Tarlok Singh Chauhan, J.@mdashThese appeals raise common question of law and facts and therefore the same are taken up together for disposal.
2. The facts as are necessary for determination of these appeals may be noticed. The petitioner No. 2 was working as guide with Vatika Hotel. The petitioner No. 1 Sakshi is the wife of petitioner No. 2 Rajesh while the petitioner No. 3 is their son. On 8.5.2008 a complaint was received from the petitioner No. 1 inter alia alleging therein that on 22.1.2008 when she was at Chintpurni, she had received some message on her mobile phone No. 94186-00368 that her husband, petitioner No. 2, who was working in Vatika Hotel, was lying unconscious at Police Station, Sadar, Shimla. These messages were received by her from phone No. 2801817 which is installed in the Vatika Hotel. The petitioner No. 1 reached Shimla on 23.1.2008 in the evening and met the owner of Vatika Hotel, who took her to Police Station, Sadar, Shimla where she found petitioner No. 2 in an unconscious condition. The respondent No. 4, who was then posted as SHO, Police Station, Sadar, Shimla alongwith owner of Vatika Hotel drafted an application and got her signatures over the same and handed over the petitioner No. 2 to petitioner No. 1. The petitioner No. 1 took petitioner No. 2 to hospital for quick treatment as there was no time to consult the lawyer and police officials. The police arranged the ambulance and four police personnel carried the petitioner No. 2, who was stated to be unconscious, put him in the ambulance from where he was taken to IGMC and on reference of one Dr. Rahi he was taken to PGI, Chandigarh.
3. On receipt of such complaint, case FIR No. 115 of 2008 dated 8.5.2008 was registered at Police Station, Sadar, Shimla under Sections 307, 326, 201 IPC. The case was initially investigated by Sh. Madan Lal, Deputy Superintendent of Police, Shimla and subsequently by Sh. Mohinder Singh, Addl. Superintendent of Police, Shimla. However, it appears that the petitioner No. 1 was not satisfied with the investigation and, therefore, the investigation was transferred to State CID in September, 2008. The petitioner No. 1 claims that petitioner No. 2 had sustained injuries during day time on 22.1.2008 when he was working at Vatika Hotel because on 22.1.2008 at 12.38 p.m. she had received a phone call that her husband had been creating problems and at about 12.45 p.m. she had received another call informing her that her husband was under the influence of liquor. It is alleged that thereafter the matter was compromised. As per the forensic report prepared at 7.45 p.m. on 22.1.2008, petitioner No. 2 was not found under the influence of liquor. During quarrel at about 12.30 p.m. the petitioner No. 2 is stated to have sustained injuries and five additional injuries had been caused on the night of 22.1.2008 when the petitioner No. 2 is stated to have been kept at the Police Station, Sadar. On such allegations, the petitioners have claimed the following reliefs:
(i) That the respondents may kindly be directed to provide compensation of Rs. 50 lakhs to Sakshi for violation of her Fundamental Right to live with liberty and move freely. For example:-
a) As mentioned above, for the last about two years or so Sakshi has been passing through toughest of the tough time. She cannot leave Rajesh even for a period of five minutes or so.
b) In the month of March, 2009 Sakshi''s mother expired and she could not go even to see the face of her mother.
c) Her son has turned of the age of about six years and she could not send him to School because she cannot go to her in laws even to bring the birth certificate of her small son.
d) Three lives have been destroyed. Her husband has become permanently a blind and disabled man. She has no money to feed her small kid and blind husband.
e) Himachal Govt./Police has not bothered to save these three lives. They will, perhaps, awaken only when all or any of these hapless persons die/dies.
