CRM 176 of 2024-Sarvadaman Singh Oberoi Next Friend v. Commisioner of Police

CRM-176-2024 HRGR01-002872-2024
Sarvadaman Singh Oberoi Vs. Commission of Police & others.
Present: Sh. Sarvdaman Singh, Reporter/next friend of Victim in

person.
Criminal Misc.Appeal received by way of assignment. It
be checked and registered. Now, the case is adjourned to 12.04.2024
for consideration on the point of maintainability.
Roopam (UID No.HR-0146)

Monika SG-1 ASJ,Gurugram. 28.02.2024
CRM NO. 176 OF 2024
I
[N THE COURT Ol<' LD. ADDITIONAL DISTRICT & SESSIONS
JUDGE-CUM- SPECIAL JUDGE HUMAN RIGHTS, GURUGRAM
ORIGINAL REPORT NO._ _ _OF 2024
(FOR APPOINTMENT OF INDEPENDENT PROSECUTOR TO PREPA

RE
AND PRESENT CASE BEFORE SPECIAL JUDGE HUMAN RIGHTS
FOR
PROSECUTION OF UNKNOWN PERSONS lN ACCORDANCE
WITH
INTERNATIONAL LAW - JUS COGENS)
IN THE MATTER OF:

Sarvadaman Singh Oberoi, Next Friend, aged 75 years s/o late Capt. H.S.
Oberoi, r/o 1102, Tower-I, Uniworld Garden I, Sector-47, Gurugram
122018, Mob: 9818768349 Email: manioberoi@gmail.com
...... Reporter/Next Friend of Victim
Versus
1. Commissioner of Police, Sohna Road, Near Raj iv Chowk, Civil Lines,
Gurugram, Haryana 122001, Email: cp.ggn@hry.nic.in
2. Union of India, through The Cabinet Secretary, Government of

India,
Rashtrapati Bhawan, New Delhi 110004, Fax: +91-11-230122874, Email:
cabinetsy@nic.in
3. State of Haryana through its Chief Secretary, 4th Floor, Haryana

Civil
Secretariat, Sector-I, Chandigarh. Email: cs@hry.nic.in
........ . Defendants
4. The Registrar General, The High Court of Punjab & Haryana, Sector
-!,
Chandigarh 16000 l Email: highcourtchd@indianjudiciary.gov .in
5. The District Court, Gurugram through its Superintendent, Sohna Road,
Near Rajiv Chowk, Civil Lines, Gurugram 12200 I, Email;
dsjgrg@hry.nic.in
... ... Proforma Defendants
VICTIM REPORT OF FACTS BY NEXT FRIEND UNDER SECT

IONS
30 & 31 OF THE PROTECTION OF HUMAN RIGHTS ACT,
1993
READ WITH ARTICLES 2.3, 5.2, 9, 10, 11, 14, 16 & 26
OF
Il'ffERNATIONAL COVENANT ON Cl\·1L AND POLIT
ICAL
RIGHTS, 1966 FOR APPOINTMENT OF INDEPEND
ENT
PROSECUTOR TO PREPARE AND PRESENT CASE BEFO
RE
SPEClAL JUDGE HUMAN RIGHTS FOR PROSECUTlON
OF
UNKNOWN PERSONS IN ACCORDANCE WITH INTERNATIONAL
LAW - JUS COG ENS
Respectfully submitted,
L
l. That Next Friend herein is resident ofGurugram, and brings to attention
of this Learned Court. victim report of facts under Sections 30 & 31 of the
Protection of Human Rights Act, 1993 read with Articles 2.3, 5.2, 9, 10, 11,
14, 16 & 26 of International Covenant on Civil and Political Rights, 1966 for
appointment of independent prosecutor to prepare and present case before
Special Judge Human Rights, Gurugram for prosecution of unknown persons
in accordance with international law - jus cogens, in the custodial death of an
undertrial as recorder in P.S. Bhondsi DDLE No. 10 dt 12.01.2010, in which
continuing failure to register the mandatory FIR till last 14 years has now
become a festering sore in the brilliant human rights record of India.
2. Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on
Civil and Political Rights, 1966, state, inter alia:
ICCPR 2.3 Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
ICCPR 5.2 There shall be no restriction upon or derogation from any of the
fundamental human rights recognized or existing in any State Party to the
present Covenant pursuant to law, conventions, regulations or custom on the
pretext that the present Covenant does not recognize such rights or that it
recognizes them to a lesser extent.

ICCPR 9.1 Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as
are established by law.
ICCPR 9.2 Anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his arrest and shall be promptly informed of any charges
against him.
ICCPR 9.3 Anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to
release. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings, and, should occasion arise,
for execution of the judgement.
ICCPR 9.4 Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court may
decide without delay on the lawfulness of his detention and order his release
if the detention is not lawful.
ICCPR 9.5 Anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.
ICCPR 10.1 All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.
ICCPR 10.2 (a) Accused persons shall, save in exceptional circumstances,
be segregated from convicted persons and shall be subject to separate
treatment appropriate to their status as unconvicted persons;
ICCPR 10.2 (b) Accused juvenile persons shall be separated from adults and
brought as speedily as possible for adjudication.

