Jaywant P. Sankpal vs Suman Gholap & Ors

Jaywant P. Sankpal ... Petitioner

Vs.

Suman Gholap & Ors. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. The Petitioner herein has challenged the order

of the Bombay High Court dismissing the Criminal

Writ Petition No.1839 of 2005, in which he had

challenged the order dated 19th October, 2004,

passed by the Maharashtra State Human Rights 2

Commission in Case No.1912/2002/3258. The

complainant in the said case was one Smt. Suman

Sriram Gholap, the Respondent No.1 herein. In the

said complaint, the State of Maharashtra was made

the Respondent No.1 through the Commissioner of

Police, Brihan Mumbai. The Respondent Nos.2, 4 and

5 were police personnel attached to Shahunagar

Police Station, Mumbai-17. The Petitioner herein

was made the third Respondent in the said complaint

case. It was the case of the complainant that the

Respondents had violated the human rights of one

Baban, the son of the complainant, within the scope

of Section 12(a) of the Protection of Human Rights

Act, 1993.

2. The facts revealed in the complaint and which

came to light during the hearing thereof by the

Maharashtra State Human Rights Commission, Mumbai,

hereinafter referred to as "the Commission",

indicate that the complainant, who is a widow, had 3

two sons, one Kisan and the other Baban. She

resides in Sanjay Gandhi Nagar Zopadpatti, Matunga,

and works as a domestic servant to earn her

livelihood. Her elder son, Kisan, lives with his

family at Vashi at New Mumbai and the complainant

lives with her unmarried younger son, Baban, at

Matunga. In 1998, Baban was arrested by the Dharavi

Police in connection with a case which was tried by

the Court of Sessions and he was acquitted in

respect thereof on 2nd May, 2002. Thereafter,

various cases were lodged against Baban and after

his acquittal in the case filed by the Dharavi

Police, he left Matunga and went to reside with his

elder brother at Vashi where he earned a living by

selling fruits as a street vendor. On weekends he

used to come to see the complainant and on 30th

June, 2002, he had come to Matunga to meet the

complainant. While he was at his mother's place of

residence, the Respondent No.4 before the Human

Rights Commission, ASI K.R. Kubel, along with some 4

other police personnel, came and asked Baban to

accompany them to the police station. He was,

however, released on the next day.

3. On 8th August, 2002, at about 8.00 a.m., Baban

had gone to the stall of one Abbas Bhai.

According to the complainant, he was assaulted and

injured by the said Abbas Sayyed Ali Kadri @ Abbas

Ali. The complainant took him with bleeding

injuries to the police station where she was asked

to wait by the Duty Officer. In the meantime, the

said Abbas Ali and his three brothers and some

women came to the police station and soon

thereafter the police personnel came out and

started assaulting Baban. The petitioner herein

told the complainant to leave the police station.

It is the complainant's case that she was also

abused and forcibly removed from the police

premises while Baban was detained. An hour later, 5

the police personnel took Baban to hospital while

the complainant went home.

4. It is also the complainant's case that when in

the evening she went to the police station to

enquire about her son, she saw that he had been

placed in the police lockup. She was thereafter

informed by Havildar Kubel that her son would not

be released from the police station and,

accordingly, next day she went to the Court of the

Magistrate at Bandra, where Baban was to be

produced for the purpose of remand. It was

mentioned by the complainant in her complaint that

she had been threatened by the police officers in

question not to reveal the incidents of the

previous day, but when Baban was produced she

noticed that he had bandages all over his body and

there were injuries on his back and hand. The

complainant was threatened not to make any

complaint to the Court as otherwise her son would 6

be involved in other crimes. Subsequently, Baban

was released on bail on 6th September, 2002, but

was, once again, taken to the police station on 30th

September, 2002, and was assaulted allegedly on the

ground that he had assaulted Abbas Ali's son. It

was the grievance of the complainant that instead

of recording the complaint made by her or her son

against Abbas Ali, the police registered a case

against her son at the behest of Abbas Ali and

illegally detained him in policy custody till he

was released on bail. She also submitted that the

police had been harassing her and her sons without

any cause or justification and appropriate action

should, therefore, be taken against them.