Hence a prayer for directions to the Respondents for the payment of a compensation of Rs. 50 lakhs to the highly aggrieved Sakshi for violation of her Fundamental Right to live with liberty and move freely with no source of income to feed her blind husband and small kid.
ii) It is also prayed that a proper enquiry may kindly be got made for the lapses on the part of Himachal Police either by the Chandigarh Unit of CBI or by the Police of neighbouring State where the accused persons will not be able to make misuse of any undue political, official or financial influence. This request is also made due to the fact that it will not be possible for a physically weak, helpless and penniless Sakshi to carry blind and disabled Rajesh through the Hills of Shimla for producing him before the Courts along with a small kid. Still more Sakshi is getting threats to kill her small son and also the threats of encounters and implication of her relatives in false cases.
iii) The Police may be directed to record the statement of Rajesh when he becomes 100% fit to give his statement.
iv) Fair and honest investigation either by the Chandigarh unit of CBI or by the Police of any neighbouring State shall be in the following larger interest of the public:-
a) The undue favour shown to the accused persons by Himachal Police will be brought out which, as per the aforesaid Ruling of the Hon''ble Supreme Court, will certainly put a check on the menace of fence eating the crop.
b) The self-contradictory and brainless observations of the illegally constituted Medical Board will also be brought out. This will put strict check on delinquent Doctors. Otherwise tomorrow this type of doctors will declare alive persons as dead which will be very serious and hazardous for the general public at large.
c) Sakshi has not committed any offence for which she is being punished so harshly. She has practically been made a beggar. Her Fundamental Right to live with liberty and move freely has been violated. The lives of Sakshi, her blind husband and small kid have been spoiled. How will she feed herself, her blind husband and small kid throughout her entire life is a very serious problem. Justice given to Sakshi will ensure that this type of cruel, tough and harsh treatment is not meted out to any other helpless and innocent woman in future.
d) It is very risky to go to Shimla because the owner of Vatika Hotel, Police Officials of Shimla and Doctors of the Govt. Hospitals can create any type of problem for the helpless petitioners.
v) Suitable legal action u/s. 218 and 120(B) may kindly be recommended against the concerned Police Officials, Doctors and owner of Vatika Hotel for entering into a conspiracy to save the accused persons.
4. Pursuant to the registration of FIR, report u/s 173 Cr.P.C. was presented in the competent Court of law wherein the then SHO, ASI and two other employees of the police department (hereinafter referred to as ''police officials'') were arraigned as accused.
5. This writ petition was decided by the learned Single Judge vide judgment dated 18.6.2012 with the following directions:
(i) Respondent No. 1 is directed to pay a sum of Rs. 15,60,000/- as compensation to the petitioners within a period of one month from today. This amount shall be deposited in the Registry of this Court and thereafter the amount shall be put up in a fixed deposit and petitioner will be entitled to receive interest accruing on the same on monthly basis.
(ii) It shall be open to the respondent No. 1 to recover this amount from the erring officials i.e. respondent No. 3 Shiv Kumar, SI Kanwar Singh, ASI Rattan Singh and HC Mahender Singh.
(iii) Respondent No. 1 is directed to initiate disciplinary proceedings against respondent No. 3 within a period of two weeks from today and conclude the same within a period of 12 weeks.
(iv) The Additional Director General of Police, CID is directed to take action against SI Kanwar Singh under Rule 8 and 9 of CCS (Pension) Rules within a period of eight weeks from today and submit the report to the disciplinary authority.
(v) The Superintendent of Police, Mandi is directed to initiate disciplinary proceedings against ASI Rattan Singh and complete the same within a period of 12 weeks and submit the report to the disciplinary authority immediately thereafter.
(vi) The Commandant 5th Indian Reserve Battalion is also directed to initiate disciplinary proceedings against HC Mahender Singh and to complete the same within a period of 12 weeks and submit the report to the disciplinary authority immediately.
(vii) The disciplinary authority in the case of respondent No. 3 SI Kanwar Singh, ASI Rattan Singh and HC Mahender Singh shall take immediate action after receipt of inquiry reports.
(viii) Since the matter is of a very sensitive and grave in nature, respondent No. 3 namely Shiv Kumar Chaudhary, ASI Rattan Singh and HC Mahender Singh shall be put under suspension forthwith and remain under suspension during the trial and also till the disciplinary proceedings are completed against them.
(ix) The trial Court is directed to complete the trial within a period of three months from today by holding day today proceedings.