ICCPR 10.3 The penitentiary system shall comprise treatment of prisoners
the essential aim of which shall be their reformation and social rehabilitation.
Juvenile offenders shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.
ICCPR 11 No one shall be imprisoned merely on the ground of inability
to fulfil a contractual obligation.
ICCPR 14.1 All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
The press and the public may be excluded from all or part of a trial for reasons
of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests ofjustice; but any
judgement rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
ICCPR 14.2 Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law.
ICCPR 14.3 In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full
equality:
ICCPR 14.3 (a) To be informed promptly and in detail in a language which
he understands of the nature and cause of the charge against him;
ICCPR 14.3 (b) To have adequate time and facilities for the preparation of
his defence and to communicate with counsel of his own choosing;

5
ICCPR 14.3 (c) To be tried without undue delay;
ICCPR 14.3 (d) To be tried in his presence, and to defend himself in person
or through legal assistance of his own choosing; to be informed, ifhe does not
have legal assistance, of this right; and to have legal assistance assigned to
him, in any case where the interests of justice so require, and without payment
by him in any such case if he does not have sufficient means to pay for it;
ICCPR 14.3 (e) To examine, or have examined, the witnesses against him
and to obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him;
ICCPR 14.3 (t) To have the free assistance of an interpreter if he cannot
understand or speak the language used in court;
ICCPR 14.3 (g) Not to be compelled to testify against himself or to confess
guilt.
ICCPR 14.4. In the case ofjuvenile persons, the procedure shall be such as
will take account of their age and the desirability of promoting their
rehabilitation.
ICCPR 14.5 Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to law.
ICCPR 14.6 When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been reversed or
he has been pardoned on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person who has
suffered punishment as a result of such conviction shall be compensated
according to law. unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.

ICCPR 14.7 No one shall be liable to be tried or punished again for an
offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.
ICCPR 16 Everyone shall have the right to recognition everywhere as a
person before the law.
ICCPR26 All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
3. The following list (chronological as far as possible), demonstrates that
this is the rarest of the rare cases, and the documents listed are enclosed for
the assistance of the independent prosecutor which needs must be appointed
by this Learned Court in accordance with international law - jus cogens,
Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on Civil and
Political Rights, 1966, so as to enable preparation of a case for trial, which is
so far inchoate, in absence of filing of FIR.
Ser Particulars Date Pg Pg

original serial
order
I Order dt. 11.01.10 in State v. 11.01.10 39 I
Krishan passed by Sh. Rajan Gupta,
JMIC, Gurgaon
2. Post Mortem Reoort dt. 13.01.10 13.01.10 245-252 2-9
3. District Jail, Gurgaon No. 1241 dt. 25.01.l 0 61-62, 10-12
25.01.10 217
4. FSL Report No. I0/Chem-354 dt. 29.01.10 253 13
29.01.10
5. District Jail, Gurgaon No. 1241 dt. 09.03.10 57-58 14-15
09.03.10
6. Reoort of JG Prisons - 267-268 16-17
7. Haryana Government Letter No. 07.05.10 271 18
40/4/2020-JJJ-II dt.
7
8. Subsequent Opinion In Post Mortem 25.08.10 254 19
No. OM/26/10 dt. 13.01. 10
9. Magisterial Inquiry Report 02.04.11 41-56 20-35
(Incomplete) dt 02.04.11
I 0. District Prison, Gurgaon No. 536 l 02.05.11 272 36
dt. 02.05.11
l I. Request for Snaction For Prosecution 12.06.11 73-151 37-115
dt. 12.06.11
12. District Jail, Gurgaon No. 7737 dt. 29.06.11 59-60 116-117
29.06.11
13. Punjab and Haryana High Court No. 06.08.11 152,238 118-119
27936 L.81. Gen (3) dt. 06.08.11
14. District and Sessions Judge, 02.09.11 153- 120-122
Gurugram No. 20936/J.9 dt. 154, 239
02.09.11 (signed by Vimal Kumar)
[AIR 1949 Patna 222 (FB) 05.11.48 - 123-134
VIOLATIONl
15. Judgement passed by Sh S.K. 15.02.14 76-92 135-151
Khanduja, ASJ in Case No. 45/2013
titled Parvesh Kataria v. Unknown
on 15.02.14
16. Judgement passed by Sh. Rajesh 13.08.14 93-103 152-162
Kumar Yadav, SDJM, Sohna in
Complaint No. 63/2013 titled
Parvesh Kataria v. Unknown on
13.08.14
17. Judgement passed by Sh Phalit 27.01.15 56-75 163-182
Sharma, ASJ in Case No. 34-A/2014
titled Parvesh Kataria v. Unknown
on 27.01.15
18. CRM-M No. 5280/20 I 5 titled Lt Col 05.02.15 23-77 I 83-237
SS Oberoi (Retd) v. Unknown with
State of Harvana
19. Judgement and order dt. 27.02.15 27.02.15 - 238
passed by Hon 'ble Justice Daya
Chaudhary in CRM-M No.
5280/2015 titled Lt Col SS Oberoi
(Retd) v. Unknown with State of
Harvana
passed by Hon 'ble Justice Daya
Chaudhary in CRM-M No.
34001/2012 titled Parvesh Kataria v.
State of Harvana
passed by Hon 'ble Justice Ramendra
Jain in CRM-M No. 44361/2017
titled Sarvadaman Singh Oberoi v.
Union of India and others
22. Judgement and order dt. I0.12.18 10.12.18 - 241
passed by Hon 'ble Justice Rajbir
Sehrawat in CRM-M No.
State of Harvana
23. Documents Submitted to SCB, 27.12.19 - 242-243
Haryana (at Gunurram) on 27 .12.19
passed by Hon 'blc Justice Ravi
Shankar Jha & Hon'ble Justice
Vikas Bahl in CRM-M No.
44361/2017 titled Sarvadaman Singh
Oberoi v. Union ofindia and others
passed by Hon 'ble Justice Ritu Bahri
& Hon'ble Justice Nidhi Gupta in
CWP No. 24079/2015 titled Rani
Devi v. National Human Rights
Commission and others
passed by Hon 'ble Justice Mahabir
Singh Sidhu in CRM-M No.
State of Harvana
27. Updated Case Chart for Substantial 22.01.15 - 247-253
Questions of Law in the Judgement
passed by Sh Phalit Sharma, ASJ in
Case No. 34-A/2014 titled Parvesh
Kataria v. Unknown on 27.01.15
28. Judgement and Order dt. 26.02.2024 26.02.24 - 254-288
passed by Hon'ble Supreme Court of
India in Crl, Appeal No. 684/2012
titled Shailesh Kumar v. State of
U.P. (now State of Uttarrakhand)
PRAYER
That it is therefore humbly prayed that Learned Human Rights Court may
kindly set the international human rights law in motion vide Sections 30 & 31
of the Protection of Human Rights Act, 1993 read with Articles 2.3, 5.2, 9, 10,
11, 14, 16, & 26 oflnternational Covenant on Civil and Political Rights, 1966.
d~
Sarvadaman Singh Oberoi
Next Friend
1102, Tower-I, Uniworld Garden I, Sector-47,
Gurugram 122018,
Mob: 9818768349 Email: manioberoi@gmail.com
-35-
In the Court of Sh. Rajesh Gupta, Illaqa Magistrate, Gurgaon
State Vs. Krishan Kawaria
U/s 324, 506 I.P.C
FIR No. 75 of 12-3-2008
P.S. Sector 5 Gurgaon
Case No. 355
21/4/08 DOD: 28-4-2011
Present: APP for the State.
Accused Krishan is in custody.
Accused produced before me in compliance of
non-bailable warrant. Let the accused be taken in custody and
be sent in judicial custody upto 25-1-2010.
JMIC Gurgaon/ 11.1.2010
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On The Body of: Name: Krlshan Kumar @ kaowarla

