'Accountability Required': Uttarakhand High Court Orders CBI Probe, Transfer Of Jail Guards, Departmental Proceedings Against SSP In Custodial Death Case

The Uttarakhand High Court on Thursday ordered a Central Bureau of Investigation (CBI) probe into the custodial death of a 35 year old prisoner at the Haldwani Sub-Jail. The Court was adjudicating upon a plea filed by the prisoner's wife seeking a transfer of investigation from the Haldwani police station, Nainital to the CBI citing wilful negligence on part of the police in handling the case. The plea also levelled grave allegations against the jail authorities in causing the untimely death of the concerned prisoner.

Taking cognizance of the grievance raised, Justice Ravindra Maithani also issued directions for the transfer of the Nainital Senior Superintendent of Police (SSP) and the Haldwani Circle Officeer (CO) for their alledged complicity. Departmental action was also ordered to be initiated against the Nainital SSP.

"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 are not taken by the administration", the Court opined.

Background:

In the instant case the prisoner had been arrested for sexually assaulting a minor girl and thereafter lodged at the Kashipur police station on March 3, 2021.Thereafter, he was remanded to judicial custody by the Additional District Judge, Udham Singh Nagar and accordingly shifted to the Haldwani. Sub-Jail on March 5, 2021. The remand sheet did not note any injuries on the prisoner.

Furthermore, on the same day the hospital at the Sub-Jail had examined the prisoner and even then no injuries were noted. Suddenly on March 6, 2021 an entry was made in the register of the hospital that the prisoner had fallen down and hence was transferred to the Base Hospital, Haldwani. In the Base Hospital, it was recorded that the prisoner had been brought dead. Consequently a post mortem was conducted wherein it was recorded that the prisoner had suffered from extensive bodily injuries.

On coming to know about the death of her husband on account of unexplained injuries, the petitioner had approached the Nainital SSP and other high ranking officials to lodge an FIR. However, her fervent requests were denied. Thereafter she moved an application before the Secretary, District Legal Services Authority (DLSA), Nainital citing allegations of death in judicial custody. The Secretary, DLSA forwarded the application of the petitioner to the SSP on March 22, 2021 for taking necessary action at the earliest. However, instead of lodging an FIR, the Nainital SSP got an inquiry conducted by the Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since a Magisterial inquiry was underway, any further action can be taken only after the completion of the Magisterial inquiry.

As a last resort, the petitioner approached the competent Magistrate following which an order was passed and an FIR was lodged against four guards of the Haldwani Sub-Jail for the commission of offence under Section 302 (murder) of Indian Penal Code (IPC). Consequently the instant petition was filed seeking the transfer of investigation to an independent agency in order to conduct a fair and unbiased investigation into the custodial violence.

Observations:

The Court at the onset noted with anguish that in the instant case the FIR was lodged on May 26, 2021 nearly 45 days after the custodial death of the deceased. Under such circumstances, the Court opined that the possibility of a fair trial is extremely bleak.

"How can a fair investigation be ensured? Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat. But, the ground realities in such cases of custodial violence and custodial death cannot be ignored", the Court opined.

The Court also made reference to various Apex Court judgements which have advocated for the initiation of strict penal actions against perpetrators of custodial violence. Reliance was placed on the Supreme Court judgement in Re-Inhuman Conditions in 1382 Prisons wherein it was observed that stringent action must be taken against perpetrators of custodial violence.

Further opining on the extensive injuries suffered by the deceased prisoner, the Court observed,

"Whether the CO had satisfied himself that the injuries could have been sustained by felling down on ground or being hit on some surface? What was the nature of injuries? It was not merely abrasion or contusion alone. It was all over the body. It was on the sole of the feet and when the doctor dissected those injuries he found contused subcutaneous tissues, clotting of blood. Does it suggest that the deceased was hit with much force with brutality on his heels even?"

While noting that High Court's power to transfer investigation to a separate agency such as the CBI must be used sparingly, Justice Maithani observed that the gravity of the allegations calls for a CBI probe. Furthering opining on the authenticity of the allegations raised, the Court remarked,

"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?"

Accordingly, the investigation was directed to be transferred to the CBI. Furthermore, the four accused guards of the Haldwani Sub-Jail were ordered to be transferred from the Sub-Jail to some place outside the district, so as to ensure a fair investigation. If this was not done, nobody would dare to speak the truth and only witness would be those stone walls, the Court opined.

Due to his wilful complicity in delaying the lodging of an FIR, departmental action was also initiated against the Nainital SSP Nainital. A copy of the order was also directed to be immediately forwarded to the Principal Secretary (Home), Government of Uttarakhand, the Director General of Police, Uttarakhand. and the State Human Rights Commission, Uttarakhand.

Case Title: Bharti v. State of Uttarakhand 

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