P.Mahalingam vs Monica Kumar & Anr

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.