In a latest, learned, laudable and landmark judgment titled Pravat Chandra Mohanty vs The State Of Odisha & Anr. in Criminal Appeal No. 125 of 2021 (arising out of SLP (Crl.) No. 6174/2020) with Criminal Appeal No. 126 of 2021 (arising out of SLP (Crl.) No. 6224/2020) delivered on February 11, 2021, a two Judge Bench of the Apex Court comprising of Justice Ashok Bhushan and Justice Ajay Rastogi refused the plea seeking compounding of offences of two police officers accused in a custodial violence case. It must be mentioned here that though considering their age, the sentence was reduced, the Bench enhanced the compensation to Rs 3.5 lacs each in addition to compensation awarded by the High Court to be paid to the legal heirs of the deceased. The Apex Court rightly underscored that custodial violence is unacceptable in civilized society. So there has to be zero tolerance for it. We thus see that the Apex Court rejects the plea of police officers seeking compounding in view of settlement.
To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ashok Bhushan for himself and Justice Ajay Rastogi after granting leave in para 1 wherein it is put forth that, “These two appeals by the accused have been filed against the common judgment of the Orissa High Court dated 09.11.2020 dismissing the Criminal Appeal Nos. 207 and 210 of 1988 filed by the appellants. Both the appellants being the accused in Lal Bagh P.S.Case No.273 of 1985 were tried in Sessions Trial No.246 of 1985 for the offences punishable under Sections 304, 342, 323, 294, 201 167, 477-A, 471 read with Section 34 of the IPC. Learned Sessions Judge convicted the accused Pratap Kumar Choudhury under Section 304 (Part II) IPC to undergo R.I. for eight years and accused Pravat Chandra Mohanty under Section 304 (Part II) to undergo R.I. for five years. Both the accused were further sentenced under Section 471 IPC read with Section 466 IPC to undergo R.I. for three years and R.I. for three months under Section 342 IPC and R.I. for one month under Section 323 IPC by judgment dated 29.08.1988.”
To put things in perspective, the Bench then states in para 3 that, “Aggrieved by the judgment of the trial court the appellants, Pravat Chandra Mohanty (hereinafter referred to as “Mohanty”) filed Criminal Appeal No.207 of 1988 and Pratap Kumar Choudhury (hereinafter referred to as “Choudhury”) filed Criminal Appeal No.210 of 1988 before the Orissa High Court. The High Court decided both the appeals by its judgment and order dated 09.11.2020 partly allowing the appeals. The conviction of both the appellants under Section 304 (Part II) IPC read with Section 34 IPC and Section 342/34 IPC was set aside and their conviction under Sections 323/34 IPC and 471/34 IPC was upheld. The High Court convicted both the appellants under Section 324/34 IPC. Simple imprisonment for one month was imposed under Section 323/34 IPC. Simple imprisonment for three months for the offence under Section 471/34 IPC and simple imprisonment for one year for the offence under Section 324/34 IPC were imposed by the High Court. All the sentences were to run concurrently. Aggrieved by the above judgment these appeals have been filed.”
Be it noted, it is then envisaged in para 14 that, “The High Court in its judgment has noticed the prosecution case in paragraph 2 of the judgment. Paragraph 2 of the High Court judgment is as follows: “2. The prosecution case, as per the first information report (Ext.1) lodged by Kusia Nayak (P.W.1) on 05.05.1985 (Sunday) at 11 a.m. before the D.S.P., City, Cuttack(S) is that the informant was staying in a rented house of one Bishnu Mohanty of Rajabagicha, Cuttack. On 02.05.1985 he had been to Nayagarh in connection with the marriage of his nephew and returned home to Cuttack in the morning hours of 04.05.1985. After arrival, he was informed by his wife Kanchan Dei (P.W.18) that there was quarrel between their Basti residents Sura and Bainshi on Friday. He went to the market and returned at about 4 p.m. when his wife told him that Pramod Naik, Benu Naik and Guna Naik were abusing her in filthy language and telling her to drive out her family members as they had no houses and no holding numbers. The informant was also told by his wife that 4 Thana Babu of Purighat police station had called him to go to the police station. After sometime, Kasinath Naik (hereafter ‘the deceased’) also told the informant that the constable had come and told him in that respect. Accordingly, both the informant and the deceased decided to go to Purighat police station. In the evening hours, when both of them reached at Purighat police station, one police officer having mustache told the deceased that on the next time, he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid. The deceased remained silent. The said police officer also used slang language against the deceased and told that he belonged to Alisha Bazar, Cuttack and he would not allow the family of the deceased to stay at Cuttack and no lawyer could do anything to him. The deceased replied to the said police officer that on being assaulted, his wife and son had filed the case before the Legal Aid and he did not know anything in that respect.
