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Pramod Kumar Dwivedi v/s State of M.P. & Others

    Writ Petition No.6554 of 2015

    Decided On, 06 April 2017

    At, High Court of Madhya Pradesh Bench at Indore


    For the Petitioner: Manish Yadav, Advocate. For the Respondents: R2 to R5, Sunil Jain, AAG with Y. Mittal, Govt. Advocate, R1, Deepak Rawal, ASG.

Judgment Text

P.K. Jaiswal, J.

1. This public interest litigation has been filed by the petitioner, seeking relief of registration of FIR against the police, involved in the incident happened in the police station Vijay Nagar, Indore (ie., quarrel between Police and Army Personnel at parking area of BCM Heights Vijay Nagar Indore) be ensured. In the petition, the petitioner has also prayed that liquor shop be also closed at an early time, but he is pressing a relief for registration of FIR, criminal case against the police personnel involved in the incident happened on the intervening night on 9.9.2015 and 10.9.2015.

2. The facts of the case are as under:-

(i) On 9.9.2015 at about 12.00 to 12.30, midnight some officers of the army visited the Woodstock Lounge, situated at BCM Heights, Indore. While the officers were in the parking area of BCM Heights and were leaving for Mhow, 4-5 police persons arrived and asked the officers to leave immediately, on which the officers informed the police persons that, they were waiting for their colleagues who were clearing their bill and will soon leave. The police persons used abusive language and passed derogatory remarks, resulting in an argument. Within no time a PCR Van arrived at the spot and was joined by Mr. Vipul Shrivastava, IPS and other police officers.

(ii) The army officers identified themselves and informed the police officers about the behaviour of police persons. Rather than taking action against the erring police persons, large number of police persons under the supervision of Mr. Vipul Shrivastava, brutally assaulted the army officers with sticks and weapons. The army officers were mercilessly beaten even when they identified themselves as army officers. Thereafter, the army officers were forcibly dragged to Vijay Nagar police station where they were again beaten up by Mr. Vipul Shrivastava, Police Inspector Mr. Saiyed and Police Inspector Mr. Chhatarpalsingh Solanki. At about 0100 hrs., after inflicting several injuries the army officers were left who somehow reached Mhow with broken limbs, fractures, multiple contusions and injuries caused by blunt objects. The injured army officers were rushed to Military Hospital Mhow where 3 of them had to be admitted in the ICU. The nature of injuries was such that 2 of them had to be referred to the Command Hospital at Lucknow.

(iii) As per medical documents (Annexure R/1) Army No.IC-78793A Lieutenant Shailendra Kumar, sustained the following injuries :-

"(i) Contusion over left leg (8 x 4 cm)

(ii) Bruise on (RT) leg (6 x 5 cm) fracture (Rt) Tibia (upper ⅓rd) " Army No.IC"78612K Lieutenant Ankit Siwach, sustained the following injuries :-

