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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CONTEMPT PETITION (CRL.) No.7 of 2010
(In Criminal Appeal No.2323 of 2011 (Arising out of Special
Leave Petition (Crl.) No. 666 of 2010)
P. Mahalingam ...... Applicant
Versus
Monica Kumar & Anr. ......
Respondents
WITH
CRIMINAL APPEAL NO.2323 OF 2011
(Arising out of Special Leave Petition (Crl.) No. 666 of 2010)
Monica Kumar & Anr. ......
Appellants
Versus
State of U. P. & Ors. ......
Respondents
O R D E R
A.K. PATNAIK, J.
Criminal Appeal No.2323 of 2011 (Arising out of Special
Leave Petition (Crl.) No. 666 of 2010)
Leave granted.
2. This is an appeal by way of special leave under Article 136
of the Constitution against the order dated 05.12.2009 of the
Division Bench of the Allahabad High Court dismissing the
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Criminal Misc. Writ Petition No.23839 of 2009 of the
appellants.
3. The relevant facts as stated in the Special Leave Petition
briefly are that the appellants studied M.B.B.S. course in the
Santosh Medical College at Ghaziabad in Uttar Pradesh and
respondent No.2 is the Chairman of the Maharaji Educational
Trust which has established the medical college. The appellant
No.1 filed Writ Petition No.33 of 2009 in this Court under
Article 32 of the Constitution complaining of harassment by
respondent No.2 and by the police and on 13.05.2009, this
Court passed orders directing issue of notice in the writ
petition. On 22.05.2009, the Registrar of this Court directed
that the notice be served by way of dasti on the unserved
respondents in the writ petition. When the appellants went to
serve the respondent No. 4, who was then the SHO of Police
Station Sector 39, NOIDA, Gautam Budh Nagar, U.P., on
28.05.2009 at about 10.30 A.M., the respondent No.4 and his
subordinates started brutally assaulting them with lathis,
shoes and fists and caused numerous injuries on all parts of
their bodies. Thereafter, the appellants got themselves
examined at Lok Nayak Government Hospital, New Delhi, and
an x-ray of the hand of appellant No.1 was also taken which
disclosed a fracture and thus her left hand was put in plaster.
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The appellants made a written complaint to the Senior
Superintendent of Police, NOIDA, on 29.05.2009 but he refused
to accept the complaint.
4. The appellants then filed Criminal Misc. Petition No.9226
of 2009 in Writ Petition (Criminal) No.33 of 2009 complaining of
the aforesaid assault and on 07.07.2009, this Court passed an
order that the Criminal Misc. Petition be placed along with the
main matter and in the meanwhile directed the appellants to
approach the District Magistrate, NOIDA, regarding the
grievances. The appellants approached the District Magistrate,
NOIDA, but they were informed that he was on vacation. The
City Magistrate, however, called the appellants to his office and
took the video recorded statements but did not do anything in
the matter. On 20.07.2009, this Court dismissed the Writ
Petition (Criminal) No.33 of 2009 and granted liberty to the
appellants to approach the High Court under Article 226 of the
Constitution, if so advised. Thereafter, the appellants filed Writ
Petition (Criminal) No.23839 of 2009 before the High Court
praying inter alia for a CBI inquiry into the incident which took
place on 28.05.2009 when the appellant had gone to serve dasti
summons on respondent No.4. The High Court, however, held
in the impugned order that in this case the FIR had not been
registered and there was no question for considering any prayer
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for CBI inquiry at this stage and instead directed that the
appellants may file an application under Section 156(3) of the
Criminal Procedure Code, 1973 (for short `the Cr.P.C.') and in
case any such application is filed, the Magistrate may pass
appropriate orders thereon. With the aforesaid observations,
the High Court dismissed the writ petition.
5. The respondent No.4 has filed an affidavit stating that the
appellants were not assaulted in the police station on
28.05.2009 as alleged by the appellants. In the affidavit,
however, the respondent No.4 has stated that on 28.05.2009
when the appellant had gone to the Police Station to serve the
dasti summons, it was noticed that they were video recording
with a sting camera and this was objected to and articles were
seized from them in the presence of three public witnesses and
the appellants gave an apology later.
6. The appellants have filed a rejoinder reiterating that they
were assaulted on 28.05.2009 at 10.30 A.M. and they were
detained in the Police Station of Section Sector 39, NOIDA, for 4
to 5 hours and during this period the appellants were
repeatedly assaulted and abused and the appellant No.1 was
molested by respondent No.4 and they were released only after
the mother of the appellants called the Senior Superintendent
of Police of NOIDA, who thereafter called the respondent No.4 to
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release the appellants at about 4.00 P.M.
7. After hearing learned counsel for the parties, we passed
orders on 11.05.2010 directing the District and Sessions
Judge, Gautam Budh Nagar, U.P., to enquire into the incident
of 28.05.2009 when the appellants had gone to serve the dasti
summons of this Court and pursuant to the aforesaid order
dated 11.05.2010, the District and Sessions Judge, Gautam
Budh Nagar, U.P., assigned the inquiry to the Additional Chief
Judicial Magistrate III of Gautam Budh Nagar, U.P., who after
conducting the enquiry has submitted the report dated
16.11.2010. We have considered the objections to the report
and heard learned counsel for the parties. The conclusions in
the report dated 16.11.2010 of the Additional Chief Judicial
Magistrate III of Gautam Budh Nagar, U.P., are extracted
hereinbelow:
"1. Ms. Monica Kumar and Shri Manish Kumar had
gone to Sector 39 Police Station in NOIDA on
28.05.2009 for serving a dasti notice of Hon'ble
Supreme Court upon Shri Anil Samania, Station
House Officer, Sector 39 Police Station in NOIDA.
