of left ankle joint is normal. Muscle power left hip jointgrade III, left knee joint Grade IV and left ankle joint normal.

Right lower limb : No active movement of flexion, abduction/adduction at right hip joint. Ankle and knee joint movements are normal. Muscle power right hip grade III, right knee gradeIV and right ankle grade is normal.

Xray pelvis including both hip joints : Loss of head of left femur with upward displacement of upper end of left femur is seen.

There is an old fracture of neck of right femur (with nail and plate in situ) and osteoparosis on right side."

Finally the Board opined that Kashmir Singh cannot sit, squat/walk without support. In the opinion of the Doctors constituting the Board the disability in this case was 90 per cent which was permanent.

Fifty years have elapsed when our country became free from English regime. Still the working of the police has not changed. They are treating out citizens like animals and detain them illegally. Process of birth is the same for all but it is a matter of chance who is who. Still working of the police is on the same lines. The police persons who torture do not realise the value of human being. They have lost their hearts though it pumps in their bodies. When better sense will prevail in the working of the police, it is difficult to answer for this court. Only some supernatural power can protect the rights of the individuals so that they may be saved from the cruelties of the police. Inspite of the repeated directions given by the Hon''ble Supreme Court and by the National Human Rights Commission for the eradication of the atrocities upon the citizens of this country, there is no sense of realisation on the part of the persons in uniform. Such an action on the part of the functionaries of the State Government/Central Government cannot be accepted by the Law Courts which are custodian of the law.

Reverting to the compensation which is to be awarded to Kashmir Singh, I have to see different factors such as profession of the injured, age of the injured and agonies of the miseries which he faced and which he is supposed to face in future, and the extent of the damage which has been caused in this case. As per report of the Doctors of the Board in this case is 90 per cent and is permanent meaning thereby that Kashmir Singh is living by nail. As the alleged act of highhandedness has been committed by ASI Gurmeet Singh functionary of the State Government, therefore, the State is vicariously liable to pay compensation to Kashmir Singh apart from Gurmeet Singh. It has been informed to this court during the course of his submissions that Kashmir Singh was driver by profession working on a private bus and he was earning about Rs. 3,000/ per month when he picked up by the police without any valid reason. This court definitely cannot calculate the exact compensation which should be granted to Kashmir Singh but for his surviving interim compensation is to be paid. In this view of the matter, I award a sum of Rs. 1.5 lacs by way of interim compensation to Kashmir Singh which shall be paid by the State Government which has a right to recover from the defaulting officers/officials who were responsible for causing/inflicting injuries to Kashmir Singh. The compensation must be paid to Kashmir Singh within one month from date of receipt of copy of this order. A copy of this order be sent to the Chief Secretary of the State of Punjab and Director General of Police, Punjab for necessary action.

I would like to send copy of this order to the Director Health Services Punjab, Chandigarh bringing to his notice that all is not well in his department. If a Gazetted Officer like a Doctor can succumb to the pressure of the police then nothing more can be said about the other employees of the said department. It will be within the domain of the Director/Secretary, Health Services Punjab to take necessary action against the Doctors who gave false findings in the opinion in order to exonerate the police people. The petition stands disposed of.