It is further stated in the first information report that the said police officer having mustache gave a kick to the deceased and again used slang language and also gave two blows on the hands of the informant and also kicked him. Then said police officer having mustache further assaulted the 5 deceased who cried aloud and in that process, he sustained bleeding injuries on his body. The informant was asked to wait in one room of the police station and the deceased was taken to the other side verandah of the police station and was assaulted. Though the informant was not able to see the assault but he could hear the cries of the deceased. Then the police officer called the informant outside and after he came out, he saw the appellant Pravat Mohanty assaulting the deceased by means of a stick and the deceased was crying aloud. The informant gave water to the deceased on being told by the police officer but the deceased was having no strength to walk and he was just crawling. The deceased came near the informant and he was having bleeding injuries on his hands and necks and the legs were swollen. The deceased was telling that he would not survive and would die. When the deceased sought permission to attend the call of nature, the police officer having mustache and appellant Pravat Mohanty further assaulted him. When the deceased again requested to attend the call of nature, with permission of the police officer, the informant took him for such purpose and after they returned, the appellant Pravat Mohanty asked the deceased as to why he was limping. The deceased was given bread to eat but when he refused, appellant Pravat Mohanty compelled him to take bread and further assaulted him 6 on his knee. Getting indication from the constable, the informant concealed the bread and told the police officer that the deceased had already taken the bread. The said police officer brought liquor in a bottle and poured it in the mouth of the deceased as well as the informant and then sprinkled liquor over them and went outside of the police station. Sura Naik (P.W.13) who belonged to the Basti of the informant came to the police station and talked with one Mishra Babu secretly but on seeing the deceased and the informant, he went away. Then appellant Pravat Mohanty again assaulted the deceased and asked him to sit in a vehicle to go to the hospital. At that time, it was 11 to 12 O’ clock in the night. The appellant Pravat Mohanty, a driver and a constable lifted the deceased and placed him inside the vehicle and he was crying that he would not survive. When the informant expressed his eagerness to accompany the deceased to the hospital, he was told that there was no necessity to accompany the deceased even though the deceased was calling the informant to accompany him. After the deceased was taken away from the police station, one constable chained the left leg of the informant to a table of the police station and in the morning hours, the informant was untied as per the instruction of the appellant Pravat Mohanty. One sweeper was called to the police station and he was asked to clean the blood and stool of 7 the deceased which was lying at different places inside the police station. At that time the informant came to know that the deceased had died in the hospital last night. The widow of the deceased had also come to the police station crying but she was not allowed to stay there by the Havildar. It is mentioned in the first information report that the police officer having mustache was a fair and tall person.
On receipt of such first information report, Purighat/ Lalbag P.S. Case No.273 of 1985 was registered under sections 302, 342, 323, 294, 201 read with section 34 of the Indian Penal Code on 05.05.1985 at 11 a.m. against appellant Pravat Mohanty and the other police officer of Purighat police station having mustache.”
In retrospect, the Bench then points out in para 15 that, “The prosecution in the trial has examined 39 witnesses, i.e., PW.1 to PW.39. PW.1, Kusia Naik, being informant, eye-witness and injured witness and PW.39 Gaganbehari Mohanty, being the IO. No witness was examined for the defence. A large number of Exhibits running Ext.1 to Ext.67/1 were produced by the prosecution. Ext.A to Ext.J were also admitted into the evidence by defence. MO.I to MO.VII were material objects. After marshalling evidence on record, the learned trial judge while holding conviction under Section 304 (Part-II) read with Section 34 IPC recorded its conclusion in paragraph 74 which is to the following effect:
“74. It is thus found that there is nexus between death of the deceased and the act of the accused persons in subjecting him to long detention throughout the night and in mercilessly beating him. Therefore, it is clear that such death was caused by the act of the accused persons. They did it in furtherance of their common intention. The facts of the case disclose that there might not be an intention to cause such bodily injury as was likely to cause death. But the facts disclose that the accused persons knew that their act would be likely to cause death. Hence, it is found that the accused persons also committed an offence punishable u/s 304(Part-II) I.P.C. read with section 34 IPC.”