f / KNamei Ram Prasad
Jot
Residence: 8 BIS\'-ta, PS Sec>S, Gurgaon VIiiage,. GGN
Male 50 y
GURGAON Date: 13/01/,010
Body Brcllght BY: Body Id,ntified By: 1. Jin Prakash SJ o Late

(Name,No,Rarak & Signature or Police HC. Ratan Pal, ·6181 PS 8hondsi Ram Prasad 2. Dharam Pal
Officer) 5/o Mehar Singh
Whence bf~ht; GH,GGN

Village. thana,
diStri~
DATE ANO HOUR OF

Death: Examination of Body: Despatch of ApPf:arance
tmatterto of
Chen'\ical syrrtptoms
Exan,iner: of poison
. . or disease:
o."" ,l/01(2010 ,,..,, 13/01/WlO f ~iscera for dlE ffllal and
histopatll-01091
Tin,e: nme, 09:00:00 I
Sylllt,ltorm observed Brought dead as per rucca sent by Or. Anurag Verma to
before duth: concern oolic:e station.
Alleged h/o sudden CQlapse, brought to GH, GGN where
lhtormatiort Ftlmlshed
by Police: ..
he was declared brought dead at 7:50AM Ofl 12.01.2010
:'l tl; • The Medical Officer win observe the state of all organs and \ffflen he finds no disease or injury, he $hould Mite the
appropriateplaQ: the word ..Healthy•.
I • EXTERNAL APPEARANCE
175cm
1.) lehgth of Body
Nll
2.) Mark of UgatLfre on
neck and dissection, etc
A dead body of avercge built, wei.Uing dothes as per inquest papers, Sf?aled along with
betongings recover« from them and ~anded ovar to the I/O. Rigor mortis developed all
3.) C<indition ohubJed: over body. Dar\< r~d<.ish. discolouration seen on back and all postenor parts of the body
Stout,ernaciattd,decomposed,etc.. except pressure i;:oins, ~o blanching on appUr,.aOOn of pressure .a~C on dissei:.tiol1, no_ .
subcutaneous ecchyl nosis seenr Interpreted as post mortem stnnin 1 Post mortem sta1rnn9
dothing
fixed, Eyes semi~dG~ gd, cornea hazy. Following artides were r&O'-·•:' red from the dothes o
the deceased: (l} R.!. 138 in cash (2) Yellow coloured metallic pen!.lent. Eaematous lcsior
seen on lower pans :Jf ,..n- bn.
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4,} Wout«ist bruises, position,. size, tenure
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tt.8, - The Spinal Cord need not be examined unleff any indiCltlon of disease or injury exists.
5.) Scalp, $kvll and NAO 6.) Membrane.es - Brain., Spinal Brain oedem&tous, congested.
vertebrae Con! Sent for hlstopathology.
Ill -THORAX
NAO
1.) Walls, ribs and cartilages
2.) Pleurae
NAD
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Congested, Sent for hlStopathology and chemlcal examination,
4.) Right Lung
S.) Left Lung
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WeJghS 330gm, sent for histopathology and plaln blood sent for chemical er.aminatlon along
6.) Perlc,,rdium with viscera.
Heart
___________,__________________________
Large vessels
IV-ABDOMEN
L)Wall
NAO
2.) Peritoneum
NAD
3.} "'1math, Pharynx: and Oesophagus
Contains dark broWnish coloured Hul<I "'"'f 100ml, mucosa shows patchy congestion.
4.) stomach and its co11tents
contains chyme and gases.