2. Ms. Monica Kumar and Shri Manish Kumar were
subjected to brutality in Sector 39 Police Station,
NOIDA by Shri Anil Samania, Inspector, Shri J.K.
Gangwar, Sub Inspector and few Constables.
3. Tailored entries have been made on 28.05.2009
in the General Diary of the Police Station for cover
up.
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4. The complaint in the matter was made with
serious allegations against Shri Anil Samania but
the complaint was not dealt with properly and the
matter was given a decent burial.
5. The Sub-Inspector, In-Charge of the Complaint
Cell in the office of the Senior Superintendent of
Police, Gautam Budh Nagar, Shri Rishi Pal Singh,
failed in his duty to place the complaint before the
higher authorities for proper action in the matter.
6. The Superintendent of Police (Traffic), Gautam
Budh Nagara, Shri Ajay Sahdav, failed in his
supervisory duty in as much as without perusal of
the accusations in the complaint and the action
taken/required thereon, allowed entombment of the
grievance in the complaint.
7. The Senior Superintendent of Police, Gautam
Budh Bagar Shri Ashok Kumar Singh appears to
have shut his eyes to what had happened in the
Police Station on 28.05.2009.
8. Involvement of Dr. P. Mahalingam in the incident
on 28.05.2009 could not be established. Thus, it
cannot be said that the complainants were packed
down at the will of the Chairman of Santosh
Medical College, Ghaziabad, Shri P. Mahalingam."
8. Thus, the conclusions in the report dated 16.11.2010 of
the Additional Chief Judicial Magistrate quoted above are that
the appellants were subjected to brutality in Sector 39 Police
Station, NOIDA, by Inspector Anil Samania (Respondent No.4),
Shri J.K. Gangwar, Sub-Inspector and few constables and
tailored entries were made on 28.05.2009 in the General Diary
of the Police Station for a cover up and when a complaint was
made to the Senior Superintendent of Police, Gautam Budh
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Nagar, U.P., the Sub-Inspector, In-charge of the Complaint Cell
Shri Rishipal Singh failed in his duty to place the complaint
before the higher authorities for proper action in the matter.
The further conclusion in the report dated 16.11.2010 of the
Additional Chief Judicial Magistrate is that the Superintendent
of Police (Traffic), Gautam Budh Nagar, U.P., Ajay Sahdav,
failed in his supervisory duty and allowed entombment of the
grievance in the complaint and the Senior Superintendent of
Police, Gautam Budh Nagar, Ashok Kumar Singh appears to
have shut his eyes to what had happened in the Police Station
on 28.05.2009. The conclusions in the report dated
16.11.2010 of the Additional Chief Judicial Magistrate prima
facie establish acts and/or omissions of the various police
personnel which were committed when the appellants had gone
to the police station to serve the dasti summons issued by this
Court and which amount to misconduct of serious nature. We,
therefore, direct the respondent No.1 to treat the report dated
16.11.2010 of the Additional Chief Judicial Magistrate III of
Gautam Budh Nagar, U.P., as a preliminary report and initiate
disciplinary proceedings against the police personnel named in
the conclusions thereof and conduct the disciplinary
proceedings in accordance with the relevant rules, giving to the
police personnel reasonable opportunity of being heard in
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respect of the charges as provided in the Rules and in Article
311(2) of the Constitution and complete the disciplinary
proceedings within one year from today.
9. It will also be open for the appellants to file criminal
complaint under Section 200 of the Cr.P.C. on the basis of the
conclusions in the report dated 16.11.2010 of the Additional
Chief Judicial Magistrate III of Gautam Budh Nagar, U.P.,
before the appropriate Magistrate for prosecuting only those
police personnel who are alleged to have committed any offence,
and if such a complaint is filed, the same will be dealt with in
accordance with law.
10. The impugned order of the High Court is set aside and the
appeal is allowed to the extent indicated above. No costs.
Contempt Petition (Crl.) No.7 of 2010 in Criminal Appeal
No.2323 of 2011 (Arising out of Special Leave Petition (Crl.)
No. 666 of 2010)
When this Contempt Petition was heard along with S.L.P.
(Crl.) No.666 of 2010, Mr. K.K. Venugopal, learned counsel for
the applicant, submitted that an apology has been given by the
contemnors pursuant to the orders passed by this Court in
Criminal Appeal No.968 of 2009 (arising out of S.L.P. (Crl.)
No.5593 of 2006) and this apology is in force. He further
submitted that the facts stated in the Contempt Petition would
show that the contemnors are repeatedly intimidating the
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applicant and his family members and for this reason the
applicant has made a prayer to the Court to pass an order
commanding the contemnors not to enter within 100 metres of
the premises of Santosh Medical College and its administrative
block, hospital, hostel and the residence of the applicant.
2. In reply, Mr. Prashant Bhushan, learned counsel for
the contemnors, relying upon the averments in the
reply, submitted that Santosh Medical College is next
to the residence of the contemnors and that the
Medical College is on the main public road, which is
the only road that leads to the city and shopping
complex from the residence of the contemnors. He
submitted that the bank and the public transport are
also next to the office of the Medical College. He
submitted that if any order as prayed for by the
applicant is passed by this Court then the contemnors
will be deprived of access to the city and the shopping
complex as well as the bank and the public transport.
3. We cannot possibly direct the contemnors not to go to
any public place such as the public road, bank,
shopping complex but considering all aspects of the
matter, we direct that the two contemnors will not
enter into the premises of Santosh Medical College, its
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administrative block, its hospital, its hostel and the
residence of the applicant. The Contempt Petition is
disposed of accordingly.
..........................J.
(Dalveer
Bhandari)
..........................J.
(A. K.
Patnaik)
New Delhi,
December 16, 2011.