"(i) Swelling over Rt. forearm

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r />(ii) displaced fracture ulna (Rt Hand) lower ⅓". Army No.IC"78363W Lieutenant Kunal, sustained the following injuries :-"(i) Multiple abrasion over (Lt) forearm and (Lt) Knee and Lower Abdomen.(ii) Contusion over back"Army No. IC-79215X Lieutenant Ritwick Singh, sustained the following injuries :-"(i) Contusion over B/L scapular region.(ii) Contusion over (Rt) forearm.(iii) Contusion over B/L thighs & legs.3. As per police patrolling party some army personnel were consuming liquor publicly on road, which was retaliated and started quarrel with the police personnel. Ultimately the police personnel have lodged FIR No.972/15, under Sections 353 and 332, IPC against the unknown persons on 10.9.2015 at 4.15 a.m. In daily diary, the entry was made on 16.10 hrs. vide Entry No.023. It is also alleged that on 10.9.2015, at 5.20 AM in the morning a large number of army personnel have come to attack on police station " Vijay Nagar and they have started beating the police staff of police station Vijay Nagar, Indore. During the said incident, they have taken hard disc of CCTV Camera and they further damaged the computer and furniture of police station. The said attack was committed by 60-70 personnel, who also looted rifle from the guard. An FIR has been lodged for commission of offence on the same day at 5.40 AM in the morning for commission of offence under Sections 147, 148, 149, 395, 397, 352, 307, 427 and 201, IPC vide FIR No.973/15. In daily diary the entry was made at 17.06 hrs vide entry No.028. Thereafter, again some unknown persons have come in large number and attacked another police patrolling vehicle, which was operated under a lady Sub-Inspector, wherein they misbehaved with the said lady Sub-Inspector and assaulted on her and vehicle was also damaged. The said incident was reported by Sub-Inspector to police station Vijay Nagar, Indore, wherein FIR No.974/2015, in respect of Commission of an offence under Section 353, 354 and 332, IPC has been registered vide Annexure R/2. In daily diary the entry was made at (17.22) hrs vide entry No.029.4. On 11.9.2015, a written complaint by the Army Officers was sent by hand to SHO police station Vijay Nagar apprising him about incident and request to register FIR against Shri Vipul Shrivastava and against other police persons vide (Annexure R/2). Para 1 to 4 of the written complaint reads as under :-"(1) This is to inform you that on 9.9.2015, we a group of eight Army Officers, visited Indore at 2330 hrs we came out of Woodstock lounge. We were stopped by police personnel and they started abusing us. We politely informed them that we were Army Officers and we were going back. On hearing this one of the police Officer became abusive to Army as an organisation.(2) We told him firmly not to abuse the Indian Army. The police personnel replied arrogantly and called in all the police personnel around (approx 25-30 in 3-4 PCR vans). Without giving a fair listening to us they started a lathi charge. Four of us were injured, which included two severely injured. One officer suffered fracture on his leg and one suffered a forearm fracture (copy of medical reports attached).(3) After beating us they illegally detained two officers and took them to Vijay Nagar Police Station.(4) You are requested to lodge an FIR against these police personnel, incl city SP Mr. Vipul Shrivastav, who was involved in beating us and also take strict action against them especially against the Officer who ordered the lathi charge on unarmed and civilized Army Officers.(5) For your necessary action."(i) The SHO refused to accept aforementioned intimation and it had to be sent by registered post (Annexure R.3) of written complaint was also submitted to DIG police on 11.9.2015 vide (Annexure P/4). However, no FIR has been registered against the concerned police persons.(ii) On 10.9.2015, a senior officers of the army visited police station Vijay Nagar together first hand information about the incident. On the same day, the Station Commander Mhow, along with other senior army officers, held a meeting with civil administration including the DIG police, Collector etc at the DIR Office, Indore. The army authorities on the same day, ie., on 10.9.2015 itself ordered a court of enquiry under the provisions of Army Act, 1950, to ensure a fair trial and dispensation of justice in a time bound manner. In order to investigate the matter and conclude the court of inquiry repeated intimations / summons were issued to Mr. Vipul Shrivastava, Mr. G.D. Vaishnav, Sub-Inspector Vijay Nagar, Police Station and Mr. Solanki, Sub-Inspector Vijay Nagar, Police Station, on 7.10.2015, 14.10.2015, 21.10.2015 and 12.11.2015. When the police persons did not cooperate in the court of inquiry an application under the provisions of Army Act and Army Rules was made to the Chief Judicial Magistrate, Indore, on 14.10.2015 with a prayer to direct the witnesses to report to the Presiding Officer, court of inquiry on 20.10.2015. Thereafter, another application was made to the Chief Judicial Magistrate, Indore on 12.11.2015 for attendance of police witnesses before the presiding officer, court of inquiry, despite of which none of the police persons ever appeared before the court of inquiry.5. Learned counsel for the petitioner submits that despite of repeated intimation and report no case has been registered against the erring police persons, but a case was promptly registered against army officers at Crime No.972/2015, 973/2015 and 974/2015 by police station Vijay Nagar, Indore. An application under Section 475 of Cr.P.C., read with Section 125 of the Army Act and Rule 5 of the Criminal court and Court Marshal Adjustment of jurisdiction Rule, 1978 has been filed on behalf of the Army before the JMFC, Indore praying for transfer of the said case to the Army court. The