5.) Small Intestines and their
contents
!Contains faecal matw and gases.

6.J Large Intestines and their
wnteRts
--------------------
Congested, sent for hi~ alnotogy,
1.) Uvei-
Congested, sen_t for hist ,pathology.

8.) Spleen
\ IConges(l!d, sent for h1'topathology.
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11.) Ot-gans of generation External
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V • MUSCLES, BONES, JOINTS
Injury IDisease of Deformity IFraaure Io\stoatian

NIL
VI • REMAnKs BY MEDICAL OFFICER

Opinion:
tfhe cause of death in th\S case will be gtven after receMng the chemical analysis and Hlstopattrological analysis report for which
vfsara has been di.ily preserved, seated and handed over to the t/O.
Handed <>¥1,r To Police:

I. Well StJtured dead body of deceased with Its belongings alter poot mort.em. 2. Original PMR. 3. Police lnqu?St papers from page
1 - B duly signed by us. 4. one sealed envelope bearing five seats, addressed to Oirec::tor FSL Madhuban, Karna!, containing
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forwarGblQ letter, copy of PMR and Police papers and sample seat 5. one·se.aled box bearing ten seats containing rr..ie battles
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talnJng vise.era as per forwarding letter, each bottle be.uing two seals. 6. Two sealed jars containing parts of each herniSphere
Brain as wtiole In 10% formalin. 7. One sealed Jar containing parts of Livet,Splecn,both K'idneys,and lungs in 10% fonnaUn. 8.
One sealed jar containing Heart as a wha'e in 10% formalin. 9. One sealed envelope beafing five seaJs. addressed to HOD, Deptt.
l'athology, PG!MS Rohtak containing 1'o!w3Jding letter, COW of PMR and seal 10. Sample seal
Probahle time that elapsed -- Variable
(a) batween injury and death
(b) between death and PHI; 24- 36 h.xirs
Polk2 O f f i c e , w h o ~ ; : ~ : /J Names of Medical officers who have conducted PM Exam.
Name ~ o Pal, PS ilhondoi, GG,U... '15:: Dr.DEEPAK MATHUR.
Or.Pawan Kumar
618 Chaudha,y
Head Conffltble or.B.B. Aggarwal
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Annexure P-£
From
Superintendent
District Jail, Gurgaon.
To
Hon'ble Court Sh. Pawan Kumar,
Judicial Magistrate 1st Class,
Gurgaon.
Sr. No. 1241 dated 25-1-10.
Subject: Regarding production of accused in cu.stody Krishan @
Kawaria s/o Ram Prasad, r/o 8 Biswa, P.S. Sector 5, Gurgaon,
District Gurgaon in Case FIR No. 75/ 08 u/s 324/ 506 IPC
Sector- 5 Gurgaon, on Dated 25-01-2010.
Sir,
With reference to above stated.
Hon'ble Court is hereby informed that accused in custody
Krishan @ Kawaria s/o Ram Prasad was confined in this Jail
since 11-1-2010 in case FIR NO. 75/ 08 u/s 324/ 506 !PC
Sector- 5 Gurgaon. On dated 12-1-2010 because of sudden
J!!l:!ess the above stated accused was referred to General
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Hospital, Gurgaon and the dead body of the accused has been
handed over to the relatives after post-mortem.
Thus today dated 25-1-2010 it is not possible to produce
the accused. Hence the custody warrant of the dead accused is
being sent to the Hon'ble Court. This is being sent for Hon'ble
Court.
Enclosure: Warrant in original.
Sd/- 25-1-10
Deputy Superintendent
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or
1 Ptease q!J()l'e lhe BeDOM 10p\nion No. &. Oate !fl casf of 3ny Jurth~l'conespc,Qdi:ince summons.
2 Aep.:;11 s~ll not be rep,oouceO e1ieep1 ~_lul\, without wrm8n 11,pproval·oli.he Oirector
,____------------- --·-----------......J
To
Tb•. As.-c..tt. l....omf!"li~~!on~r of POH~~.
~-t:rnesar, SOu~l_, Q,a~iv''Pl: -,-•,c~-
Your forwarping m~m.Q N9.~0a1ed.· 15.0LIO regardin$ ...Q.!!!_sealed, parcel