(x) Respondent No. 1 is also directed to issue directions to all the Police Stations in the State of Himachal Pradesh that no police personnel shall indulge in custodial violence and no third degree method shall be used by the police personnel against any person in the police custody in order to ensure due compliance of Article 21 of the Constitution of India. No physical or mental torture will be caused to the persons brought to the Police Station by giving them beatings kicks, fist blows, by using dandas and any other method of subjugation. The police personnel should not use filthy and foul language in the Police Station and, if used, it will amount to physical and mental torture.
(xi) The Superintendent of Police/Deputy Superintendents of Police are directed to carryout the periodical inspections in the Police Stations to ensure that no person is detained in the police stations without authority of law and also to ensure that if any citizen/person is arrested without warrant, he be produced before the Illaqua Magistrate without 24 hours.
(xii) In order to ensure due compliance of directions No. (x) and (xi) the following committee of Judicial Officers/Sub Divisional Officers is constituted:
(i) The Chief Judicial Magistrates of all the Divisions;
and
(ii) The Sub Divisional Magistrates of all the Divisions.
The committee shall visit all the Police Stations weekly and report whether any person has been detained without authority of law. The committee shall also ensure that whether a person brought to the Police Station without warrant has been produced before the Illaqua Magistrate without 24 hours or not. The committee shall furnish reports to the Sessions Judges. The Sessions Judges are permitted to make recommendations for taking suitable disciplinary action against the persons who violated the constitutional and legal mandate. The recommendations made by the Sessions Judges would be binding on all the disciplinary authorities.
(xiii) The respondent No. 1 is suggested to separate investigation from Law and Order Wing to make the investigation scientific by remodelling the police to increase the efficiency in the police force. The investigating agency should be properly trained and they should be taught how to uphold the Constitutional and basic human rights.
(xiv) Respondent State is directed to keep holding refresher courses to apprise the new developments and techniques in investigation.
(xv) Respondent No. 1 is also directed to issue directions to the Superintendents of Police throughout the State of Himachal Pradesh that no matter of civil nature is compromised in the Police Stations, as it amount to intimidation.
(xvi) Respondent No. 1 is further directed that no police officer/official is put on duty at a stretch beyond eight hours.
(xvii) Respondent State is directed to constitute the following committee to improve the conditions of service of the police personnel.
(a) Principal Secretary/Secretary (GAD) Government of Himachal Pradesh.
(b) The Secretary(Finance), Government of Himachal Pradesh.
The Committee shall undertake the exercise the manner in which the conditions of service of police personnel can be improved by providing time bound promotions, incentives to those police personnel who improve their educational qualification, their duty hours, housing problems and over time allowance etc. The Committee shall make its recommendations within a period of three months from today to the State Government. Thereafter, the State Government shall take necessary action within a further period of three months. It shall be open to the committee to make other recommendations concerning welfare of police personnel.
(xviii) Respondent No. 1 and 2 are directed to file compliance reports separately within a period of three weeks. They are also directed to file status report(s) with regard to direction No. (viii) without 24 hours.
6. Now the State and the other respondents have filed these appeals before us. At the outset it may be observed that the position of law as quoted and relied upon by the learned Single Judge has not been disputed by any of the parties to the lis.
7. Two fold submissions have been made before us. One submission is common to all the appellants wherein challenge has been laid to the directions No. (i) to (ix) passed by the learned Single Judge and the other submission has been made only on behalf of the State challenging directions No. (x) to (xviii). We now proceed to determine the first submission.
