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the Uttarakhand high court passed a judgement on 24^th September 2022 in the case Bharathi v. State of Uttarakhand (Writ Petition (Criminal) No.924 of 2021) the case was presided over by the honorable Mr. Justice Ravindra Maithani

FACTS OF THE CASE

The petitioner, on 03.03.2021, lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) against her husband Pravesh Kumar, which was lodged on 03.03.2021 at 11:55 PM at reporting Police Chowki Kundeshwari, Thana Kashipur. Pursuant to this FIR, on 04.03.2021, Pravesh Kumar was arrested and lodged at Police Station. An entry was made to this effect in GD Report No. 30, at reporting Police Chowki Kundeshwari, Thana Kashipur. The report reveals that Pravesh Kumar was hale and hearty and he had no injuries. Pravesh Kumar was remanded to judicial custody on 05.03.2021 by the court of Additional District Judge/FTC/Special Judge, POCSO, Udham Singh Nagar. The remand sheet does not note any injury on his person. On 05.03.2021 at 04:29 PM, Pravesh Kumar was lodged at Sub-Jail Haldwani. Entry was made in jail register at SL. No. 24. When he entered into Sub- Jail, Haldwani, he was also examined for COVID-19 and the report was “Negative”. On the same day, in the hospital of Sub-Jail, Haldwani, Pravesh Kumar was examined, but no injury was noted in his person. It was noted that he was “chronic alcoholic”. On 06.03.2021, in the hospital of Sub-Jail, Haldwani, in its OPD register at SL No. 164 an entry was made that Pravesh Kumar suddenly fell down on the ground and he was referred to Base Hospital, Haldwani. In the Base Hospital, Haldwani, Pravesh Kumar was taken, where in OPD Register at SL No. 29, it was recorded that he was brought dead. His post mortem was conducted. There were ten injuries on his person.

The petitioner was informed about the death of her husband. She noticed injuries on the person of her husband. The injuries were not explained to her. According to the petitioner, on 13.03.2021, a Rahul Shrivastav telephoned her and informed that on 06.03.2021 at about 02:00 PM Pravesh Kumar (hereinafter referred to as, “the deceased”) was quite upset in the Sub-Jail, Haldwani and was making a lot of noise. Therefore, he was beaten up by danda, patta, kicks and fists by Devendra Prasad Yadav, Head Constable, Kriti Nainwal, Devendra Rawat and Harish, all Guards of Sub-Jail, Haldwani. Due to this beating, the deceased fell down. Rahul Shrivastav had told that he was present in Sub-Jail, Haldwani on that date. Thereafter, the petitioner approached Police Station Haldwani to lodge the report, but it was not lodged. She approached Senior Superintendent of Police (for short, SSP), Nainital and other high ranking official, but FIR was not lodged.

Petitioner thereafter, moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application of the petitioner to SSP on 22.03.2021 for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry. This communication was made on 05.04.2021.The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) and an order was passed. It is thereafter, FIR No. 261 of 2021, under Section 302 IPC at Police Station Haldwani has been lodged against four named Guards of Sub-Jail, Haldwani. The petitioner seeks transfer of the investigation to CBI.

JUDGEMENT

This Court makes these observations to infer that the apprehension in the mind of the petitioner is not baseless. The petitioner has reason to believe that he may not get a fair investigation at the hands of police. Is it “ties of brotherhood” that the matter was not promptly lodged? Is it “ties of brotherhood” that instead of lodging FIR, SSP Nainital ordered for inquiry by CO Haldwani? Is it “ties of brotherhood” that CO Haldwani concluded after enquiry that the statement of eye witness Rahul Srivastava does not find corroboration? Is it “ties of brotherhood” that CO Haldwani while recording its conclusion, even did not examine the doctor who conducted post mortem and noted the injury?

Having considered the manner in which police proceeded in the case, this Court finds that it is a case in which definitely investigation should be transferred to CBI. The Court would also like to observe that it is a case where accountability of the Senior Police Officer may also be required to be fixed administratively. The written words in the Judgments of the Courts and the provisions of right to life, as enshrined in the Indian Constitution, will remain dead letter, if action against erring police officers is not taken by the administration. Hence, this Court also proposes to make recommendation with regard to SSP Nainital, Circle Officer Haldwani and the Guards who are posted at Sub- Jail Haldwani so as to ensure fair investigation.

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JUDGEMENT REVIEWED BY ANANTH PAI