(S) ,o c, inection with q0):/_9; .1~Tai~t-~~- ,P:N,\_O Vrid~~ s~~i~:i> ",114 y~PC:Po)ice'Station
~l,ind, _stated uy y~u.,tosh,av~ ~.~,l: d'.~.tc~ed v,de)l.. C; ~l\11>;:•·~".9~ted1:-·~l8:0t:10 through
!.,l !m "' Sini;h N~.f~~,,~.eceiv~il,~~th1~.9•.~i."?~.or, 18.01.10; '#,.•·--~ , • •• '\ ,
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sp,·cim," seal (s) as per: forwardin~'.muthuiii/{lctt<;r .• • ' • .·, •
Q,.scriQtion of a,;iicle_(s) xl)'\l,!li~~d.,\!Li!arcel (s)
No. & seal D,·sc~•iptlpn of p~rc~I !<}
in, pn,ssion
l 0-Motuary One. seal~ cl.0th parcel enclosing a card board'box containing
GH foUo.wir.g exhibit,
Curgaon Viscera ofl)er.eased: Kr!shan Kumor@ Kanwaria s/o Ram Prasad
Pi,w.'}!o- OMiW10 <lill'f!J;'l,l,9: ;, .
]::xbMa: S.tomach. parts <ifsmalttiti<;l,l'!fge intestin~.
f1bt 01b: l'a!t_s of liver; sp(eii>J9g;'ki<;liiey .
. Exbt~JE Blood from heart •P~!ox::80 mt.
lcxbt:ld: S•li!'e preSCIYll,tiye •1>.p_ro1<-500 ml.
Labo'ratorv E:rnndrii\tiin,:
Cl.omical <cs>< and. tech;;qMes •wer~ ·J;,1plo)i,id :jp ,S~tec~ pomi;nQR_g~ses>.~s ~nd volatile
p1>ison •, metallic P?iso~~. :_i~orgn:n:i?."·nhion$, pl:ant ·f)ois§~11. Pfit1~~~~:"~:~d~.~:~:rJ~CXl.~ib~t~~ h~. 1-b.
L anr !cL BaH:d uptm,;he examini1tion earned ·ont. ..111- thri.'·l~~-O.ratpry;'lh~fre~ults_~-ar.e.-·g:.u:en as
u ;(\er , - ·' • ·\'
-53-
•
Annexure P- Lr
From,
The Superintendent,
To,
The SHO,
Police Station Bhondsi (Gurgaon)
No............... Dated ................. .
Subject: Regarding the Viscera report/ final opinion about the
cause of the death of deceased Krishan @ Kawaria s/o Ram
Parshad. Expired on 11/12-1-2010 at G.H. Gurgaon.
Kindly refer to NHRC, New Delhi Case NO. 181/7/5/2010-
AD/ UC/M-5 on the subject cited above.
It is intimated that the Viscera report/ final opinion about
the cause of the death of above said under trial deceased has
not been received from your office till date. The NHRC, New
Delhi, The Director General of Prisons, Haryana, Sector-14,
Panchkula and District Magistrate Gurgaon is pressing hard for
the above said reports.
So you are requested to please collect the same from the

Rashmi
I
,,.,.,. .,,,
2013.10.07 11:59
True Scanned
CFO'l""""rne
orlgiriai--
PHHC,Chandigarh
d
authorities and forward to this office for onward
-54-
(5
submission to the NHRC, New Delhi at the earl_iest please. Please
treat it as most urgent.
Sd/- Superintendent
District Jail, Gurgaon
Endst No. 4003 Dated: 9-3-2010
1. A copy of the above is forwarded to the Senior
Superintendent of Police (Custodial Death Cell), National
Human Rights Commission, Faridkot House, Copernicus
Marg, New Delhi for information please.
2. A copy of the above is forwarded to the Director Genera! of
Prisons, Haryana, Sector 14, Panchkula for kind
information please.
3. A copy of the above is forwarded to the District Magistrate,
Gurgaon for kind information please.
4. A copy of the above is forwarded to the DCP (South)
Gurgaon with request to please direct the SHO Bhondsi for
obtaining the above said report from concerned authority
so that the report could be sent to the NHRC, New Delhi as
early as possible.
Sd/- Superintendent
District JaH, Gurgaon
9-3-2010
Rashmi
I
""""''""
2013.10.07 11:59
True Scanned
Cop~ Of the
Ongmal
PHHC,Chand!garh
,-269-
.._.J 16 4
ANNEXURE· R-4
ENGUSH TRAJSLATION
I
This case is regarding enquiry ordered by Director General of Prisons,

Haryana i.r.o the notice received from Human Rights Commission regarding the death of
under-trial prisoner Krishan Kumar in District Jal, Gurgaon on 12-01-2010.
In this regard on 05-03-2010 the undersigned went to District Jail, Gurgaon