8. The learned Advocate General alongwith the learned counsel for the other appellants have strenuously argued that in the teeth of the directions issued by the learned Single Judge, particularly directions No. (i) to (ix) supra, there is hardly any option left with either the disciplinary authority or even the Court but to punish/convict the police officials as firm findings regarding guilt of these police officials have been recorded leaving no room for the police officials to urge to the contrary before the Courts or the disciplinary authorities. They have specially invited our attention to the following observations of the learned Single Judge made in the impugned judgment in paras 18, 19, 21, 23, 24, 27, 28, 29, 30, 38, 40, 41 and 82 as under:
"18. Now, the Court will examine in detail the theory of "fall", propounded by the Investigating Officer and substantiated by the Medical Board, constituted at the behest of Investigating Officer on 07.07.2008. The case projected by the respondents, is that petitioner No. 2 earlier fell near A.G. Office on 21.01.2008. There is no medical report placed on record dated 21.01.2008, disclosing any injuries on the person of petitioner No. 2. The second theory of fall tried to be proved by the respondents, is that petitioner No. 2 was found injured in the stairs of Middle Bazaar near Guptajees restaurant and he was brought to the Police Station by Constable Man Dass. He was medically examined at 7:45 p.m. The blood of petitioner No. 2 was taken to see the contents of alcohol or poison in his blood. In the report of F.S.L., neither there was any poison nor alcoholic contents in the blood of petitioner No. 2 as per the report. The final opinion was given by Dr. Payal Gupta after receiving the report from the F.S.L. This is a concocted story that the petitioner No. 2 received injuries when he fell on the stairs in Middle Bazaar. The second theory of fall has also been projected to help the accused. Petitioner No. 2 was medically examined by Dr. Rahi on 23.1.2008 at 7:15 p.m. It has again come in the M.L.C. issued by Dr. Rahi that there was no smell of alcohol. It further belies the story of frequent falls of petitioner No. 2.
19. The fact of the matter is that petitioner No. 2 has been detained in the Police Station, Sadar Shimla from 22.01.2008 to evening of 23.01.2008 and he has received injuries due to the beatings given to him while he was unconstitutionally and illegally detained in the Police Station. The theory of fall has been further tried to be fortified by taking a tailor made opinion from the Medical Board by referring whether all the injuries could be caused due to accidental fall exclusively. This letter has been written by the Additional Superintendent of Police (City), Shimla to the Professor and Head, Department of Forensic Medicine, I.G.M.C., Shimla to help the accused and to establish that the injuries were received by petitioner No. 2 by way of a fall. It is reiterated that there was no conflict in the medical opinions rendered by two qualified doctors, i.e., Dr. Payal Gupta and Dr. Rahi. The Court deprecates the attempt made on behalf of the Officer, that too, of the rank of Additional Superintendent of Police (City), Shimla, to dilute the accusations against the persons, who were responsible for detaining the person in the Police Station unconstitutionally and illegally.
21. There is no merit in the contention of Mr. Naresh Thakur, learned Senior Advocate that his client has tried to help the petitioner No. 2 on humanitarian ground by arranging ambulance etc. His client was Station House Officer and he, instead of protecting the liberty of petitioner No. 2, has compromised the same by detaining him in illegal custody at Police Station and given beatings to him. There is also no merit in the contention of Mr. Naresh Thakur, learned Senior Advocate that the police was not involved in the episode. The police was informed and ASI Tej Ram has visited Vatika Hotel on 22.01.2008 and thereafter the matter was also compromised at Police Control Room. Even as per the reply filed by respondent No. 4, it is apparent that the petitioner No. 2 was taken to Police Station where he was detained unconstitutionally and illegally and was given beatings as is duly established from the M.L.Cs. conducted on 22.01.2008 and 23.01.2008. This factum is also substantiated by the affidavits placed on record vide Annexures P-11 to P-13. The complicity of respondent No. 4, in these circumstances, can also not be overruled in the entire episode. His role ought to have been probed by the Investigating Officer.
23. It has come in the affidavits Annexures P-11 and P-13 that the police personnel and respondent No. 3 have given beatings to Rajesh Kumar. It further strengthens the case that the petitioner No. 2 was given beatings by the police personnel, including respondent No. 3. The respondents have not rebutted the contents of the affidavits. There is no reason why these persons, namely, Hari Dass, Chet Ram, Sita Ram, Kishan Bahadur would give false affidavits, that too, against the S.H.O. and other police personnel. It has also been deposed in affidavits that petitioner No. 2 was thrown in a drain. Petitioner No. 2 has spent the entire night in the drain, that too, in the month of January.