SHO police station Vijay Nagar issued notice with respect to the case registered against the army officers requiring their statements. Vide letter dated 6.11.2015, the police authorities were requested to record the statements of the concerned army officers at Mhow since they were committed in the court of inquiry and were also undergoing the mandatory young officers course. In respect of the incident, which had taken place in the parking area of BCM Heights, Indore, and young Army Officers were mercilessly beaten, but no FIR was lodged by the police personnel. Whereas police personnel registered prompt FIR 971/15, against the unknown persons under Sections 353 and 332, IPC. As per FIR the army personnel started quarrelling with the police personnel. It was found by the police persons that 10-12 persons were having intoxicated effect of liquor and in such intoxicated they abused and quarrelling with on duty police persons.6. As per reply of the police personnel, a large number of army personnel have come to attack on the police station Vijay Nagar and started beating to police staff of police station Vijay Nagar, Indore. During the said incident, they have taken hard disk of CCTV Camera with a view to conceal their identity and they further damaged the computer and furniture of police station. The said attack was committed by 60-70 army personnel who have also looted one rifle from the guard, therefore, in such manner, again an FIR 972/15, has been lodged for commission of offence under Sections 147, 148, 149, 395, 397, 352, 307, 427 and 201, IPC. The stand of the police personnel that due to the said incident of 'Maarpeet' (assault) with the staff of police station Vijay Nagar, Indore, the entire police personnel had been taken to hospital where their MLC were performed and in furtherance of investigation the statement of staff deployed at police station Vijay Nagar, at the time of incident were also recorded.7. It is submitted by the learned counsel for the petitioner that army officers were victims and brutally assault by the police personnel, but till today no FIR has been registered. He has also drawn our attention to the medical reports of four army officers and submits that as per the injuries inflicted upon the army officers and two of them sustained fracture, but till today no FIR has been registered by the police personnel whereas against the army officer they have registered three FIR's. He submitted that as per injuries inflicted upon the army officers is of loss to the nation that since these officers are from the fighting arm of the Indian Army who lead the troop in battle and counter insurgency / counter terrorist operations and protect the borders of the country. After a tough selection process only a few out of lacs of participants are selected, who undergo rigorous training and are then commissioned as officers. The fractures and injuries inflicted upon these officers might adversely affect their efficiency. The above incident could have been avoided by the police by simply informing and coordinating with the army authorities at Mhow, in time. There was no need to treat the army officers as hardened criminals.8. The stand of the respondent No.1 " Union of India that, the high handed manner in which the police officers had been dealing with the matter is evident from the fact that despite having medical evidence and written complaint, no FIR has been registered against the erring police officers till date. The inaction on part of police authorities to register FIR is also in contravention to the directions given by the Hon'ble Supreme court in the matter ofLalita Kumari v. Government of U.P. reported as [2013(5) MPHT 336].9. In respect of action of the army officer for the alleged misconduct concerned, a court of enquiry is ordered without any delay. However, in defiance of mandate of law the police officers have refused to appear before the court of inquiry. In case, the involvement of any Army Officer is found in the alleged incident then appropriate action as per law.10. Shri D. Rawal, learned ASG submits that minimum action has been taken by the army authorities by instituting a court of enquiry as per the Army Act. At the earliest available opportunity coordination was carried out with the civil authorities to prevent any untoward incident. The army authorities have taken appropriate steps without any delay by initiating the court of inquiry, summoning the witnesses, coordinating with civil authorities and lodging complaint with the police. On the contrary the police authorities have not cooperated in investigating and have not registered any case against the erring police officers. He has also drawn our attention to the order passed inM.Cr.C.No.10037/2016 and M.Cr.C.No.10039/2016 (Station Commander, Mhow Cantt. v. State of M.P. & Others) decided on 5.10.2016.In the aforesaid matter, the learned Single Bench directed the respondents/State to transfer the complete record of the proceedings in respect of Crime Nos.973/2015, 972/2015 and 974/2015, registered at police station Vijay Nagar, Indore to petitioner therein under the relevant provisions of Army Act, 1950 read with Army Rules, 1954 :-"During post-lunch session when the matter was listed in the supplementary cause list before this court, Mr. Sunil Jain, learned AAG appeared in the matter and prayed for grant of some time to the respondent " State Government to file reply and submitted he does not have any instructions in the matter as he is appearing on advance notice.This court is of the considered opinion that once this court has heard two identical matter and the order was pronounced in the open court, in respect of the third matter, the prayer for grant of time deserved to be rejected and is accordingly rejected. The judgment delivered in two identical matters shall be applicable mutatis mutandis in the present case also and the respondents