and conducted enquiry and recorded the statement of concerned staff and prisoners. In
this regard Warder Ramdharl whose duty was at Mulaeja ward from 06.00 AM to 10.00
AM where the aforesaid prisoner was confined Jstated in his statement that at 06.00 AM
in went to Mulaeja ward and everything wak fine thereat at about 06.05 AM duty
I
Nambardar called and said that one prisoner is sick. This information was given by him to
Head Warder Jagdish who was on Gasht at that time. Head Warder Jagdish quickty
brought the keys of the ward and prisoner Krishan @ !(awaria was taken to Jail Hospital
by them and the sick prisoner was examined by the Medical Officer present.
In this regard statement of the concerned Doctor was recorded who stated
in his statement that on 11-01-2010 under-trial prisoner Krishan @ Kawaria s/o Ram
Prasad entered District Jail, Gurgaon and was checked as per rules. The prisoner was
fine and prisoner did not disclosed about any old disease or regarding taking any type of
medicine. In the morning of 12-01-2010 he re~eived emergency call regarding sickness
of prisoner and he immediately went to Jail a~d examined prisoner Krishan @ Kawaria
s/o Ram Prasad, the health of the prisoner was looking serious. He provided emergency
treatment to prisoner and after putting oxygen mask on him referred him to General
hospital and Pharmacist was also given direction to .go away with the said prisoner.
Pharmacist stated in his statement that he alongwith Head warder Khem Chand went to
Hospital with the prisoner and that the said prisoner started taking long breathes when
they had travelled some distance and when they reached hospital with the prisoner the
Doctors declared him dead after examination.
During enquiry it came out that uhder-trial prisoner Krishan @ Kawaria s/o
Ram Prasad entered in jail on 11-01-2010 in 4se FIR No. 75/08, u/s 324/506 IPC, Sh.
P.R. Sharma ASJ Nuh 5adar, Gurgaon. The said prisoner was checked by the Medical
Officer of Jail and as per his report prisoner was fine and at that time prisoner did not
disclosed about any old disease or regarding taking any type of m'edicine. The
statements of those prisoners were also recorded who entered in Jail on 11-01-2010
Rashmi
(pr, :lif~d~n jail) and were confined alongwith the said prisoner and they stated
• lH\\\, Copy Of the
,..._ .t,ha ~ ~ ~ k e d by the Medical Officer after they entered Jail and after talashi all
/ (\ /'\ '- Contd ... 5
.... ··~ ~-..-'!'_:,....~ ,J
, -270-
5
, \,..!
the 32 new prisoners were· sent with the Constable to new Mulaeja barrack and also told
that no beating was given to the said prisoner and nor any fight/quarrel took place
between any under-trail prisoners.
In this case Magisterial enquiry was conducted by Sh Mukesh Rao, JMIC,

the report is still pending. As per the Viscera re,ort of the said prisoner the Final cause of
death has not been received however, as per t e post-mortem report of the prisoner no
mark on any injury is found on the boy. of the deceased. In this regard on
12-01-2010 .information was given to all the concerned offices by the Jail administration
without any delay. After property going through all the facts and circumstances of the
enquiry report I have come to the conclusion that no torture/beating has been done by
the jail administration with under-trial prisoner Krishan @ Kawaria and on 12-01-2010
when under-trial prisoner fell sick he was referred to General Hoospltal after giVing
emergency treatment. Thus, no irregularity has been found on part of the Jail
administration. Enquiry Report Is forwarded.
-sd-
Inspector General of Prison
Enquiry Officer
-~·····-4. ~ - ~=----~--------------------
-•.-,,,;,.,,.,,.,.•--
.-273- /4,, ,. ")tld <' ill
NifB. C Matter
No. 40/4/2010-3JJ-ll
From
The Financial Commissioner & Principal Secretary to
Govt., Haryana, Jail Department.
To
The Assistant Regl;:tr~r (L,1w),

National Human Right,: Commission,
Faridkot House, Copernicus Marg,
New Delhi -1 l0001.
Dated:
Subject: - Custodial death case of convict UTP Krishan Kumar confined

In District Jail, Gurgaon on 12.l.2010.
***
r am directed to invite your attention case No. J 8 J/75/20 IO-

.....
AD/UC/M-5, dated 6.2.2010 on the subject noted above and to send the copy of
requisite enquiry report of Inspector General of Prisons Department, Haryana "'
your good self. It is also submitted that there is no negligence on the pa11 0f .lail
Officers/ Officials in the Custodial death case of convict UTP Krishan Kumar
confined in District Jail, Gurgaon. So, keeping in view of the fact:, given in the
report of Inspector General of Prisons Department, Haryana, and nc monernr;
grant should be granted to next kin of deceased convict UTP Krishan Kumar
confined in District Jail, Gurgaon.
Yours faithfully,
Under s~;;Jails & Judicial, .

for Financial Commissioner & Principal Secretary
to Govt., Haryana, Jails Department.
r
'
Dated
A copy is forwarded to the followi;,g v1ith th-= request that the case
• ).f may be attended in NHRC along.with the relevant record and send the repof'i ,,:
1~·M Govt immediately after-a~tending, th;~~;;::-·
\ ~ l. The Director General, Prisons, Haryana, Sector- I4, PanchkuiH.
, f\/:,1 {\ ~ T h e Superintendent Jail, District Jail, Gurgaon.
', ,,1?rues~·~~·
th
-.· .• , /?
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.,· ·- /;·~•· li/J_L-
• IJ'HHC Chan a r'\.. . .,, - -
, . , -~~ • '
. • ' Under S!Jgt ary Jails & Judicia,.
't • ~~ 1tlol111 '.i~ for Financial Commissioner & Principal Secr~:a:.
·J. -~,dlQ,...., •
~
•
-251-
Dated, 25.08;2010
-·~
,,-~
'!J ! ,cg_. r:ot ovi~i~n riigan.lilij(Post,Mom,111 No. HM/26/Ilfirlt: ,q:t:imo, 'i,

0
~: , ; ,, ;; ,~as ei l Kris hii ri'~Kl1rifa r @'.1(an wa dn· S/Q'Rii~~¼pf~~a'<t ~- f:.' • ' '
•-·---• • • •,)i . • -~ ",'...,-,-.,~".• ·~,:"•'f...-!.\:;;:~••_l'.,;..f I •
--
,l,· '"'', J rhe chemical

.
analysis,
. - No.1/Clieni ~ 354--l)t.29',i:fO,
....report ., .. -
stating
. • -
tbatno
. . '
n. w.ni,,t ru)h..on was dCtectt".d in exhihits-s~t_ti fo them~ .