24. The duty of the police officials is to protect the life and limb of the citizen and not to put the same at peril by themselves by detaining the persons unconstitutionally and illegally and by beating a person to such an extent that he becomes 100% physically handicapped. On 20.04.2011, the Director General of Police was directed to file a fresh reply. He filed an affidavit, which is at page No. 271 of the paper-book. According to the affidavit, the investigation was complete and police report u/s 173, Cr. P.C. was filed in the Court, under Sections 341, 342, 323, 325, 218 and 120B of the Indian Penal Code against the accused Shiv Chaudhary, Deputy Superintendent of Police (the then SHO), S.I. Kanwar Singh, ASI Rattan Singh and Constable Mahendar Singh.
27. The petitioner No. 2 has been deprived of his liberty enshrined under Article 21 of the Constitution of India. He is permanently disabled and can not make both ends meet. His wife and son are dependent on him and in these circumstances; it is the responsibility of the State to compensate the petitioners. Petitioner No. 2 was hale and hearty before this incident and was earning his livelihood as a Guide.
28. It is apparent from the facts that the petitioner No. 2 was taken to Police Station, Sadar Shimla in the afternoon on 22.01.2008. He was released from the Police Station, Sadar only when the petitioner No. 1 visited the Police Station in the evening on 23.01.2008. Petitioner No. 2 was examined by the doctor. It was the duty cast upon respondent No. 3 that the petitioner No. 2 is produced before the Magistrate within 24 hours. There is no explanation why the petitioner No. 2 was not produced by the police before the Magistrate as per the mandates of Article 22(2) of the Constitution of India.
29. According to Section 57 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Act'' for the sake of brevity) no police officer shall detain in custody a person arrested without warrant for a period longer than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate u/s 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court. In the instant case, petitioner No. 2 was required to be produced before the Illaqua Magistrate within a period of 24 hours, which the respondent No. 3 has failed to do.
30. According to Section 54 of the Act, when any person is arrested, he is to be examined by a Medical Officer in service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made and where the arrested person is a female, the examination of body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. Under sub section (2) of Section 54 of the Act, it is the duty cast upon the medical officer or a registered medical practitioner examining the arrested person to prepare the record of examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. A copy of the report of such examination is to be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person. In the instant case, the petitioner No. 2 has not been examined immediately after his arrest.
38. It has also come in the record that an attempt was made to get the statement of Rajesh Sharma, petitioner No. 2 recorded u/s 164 of the Cr.P.C., however, due to deterioration of health, it could not be recorded.
40. It is now duly established that petitioner No. 2 was detained by the police at Police Station, Sadar Shimla and was given beatings during his illegal custody, which led to his 100% disablement. In these circumstances, the petitioners are to be compensated by reasonable compensation.
41. The Investigating Officer has tried to shield the delinquent officials by propounding two stories, which were contrary to the facts. He has tried to portray that injury No. 3 was present at the time when first M.L.C. was undertaken on 22.01.2008. This attempt has been made by the Investigating Officer to favour the delinquent officials. The second point formulated by the Investigating Officer that the injury has resulted due to fall, was also an attempt to shield the accused person. The theory of fall is contrary to the facts.
82. According to the disability certificate placed on record, issued by the Postgraduate Institute of Medical Education and Research, Chandigarh, the petitioner No. 2 has suffered head injury with severe left upper & lower limb weakness with very severe urinary incontinence with speech problem with inability to see. He was physically handicapped and has suffered 100% impairment in relation to his whole body. There is no direct evidence of the age of petitioner No. 2. However, at the time of filing of the petition, the age of petitioner No. 1 was 39 years in 2009. Thus, it can safely be presumed that the age of the petitioner No. 2 at the relevant time was 41/42 years. He was working as a Guide in Vatika Hotel. But, now he cannot work as a Guide, since he cannot see and he has speech problem. There is weakness in lower limb with very severe urinary incontinence. The petitioner No. 2, with this disability, cannot have any alternative employment. The Postgraduate Institute of Medical Education and Research, Chandigarh has given in the certificate 100% impairment in relation to his whole body. The Second Schedule u/s 163A of the Motor Vehicles Act, 1988 gives a structured formula for the calculation of compensation in accident cases. Note 5 of the Schedule deals with disability in non- fatal accidents and reads as follows:
"5. Disability in non-fatal accidents :
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
PLUS either of the following-
(a) In case of permanent total disablement the amount payable shall be a arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above.
Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen''s Compensation Act, 1923."
In the instant case, the petitioner No. 2 has not earned anything between the date of his admission in the hospital and his treatment in the hospital. As per the certificate issued by the Postgraduate Institute of Medical Education and Research, Chandigarh, the petitioner No. 2 has suffered permanent disablement. He cannot see and he has problem with speech, coupled with lower limb weakness. Petitioner No. 2 was working as a Guide with Vatika Hotel and it can safely be presumed that he was earning about Rs. 7,000/- per month. In his case, since he has suffered permanent disablement, the loss of future earning per annum would be Rs. 84,000/-. Since the petitioner No. 2 was about 41 years of age, the multiplier of 11 would be appropriate. Thus, by multiplying Rs. 84,000/- by 11, the total amount comes to Rs. 9,24000/-. Petitioner No. 2 is also entitled to future medical expenses. Though no document has been placed on record in this regard, but the Court can take judicial notice that since petitioner No. 2 has suffered serious injuries and is under treatment, he would at least require about Rs. 2 lacs for future medical expenses. Petitioners and petitioner No. 2, more particularly, have suffered pain, sufferings and trauma as a consequence of the injuries and they are entitled to Rs. 2 lacs under this head. Petitioners, over and above, the pecuniary damages and non-pecuniary damages, as assessed hereinabove, are entitled to be awarded a sum of Rs. 236,000/- as exemplary compensation by the respondent No. 1 for violating their fundamental and legal rights."
9. On the other hand, the learned counsel for the writ petitioners, who are respondents in these appeals, has supported the directions issued by the learned Single Judge and would argue that taking into consideration that this was a case of custodial excesses committed by the appellants for which the State was vicariously liable, the directions issued by the learned Single Judge in the given facts and circumstances of the case were not only proper but had been issued strictly in accordance with law.
10. We have considered the rival contentions and are of the considered view that since the matter was pending investigation/disciplinary proceedings, it was not proper or appropriate at this stage for the learned Single Judge to have recorded firm findings regarding the guilt of the police officials leaving no room for these police officials to urge the contrary. The effect of the judgment if allowed to stand would be to pre-empt the entire decision leaving nothing for the disciplinary authority or competent criminal court to decide. The findings recorded by the learned Single Judge have therefore definitely prejudiced the case of the police officials. Further, in case the findings so recorded are allowed to stand, it would be an onslaught and encroachment and would also amount to taking over the reigns of the disciplinary authorities and/or the criminal courts.
11. It has to be remembered that while exercising the powers of a Constitutional Court a firm finding of fact in such like case can be returned only in exceptional cases. The observations made by the learned Single Judge may though be founded upon the material on record, nonetheless they remain only tentative for want of conclusive proof and at best can be termed to be prima facie views only. No doubt, in the case in hand, the allegations are serious, even the circumstances somewhat seem to support them, even the consequences are quite apparent, yet the material on record is not within the degree of conclusive proof on the basis of which firm findings of fact could have been returned. These at best may have given rise to a strong suspicion, but yet could not have been held to be conclusive. The truth must surface in the interest of those who are accusing and/or are being accused, therefore, to reach a definite conclusion, the investigation and disciplinary proceedings are inevitable whereafter alone the guilt, if any, of the police officials can be established.
12. This Court otherwise cannot be oblivious to the fact that in teeth of such firm findings as recorded by the learned Single Judge, no subordinate court or even the disciplinary authority would dare to go beyond these findings. More so when the order passed by the learned Single Judge does not even state that the findings as recorded are only tentative or prima-facie. Obviously, therefore, the findings so recorded in our considered view amounts to pre-judging the issues because the matter is pending investigation/disciplinary proceedings and it is possible that on its conclusion the Court/disciplinary authority may have sufficient material with it on the basis of which whatever has been said in the judgment could be sustained. However, it is equally possible that the material which the Court/disciplinary authority may collect may not be enough to substantiate those allegations. When both the possibilities are there, the learned Single Judge should not have returned firm findings at this pre-mature stage.