5. The complainant's allegations were fully

supported by her son Baban who reiterated that he

had been ill-treated by the police personnel.

6. In reply to the charges against the

Respondents, all the Respondents filed their 7

respective replies denying the allegations, and in

particular, in the report submitted by the Deputy

Commissioner of Police, Zone V, Worli, Mumbai, it

was mentioned that the complainant's son, Baban,

had gone to the shop of Abbas Ali on 8th August,

2002, and demanded a sum of Rs.5,000/- as `hafta'.

On Abbas Ali's refusal to pay the same, Baban

assaulted him with a razor and threatened him that

he would come again the next day. After being

treated at Sion Hospital, the said Abbas Ali lodged

a complaint with the Shahunagar Police Station, on

the basis of which Crime No.99 of 2002 was

registered against Baban under Sections 387 and 324

IPC, in pursuance whereof Baban was arrested. The

report of the Deputy Commissioner of Police also

revealed that Baban was a habitual offender against

whom several criminal cases had been initiated

under Sections 326, 114, 379, 452, 342 and even 376

IPC between 1992 and 1995 with the Dharavi Police

Station. It was also pointed out that proceedings 8

for detention had also been commenced against Baban

under the Maharashtra Preventive of Dangerous

Activities of Slumlords, Bootleggers & Drug

Offenders Act, 1981.

7. As far as the police personnel, including the

petitioner herein, are concerned, they had only

arrested the complainant's son on the complaint

made by Abbas Ali, who is a food grain merchant at

the Gandhi Nagar Labour Camp, Mumbai, under

Sections 387 and 324 IPC and they had acted on the

instructions of their superiors. Reference was

also made to an order of detention which had been

passed against Baban on 27th February, 2002, and the

various other crimes registered against him and his

brother Kisan with the Dharavi Police Station.

8. On the basis of the said allegations, a

complaint came to be filed by the Respondent No.1

before the Maharashtra State Human Rights

Commission, Mumbai, alleging that instead of 9

recording the complaint made by her or her son

against Abbas Ali, the Petitioner and the

Respondent Nos.3 to 5 showed undue indulgence to

the said Abbas Ali by registering a case against

her son at the behest of Abbas Ali and illegally

detained him in police custody till he was released

on bail. Upon notice being served, the Petitioner

herein and the other Respondents appeared before

the Commission and filed their respective

affidavits, which were considered in detail by the

Commission. The Commission noticed that no

affidavit had been filed on behalf of Abbas Ali nor

was any oral evidence adduced on his behalf.

Furthermore, no attempt was made by any of the

police officers, including the Petitioner herein,

to summon the witnesses to the occurrence according

to their version. Ultimately, the Commission

observed as follows :-

"On appreciation of the discrepancies and contradictions in unfolding the alleged 10

incident either of extortion or assault by Baban on Abbas Ali, it seems that the entire version presented in defence is nothing but a concoction."

9. On the other hand, the complainant and her son

Baban had stated that when they rushed to the

police station to lodge a complaint, they were

asked to wait outside. After some time, Abbas Ali

and his brothers and some women came to the police

station and they were entertained first by the

police and though Baban was the victim of the

assault, he was illegally arrested. The Commission

also disbelieved the defence of the police

personnel that Baban inflicted injuries with a

razor on himself having regard to the medical

evidence of Dr. Raju Patel of the Lokmanya Tilak

General Hospital, which did not support such

theory. The Commission also took note of the

Doctor's evidence that Baban had complained of

chest pain and had been removed to hospital at 2.30

a.m. He was treated for tenderness over the left 11

anterior chest, which indicated hairline fracture

on his ribs. In the said facts, the Commission

had no hesitation in holding that there had been

violation of Baban's human rights at the hands of

the Respondent Nos.3, 4 and 5 and the Petitioner

herein. On account of the above, the Commission

recommended as follows :-

"(a) the State Government shall pay to the complainant on behalf of the victim of Police atrocity a sum of Rs.45,000/-

as compensation and recover the same from the respondents PSI Shri G.G. Navele, PSI Shri J.P. Sankpal, PSI Shri K.R. Kubal equally;

(b) that the State Government shall submit within six seeks from the receipt of these directions its compliance report to the Commission."