! : ,to1 .,,holugy report no. l'atli· Y'lo / 4.65 tlat~J 9.07:201(\'..-..a·0- .iis~ r;ceil'e.d an,lc
. .•• ... .. _ • • _,-' .-:,·..i.:":iV5~-iPf _.--;> -~;:., ,
~;.,tel! 1oil.d to _n1~~e~:lte atheroSclerOSis_ iu both the ·;._°i~:~~~-~~2~;!~~~ ~ection~~rr.o.m
l,'iio w•.~e nnrj>markab!¢, ·!iver slio,r~d r,.,ty eliange with _nilld ·-perl0 port~1'.
ufb .rnation 8,sp!cen/kidnoyssltow~'\)g.,.ti~"- • '·
- • •- •' - ' ,- t . .
:.n , . »ewin1: th.!_tcmical ana~:!s i-i~~i+& Hilltopatluil!i~ re.pit'1 · as)~:•!las]:Posl

I/·, ,·,11 ,cp-,rt 'If above m_ei1tio1,1ed a,~~C:i>iJ, w~ tbe Jio.aii ni•~lle'ri·dre:of0th~
. ,,:, ·"" that ab,ove ~•pvrt• ·& autopsy (h\Jiugs are coosistf11t witb deal~ (lue to,
~••': • . ~' • • ! •
::tt.1 1;: r~Uuwi11g_ ~o_rc;1~~-'l.t-.e£t~·ry d~s_~a~e.. . ,_· . . ~ ..- 1"
Sr,. :.cquL•.m;1 tb-~:Ports nlong with'.llih f:!lihi{,O_~v&s h:ufrl~ci,.oV.er.to-~ iv{().µ

• ·· •• ' f,r ~h,
•> ~·-~
.....
~¢;:-
l)~.IJci~al< Mathµr, ·""""'
M.O (S:>l); 1''orensic Medicine
~;u, c~,r;~a.,oJl.
37CJ,.~ ~ ~C\w~ ~ ~ \)~ 2e¼~ 2c, \,
.- - b ":::,""'- \'I\_'-"-~'- ~ '
. - ~o~~ ~-~uv.
~~ - I.
Magisterial Inquiry in case of custodial death of Krishan @ Kanwaria

-1-
From
Mukesh Rao,
Civil Judge (Jr.Divn)-cum-
Gurgaon.
To
• The learned District & Sessions Judge,

Gurgaon .
. Subject : Magisterial Inquiry in case of death of under trial prisoner

Krishan @Kanwaria son of Ram Prasad aged 50 years
r/o 8 Biswa, Police Station, Sector-5, Gurgaon, District.
Sir,
With due respect it is submitted that an application was moved by The

Superintendent, District Jail, Gurgaon in connection with Magisterial Inquiry in case of
custodial death of above said Krishan @ Kanwaria before learned CJM, Gurgaon which
was marked to the undersigned for conducting inquiry. The said direction was received
to the undersigned at 1.45 PM and thereafter· I proceeded towards General Hospital,
Gurgaon alongwith my stenographer Shri Mandeep and saw the dead body lying in the
General hospital, Gurgaon in the presence of doctor available in the hospital on duty and
also got photographed the dead body which was having injuries on the back. I also
recorded the statements of following witnesses:-
1. Shri Hukam son ofShr. Chiranji Lal r/o village Madnaka Tehsil Hathin, District
Palwal. (recorded in jail)
2. Shri Ram Pat son of Pehlad r/o village Ibrahimpur, Tehsil Bawa!, District
Rewari. (recorded in jail)
Shri Hanuman son of Shri Khushi Lal r/o village Bimar, District Sapatari,Nepal
(recorded in jail)
4. Shri Jagdish Chander Head Warder no.16,District jail Bhondsi(recorded in jail)
5. Kuldeep Singh Constable No.1088,Police Station,Bhondsi Gurgaon.
(recorded in the hospital)
6. Dr. Renu Sharma, Medical Officer posted at District Jail, Bhondsi Gurgaon.
( recorded iii jail)
7. Shri Ramesh Kumar Yadav, Jail Superintendent District Jail, Bhondsi.
( \,: :1tt:~n,. • A1°1'ESTE1'
8. 1 .' :W.ll~~!h Ka~ia s/o Sh. Ram Parshad Kataria, r/o C-45, Old DLF ~ \\\.\) \1
( =m ra'efl m 1'.f!e hospital) . • D-, >il
Gurgaon and pentlanent resident of 8 Biswa Gurgaon village. _:'-'' l- ••. ,_ • ,,,tlte
D1t,t, · "lJ
GUttGf,.J
Y
:: •.; 38-
J,
":,
2-I
)/II'/ ',. .. Magisterial Inquiry in case of custodial death of Krishan @ ~waria
t. ~ -2-
·7 9. Sbl-i Vmod son ofShri Rambir Singh r/o village Ghamroj, District Gurgaon.
(recorded iri jail). ,
10. Shfi Virender constable no.719, Police Station Sector-5, Gurgaon.
(recorded in hospital as was called by the police of PS Bhondsi),
11. Smt. Parvesh Kataria, wife of Shri Krishan Kataria r/o village Gugaon
(recorded in hospital as was available in the hospital).
•
'
12. Shri Shamsher Singh son of Shri Ranjit Singh r/o Mohalla Mehalwada, 8 Biswa
Gurgaon village and at present resident H.No.818, opposite Petrol Pump,
near Sector-12, Gurgaon. (recorded in the hospital as was available in the
hospital)
13. Dr. Vivek Garg, Medical Officer, General Hospital, Gurgaon(recorded in