are directed to transfer the case ie., Crime No.974/2015, registered at police station Vijay Nagar, Indore to the Competent Military Authority under the relevant provisions of the Army Act, 1950 read with the Army Rules, 1954. With the aforesaid, the present petition stands allowed and disposed of."11. Shri Sunil Jain, learned AAG has submitted that against the aforesaid order dated 5.10.2016, Petition for Special Leave to Appeal vide No.1384/17 and 1386/17 have been preferred by the State and the Hon'ble Supreme court issued a show cause notice. Shri Jain, learned AAG has also submitted that a written complaint lodged by the army personnel regarding the incident by which number of young officers have been beaten, the matter was investigated by the police and no case was made out against the police personnel to register FIR against them. A report of Addl. Superintendent of Police (East) Zone " 1, Distt. Indore, dated 30.9.2015 (Annexure R/6) is relevant, which reads as under :-“LANGUAGE”Email-aspeastindore@gmail.com“LANGUAGE”12. The medical documents filed by the respondent No.1 along with the reply are the clear evidence of police brutality against the young trainee officers on the intervening night of 9.9.2015 to 10.9.2015 at Indore. If the allegation that, the trainee army officers had consumed liquor, then as per procedure, police should have carried out medical test to gather. The supporting evidence, which in fact was never done. The MLC submitted along with the trainee officer's complaint was substantial prima " facie evidence for filing of an FIR at police station " Vijaynagar, Indore, at the first instance, which was not done deliberately to protect their own officers. In fact, police officers from police station " Vijay Nagar, themselves were involved in the incident, so they have managed to evade registering of FIR against their own personnel.13. A serious allegation has been made by the respondent No.1 that some police personnel including City Superintendent of Police Mr. Vipin Shrivastava, blatantly misused the authority vested with the police and physically assaulted the army trainee officer from Infantry school, Mhow, causing grievous injuries to them. The medical reports, which have been produced herein in the preceding paragraphs are the testimony of police's unprovoked violence, brutality and severe injuries suffered by the trainee army officers in the said incident. No law of the land permits police to resort to such acts resulting into breaking the limbs of the army personnel, who are known for their high discipline and supreme sacrifice for the defence of the Nation. Moreover, despite clinching medical evidence attached with aggrieved officer's complaint, police action of not filing mandatory FIR against its own erring personnel for commission of an undisputed cognisable offence is entirely arbitrary and unlawful. It amount to travesty of the truth and justice to suit their vested interest.14. The police under the relevant laws of section 154 Cr.P.C., is duty bound to register army complaint's FIR disclosing a prima facie cognisable offence. Refusal to register an FIR for commission of a cognisable offence is also contrary to the law laiddown by the Apex court in the case ofLalita Kumari v. Government of U.P.(supra) therefore, police has not only flouted and defied the mandate of law as envisage under section 154 of Cr.P.C, but also virtually violated the directions given by the Apex court. A counter allegation has been made by the Union of India that, it is the police who is shielding its own erring personnel responsible for the incident, which is evident from the police report dated 30.9.2016, giving clean cheat to its erring personnel thereby not filing required FIR at police station Vijay Nagar, Indore. The police has dragged its investigation for more than a year with seemingly vested interests.15. In respect of non-cooperation, the stand of police officers are that they are ready to cooperate 'in house enquiry' subject to provide security because after the incident at midnight of 9th and 10th September, 2015, the police officers are scared because if they will go in 'inhouse enquiry', inquiry in the military guidelines then, there are chances army person will take law in hand and the position will be worse. Even, there is no enquiry conducted in accordance with law and enquiry is going on before the criminal court, which will decide the fate of the case. In respect of in-house enquiry and transfer of three FIR's by order dated 5.10.2016, now the matter is pending before Hon'ble the Supreme court and, therefore, all those questions cannot be considered in the present public interest litigation.16. Now the only question, which is to be decided in this public interest litigation is that the matter to be ordered to be investigated by any other independent agency like Central Bureau of Investigation (for short 'CBI').17. The Apex court in the case ofCentral Bureau of Investigation & Anr. v. Rajesh Gandhi & Anr. reported as 1996 (11) SCC 253has held that no one can insist that offence be investigated by a particular agency. The aggrieved person can only claim that offence he alleges be investigated properly, but he has no right to claim it be investigated by a particular agency of his choice.18. The stand of the respondents No.2 to 5 that if a person is aggrieved that a police station is not registering his FIR under Section 154 Cr.P.C, then, he can approach the Superintendent of Police under Section 154 (3) Cr.P.C, by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) of Cr.P.C., before the learned Magistrate concerned. If such an application under Section 156(3) Cr.P.C is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct an appropriate investigation to be made in a case where, according to the aggrieved person no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.19. In the present