10. The said order of the Commission was challenged

by the Petitioner herein before the Bombay High

Court, which dismissed the same by the impugned

order dated 30th August, 2006, indicating that since

the State of Maharashtra had not challenged the 12

order dated 19th October, 2004, passed by the

Commission and had also complied with the same,

there was no necessity of entertaining the writ

petition, particularly, on account of the fact that

an earlier petition filed by the Petitioner herein

where he had sought relief challenging the said

order came to be withdrawn.

11. Appearing for the Petitioner, Mr. K.N. Rai,

learned Advocate, submitted that the antecedents of

Baban, the son of the Respondent No.1 herein, would

clearly go to show that he was a habitual offender

and had been involved in various criminal cases

registered against him as he was creating a reign

of terror in the minds of the public in the Matunga

Railway Colony, Sanjay Gandhi Nagar, Kunchi Kurve

Nagar, Matunga Labour Camp and areas adjoining

thereto, within the jurisdiction of Dharavi and

Shahunagar Police Stations, and had even been

detained under the Maharashtra Preventive Detention 13

Act by the Commissioner of Police, Greater Mumbai,

which order has been confirmed by the Advisory

Board. Mr. Rai submitted that the Commission had

overlooked the affidavits filed by the Petitioner

and the Respondent Nos.3 to 5 as well as the report

of the Deputy Commissioner of Police, Zone V,

Worli, Mumbai. Mr. Rai submitted that aggrieved by

the recommendation made by the Commission, the

Petitioner had filed Writ Petition No.975 of 2005

in the Bombay High Court which was withdrawn on

account of the understanding given to him on behalf

of the State of Maharashtra that it had decided not

to implement the order passed by the Commission.

Mr. Rai submitted that the same should not be taken

into consideration while considering the writ

petition which had subsequently been filed

challenging the order of the Commission, since the

earlier writ petition was withdrawn on the basis of

an occurrence which never materialised. 14

12. Mr. Rai lastly submitted that there was nothing

on record to indicate that Baban had actually been

assaulted by the Petitioner or the Respondent Nos.3

to 5, except for the allegations made by him and

the statement made by the doctor that he had

noticed certain tenderness over certain parts of

Baban's body. Mr. Rai urged that having regard to

the antecedents of Baban, the defence taken that he

had inflicted injuries on himself with a razor in

order to implicate the Petitioner and the

Respondent Nos.3 to 5, could not be ruled out and

ought not to have been rejected by the Commission.

13. As far as the State of Maharashtra is

concerned, it has been submitted that the

recommendation of the State Human Rights Commission

had since been implemented and since the State had

chosen not to challenge the order of the

Commission, no separate submission would be made on

behalf of the State.

15

14. Having regard to the special emphasis laid by

Mr. Rai on Baban's antecedents, we have carefully

considered the order of the Commission which was

upheld by the High Court and we see no reason to

differ with the same. There is sufficient

material, which has been duly looked into by the

Commission and the High Court that the son of the

Respondent No.1 had been physically tortured while

in custody in violation of the norms relating to

custody of persons arrested or detained in

connection with any offence. It is not for us to

appraise the evidence further since two forums have

had a chance to look into the same. Except for a

bare denial, there is no material on record to

refute the complaint of torture of Baban by the

Petitioner and the Respondent Nos.3 to 5. It is

clear that for whatever reasons, which could also

include his antecedents, he was treated differently 16

from Abbas Ali against whom he had come to make a

complaint and ended up being the accused.

15. In such circumstances, we are not inclined to

interfere, either with the order of the Commission

or the High Court, and the Special Leave Petition

is, accordingly, dismissed.

......................................................J. (ALTAMAS KABIR)

................................................J. (DR.MUKUNDAKAM SHARMA) New Delhi Dated:28.07.2010