13. It would otherwise be seen that the writ petition had questioned the high handed activities of the police against the petitioner No. 2 wherein various reliefs have been claimed. The reliefs claimed were based on several causes of action for which specific remedies were provided under law. The petition also involving disputed questions of facts which could not have been decided by the Court in exercise of its power of judicial review. As held by the Hon''ble Supreme Court in
"9. Having regard to the allegations and counter-allegations made by the parties before us, we are of the opinion that no relief can be granted to the petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.
10. A writ petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution."
Therefore, even in this view of the matter, the findings recorded by the learned Single Judge would essentially have to be treated as only tentative and prima facie.
14. The findings recorded by the learned Single Judge are otherwise required to be taken only prima facie and tentative for yet another reason, because if taken to be final or conclusive, this would be contrary to the settled proposition of law that "unless a person is convicted, he is presumed to be innocent." The presumption of innocence is a human right. The law does not hold a person guilty or deem or brand a person as a criminal only because an allegation is made against that person of having committed a criminal offence - be it an allegation in the form of a First Information Report or a complaint or an accusation in a final report u/s 173 of the Criminal Procedure Code or even on charges being framed by a competent Court as held by the Hon''ble Constitution Bench of the Supreme Court in a recent decision in Manoj Narula vs. Union of India W.P.(C) No. 289 of 2005 decided on 27.8.2014 wherein it has been held as follows:
"24. The law does not hold a person guilty or deem or brand a person as a criminal only because an allegation is made against that person of having committed a criminal offence - be it in the form of an off-the-cuff allegation or an allegation in the form of a First Information Report or a complaint or an accusation in a final report u/s 173 of the Criminal Procedure Code or even on charges being framed by a competent Court. The reason for this is fundamental to criminal jurisprudence, the rule of law and is quite simple, although it is often forgotten or overlooked - a person is innocent until proven guilty. This would apply to a person accused of one or multiple offences. At law, he or she is not a criminal - that person may stand ''condemned'' in the public eye, but even that does not entitle anyone to brand him or her a criminal."
Therefore, merely because a First Information Report is lodged against a person or a criminal complaint is filed against him or even a charge has been framed against a person, he cannot be presumed to be guilty because this itself would frustrate and, eventually, defeat the established concept of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty and there is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. [See:
15. This takes us to the second submission raised by learned Advocate General whereby the State has taken exception to the directions No. (x) to (xviii).
16. The Hon''ble Constitution Bench of the Supreme Court in
"120.1. Registration of FIR is mandatory u/s 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
We are of the considered view that the directions No. (x) to (xviii) as passed by the learned Single Judge have lost efficacy in view of the recent directions of the Hon''ble Constitution Bench of the Supreme Court in Lalita Kumari''s case (supra) and accordingly, the same shall stand substituted by the aforesaid directions in Lalita Kumari''s case.
17. We have been informed that under the orders of the Court, a sum of Rs. 15,60,000/- has been deposited in the Registry of this Court. Needless to say that this amount shall not be withdrawn till the conclusion of the departmental/criminal proceedings and shall abide by the final outcome of all these proceedings.
18. The upshot of the aforesaid discussion is that the findings recorded by the learned Single Judge with respect to the guilt of the accused police officials will only be considered to be prima facie and tentative and we further clarify and make it absolutely clear that the observations made therein shall have no binding effect whatsoever or in any manner influence the ongoing disciplinary or criminal proceedings. The directions No. (x) to (xviii) as passed by the learned Single Judge would be substituted by the directions No. 120.1 to 120.8 issued by the Hon''ble Constitution Bench of the Supreme Court in Lalita Kumari''s case. Lastly the amount of Rs. 15,60,000/- deposited in the Registry of this Court shall abide by the final outcome of the disciplinary/criminal proceedings.
With these observations, all appeals are disposed of, so also the pending application(s), if any. An authenticated copy of this judgment be placed in all the connected files.
Ex. Petition No. 30 of 2012 and COPC No. 4158 of 2013
19. These petitions for the time being have been rendered infructuous in view of the aforesaid orders passed in LPA Nos. 480, 281 and 282 of 2012.