case, on a written complaint lodged by army officer, there was an investigation by the Addl. Superintendent of Police, East Zone " I, Distt. Indore and as per his report dated 30.9.2015, in spite of the fact that some of the army officers sustained fractures but the Addl. S.P., without considering their medical papers, on the basis of statement of police and independent witnesses namely Ankur Sharma and Vikas Chouhan, came to the conclusion that, no case for registering the FIR is made out. As per reply of the respondents No.2 to 5, the Addl. S.P. was justified in rejecting the prayer for registering an FIR.20. InSecy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya, reported as 2002 (5) SCC 521,the Apex Court observed that although the High court has power to order a CBI enquiry that power should only be exercised if the High court, after considering the material on record comes to the conclusion that such material discloses prima facie case calling for investigation by a CBI or by any other similar agency. A CBI enquiry cannot be ordered as matter of routine merely because the party makes some allegation.21. In the present case, we are of the opinion that, the material on record discloses a prima facie case calling for an investigation by any independent agency because police personnel are involved and, therefore, in spite of clinching medical evidence, no FIR has been registered. On the contrary, they rejected the prayer for registering of an FIR on 30.9.2015.22. Shri Jain, learned AAG relied on the decisions of the Apex court in the case ofSakiri Vasu v. State of Uttar Pradesh & Others , reported 2008 (2) SCC 409&Sudhir Bhaskar Rao Tambe v. Hemant Yashwant Dhage & Others, reported as 2016 6 SCC 277and contended that a person has a grievance that his FIR has not been registered by police or proper investigation has not been done, then the remedy of the aggrieved person is not to go to this court under Article 226 of the Constitution, but to approach the Magistrate concerned under Section 156 (3) Cr.P.C and prayed for dismissal of the writ petition.23. Recently, Hon'ble the Supreme Court in the case ofPuja Pal v. Union of India & Others, reported as 2016 (3) SCC 135has held that the extraordinary power of the Constitutional courts under Article 226 of the Constitution of India qua the issuance of direction to the CBI to conduct investigation must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. The Apex court held that the power of Constitutional courts to direct further investigation or re-investigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self imposed restraint, the plentitude and content thereof can neither be enervated nor moderated by any legislation.24. The allegation regarding army officers to consume liquor openly has been denied by the respondent No.1. Nor there is any medical report to this effect. The consumption of liquor at a public place like a parking area is beyond imagination because in spite of the facilities available to the army officers, they will drive away from Mhow to Indore to consume liquor that to in a parking lawn. It appears that, in order to satisfy their ego, the police personnel had mercilessly beaten up the young officers and a story was cooked up regarding consumption of liquor.25. The role of the police is to be one for protection of life, liberty and property of citizens, with investigation of offences being one of its foremost duties. The aim of the investigation is ultimately to search for truth and to bring offender to book. "Criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it". It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry.26. From the aforesaid facts and circumstances of the case, we are of the view that the statutory agency has not functioned in an effective way or that the circumstances are such that, it may reasonably be presumed or inferred that it may not able to conduct the investigation fairly or impartially. The army personnel have made specific allegation against the police authority. The report dated 30.9.2015, clearly shows that they have not investigated the matter properly in spite of clinching medical evidence, no FIR has been registered. The prime concerned and the endeavour of the court of law is to secure justice on the basis of true facts, which ought to have been unearthed through a committed resolved and a competent investigating agency.27. From the return and the record of the respondents No.2 to 5, which has been produced though the young officers were beaten by the police personnel and their medical reports are on record, the police did not investigate the case properly at all and letter dated 30.9.2015, has been issued, stating therein that, no case is made out against the police personnel.28. We are also not impressed by the submission of the learned Additional Advocate General that, if the respondent No.1 is dissatisfied, they may file a private complaint. On the other hand, police personnel acted promptly in registering three FIR's against army personnel.29. We accordingly, direct the Director, CBI, to take over the investigation of the case of the incident of non-registration of FIR against police personnel. In respect of written complaint lodged by the respondent No.1 against the police personnel and bring the investigation to its logical conclusion in accordance with law. The record of the case, which has been submitted by the State Government will be kept in a sealed cover in the custody of Principal Registrar of this court and shall be handed over after completing the necessary formalities to the officers / authorities to receive them by the Director CBI. We also direct the State Government and its police to cooperate fully with the CBI in the investigation.30. In the result, the petition succeeds and is hereby allowed, but without any order as to costs.

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