In hindsight, it is quite clearly stated in para 18 that, “Both the appellants have been convicted under Section 371/34 IPC by the courts below, finding offence of forging and fabrication of record to be proved. The reason for fabricating the false story that deceased, Kasinath Naik came to Police Station to lodge an FIR about the assault on him at 9 p.m. was only with a view to save the accused, with intent to explain injuries caused on the body of deceased which he received during his stay in the Police Station. As noted above, the conviction of the appellants under Section 371/34 IPC has not been challenged before us. The defence taken by the appellants has miserably failed. The High Court after re-appraising the evidence on record including the oral and documentary evidence has come to the conclusion that ante-mortem injuries noticed on the person of the deceased as per postmortem report were caused in Purighat Police Station during his stay from 7.30 p.m. till post midnight on 4/5.05.1985 and the evidence of the scientific officer and chemical report also corroborates the assault at the police station and the appellants were author of those injuries. The trial court has also held in its judgment after marshalling the entire evidence that injuries were caused to the deceased, Kasinath Naik in the Police Station, Purighat by both the accused. The High Court on reappraisal of the evidence came to the same finding.”
It cannot be glossed over that it is then observed in para 19 that, “We have carefully perused the judgment of the trial court as well as the High Court and have adverted to the marshalling of oral evidence by both the Courts below as well as analysis of the documentary evidence on record where evidence of PW.1, who was the informant and eye-witness has rightly been believed by the trial court and the High court to the fact that both deceased and informant arrived at Police Station after 7.30 p.m. and they were mercilessly beaten by Choudhury and Mohanty. In spite of Varandah of the Police Station washed in the morning by the sweeper, the scientific officer, who visited the police station found the blood stains in the Varandah.”
It also cannot be glossed over that it is then stated in para 20 that, “The evidence of PW.1 could not have been discarded merely because he was an agnate of the deceased. In the long cross-examination, PW.1 could not be shaken and his evidence of account given of beating of the deceased by the Police Officers, i.e., Choudhury and Mohanty is to be believed and relied on.”
It is highly commendable to note that the Bench then without mincing any words goes forth to observe in para 36 that, “Present is a case where the offence was committed by the in-charge of the Police Station, Purighat, as well as the Senior Inspector, posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society.”
More pertinently, the Bench then while referring to a relevant case law adds in para 37 stating that, “We may refer to the judgment of this Court in Yashwant and others vs. State of Maharashtra, (2019) 18 SCC 571, where this Court laid down that when the police is violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. Following was laid down in paragraph 34: –
“34. As the police in this case are the violators of law, who had the primary responsibility to protect and uphold law, thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Maharashtra State Police is “Sadrakshnaya Khalanighrahanaya” (Sanskrit: “To protect good and to punish evil”), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment on the accused herein.””
Most pertinently, the Bench then underscores in para 40 that, “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution. Although the High Court has awarded the compensation of Rs.3 Lakhs in favour of the legal representatives of the deceased. We are of the view that compensation awarded was not adequate.”
As it turned out, the Bench then holds aptly in para 43 that, “Looking to the facts that both the appellants are more than 75 years of age now, we are of the considered opinion that the ends of justice be served in reducing the sentence awarded for conviction under Section 324 IPC to six months instead of one year. Additionally the legal heirs of the deceased can be compensated by the compensation which has been offered and deposited by the appellant in this Court. Thus, sentence of one year is reduced to six months by awarding compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court. The compensation deposited in this Court shall be remitted to the trial court who may pay the same to the legal heirs of the deceased. The affidavit has been filed before us that the deceased had four sons, his wife is dead, the entire amount be disbursed equally to two sons who are alive and heirs of two deceased sons.”
Finally, it is then held in the last para 44 that, “In result, the appeals are partly allowed. The sentence awarded to the appellants under Section 324 IPC of one year is reduced to six months with enhancement of compensation to Rs.3.5 lacs each in addition to compensation awarded by the High Court to be paid to the legal heirs of the deceased. The compensation to the legal heirs be paid as directed above.”
In conclusion, it is a brilliant, bold, blunt and balanced judgment which makes it absolutely clear that there has to be zero tolerance for custodial violence. Those men in uniform who still indulge in it are liable to pay heavily for it. This alone explains why the compensation to be paid to the legal heirs is enhanced from Rs 3 lakhs as awarded by the High Court to Rs 3.5 lakhs each even though considering their advanced age of 75 years their sentence awarded for conviction under Section 324 of IPC is reduced from 1 year to six months. Very rightly so!