hospital).
14. Shri Sanjit Ballhara, lnspector/SHO Police. Station, Sector-5,Gurgaon
(recorded in the hospital as was called by the police of PS Bhondsi who
conducted inquest proceedings)
15. Dr. Anurag Verma, Medical Officer General Hospital, Gurgaon. (recorded
in the hospital).
16. Shri Roshan Lal, Pharmasist Posted at District Jail Bhondsi, Gurgaon(recorded
in the hospital).
17. Shri Khem Chand, Heard Warden, District Jail Bhondsi, Gurgaon(recorded in
the hospital)
18. Shri Laxmi Chand, constable no.3029, Posted at Bhondsi Jail, Gurgaon.
(recorded in the hospital)
'
The statements of above witnesses were recorded on 12.1.20 IO on the day when
inquiry was received. In the hospital photocopy of I-card of Election of Shamsher,
photocopy of driving licence of· Om Parkash, brother of deceased was produced as
identity proof of the witnesses who deposed and were taken on record. Medical
checking/treatment record ofKrishan @Kanwaria was also taken on record.
The dead body was lying in the hospital and in later part of office hours when
undersigned returned back to his office it was brought to the notice of undersigned by
the p - ffi~~H,,wortem examination of the dead body was not conducted and in this
regar llllil. ~&•3Uections annexed as Annexure-A was issued to Chief Medical Officer';'D
Gurg ~ :;'~tute board of doctors immediately and to send the report po;itl'?,1,Y at . \,1)\
the earliest. ~ ' 11
~ • ~,:.t. c -· • ,ur
Ii--- Gv " ..
Magisterial Inquiry in case of custodial death ofKrisban@ Kanwaria
-3-
0n the next day i.e., 13.1.2010 copy of DDR dated 12.1.2010 and copy of post
mortem r~port of deceased K.rishan Kumar@ Kanwaria conducted on 13.1.2010 was
produced alongwith photocopy,,of inquest papers by the police and was taken on record.
On 13.1.2010 Shri Om Parkash Kataria, brother of deceased K.rishan @

Kanwari also produced application annexed as Annexure-B alongwith voter list showing
fabricated votes got prepared by Shri Sukhbir Singh .Kataria, Minister of Haryana
Government and on which they raised objection and disclosed that the reafon of death in
custody was the handy work of the Minister as aforesaid in collusion with police
officers/officials and others.
The statements of following witnesses were also recorded :-
l. Shri -R.amdhari, Warder Belt no.1772, District Jail, Gurgaon(recorded on

l3.t.'2010 in the court as he was not found available in the jail on 12.1.2010
and Jail Superintendent send him on the next day in the Court)
2. Shri Kuldeep Singh, constable n().1088 (photographer) Police Station,(Bhondsi)

(recorded in the court on 14.1.2010)
3. Shri R.S. Saini, Advocate (recorded on 16.1.2010 in the Court.)
On 16.1.2010, doctors of Civil Hospital, Gurgaon tendered their replies as Mark-I

andMark-2.
On 28.5.2010, statements of following persons was recorded in the Jail at
Bhondsi, G~aon :-
l. Shri Vijay Pal Head Warder (statement and supplementary statement)

2. Shri Devi Dayal, Deputy Supreintendent
3. Shri Satyawan Warder no.680
I Shri Ram Kumar, Warder no.1547
J. Shri Sahid Hussain, Deputy Superintendent
6. Shri Ranbir Singh, Warder no.480,
Thereafter on 25 .3.2011 statement of Angrej Singh, constable no.3134 was

recorded after calling him from Ambala who reportedly took the undertrial Krishan @
Kanwari to jail who made st.atement that he could only depose after perusing the records
from Police Station, City, Gurgaon and after this he appeared again and ~ D
1 1
statem-~fiil~cr~ in detail on that day itself. • 1 • ~· ,1
True Scanned I•("
fil;l~ Copy Of the . j\:.,"'}{
~ On mal
• ;::: cfflJ&ai'i/i!•ef present inquiry is to find out whether the death of the undertriiil '\, j:d.ga
~ a s natural or due to some other reason. Dil;Lt. :u;~,~~N J,,
-40-

-4-
Admittedly deceased Krishan @ K.anwaria was taken into custody by Shri

Virender Singh, Head Constable of Police Station. Sector-5, Gurgaon in a case titled as
State vs. Krishan @ K.anwaria iu case FIR No. 75 of 2008 under sections 324/506 IPC ,
police Station Sector-5, Gurgaon on 11.1.2010 and at it is also admitted that at that time
of arrest of deceased he was quite well.
The depositions of witnesses recorded in brief are as.follows :-
Hukam Singh (accused/detenue languishing in jail}--- This witness deposed that

he w;as the lambardar of Mulhaiza ward and Krishan came yesterday i.e.,
11.1.2010 at about 8.30 PM and was upset and he took only one chapati and
slept at 9.00/10.00 PM and the witness put one more blanket on the deceased and
on 12.1.2010 at about 5.45 AM deceased took one 'hichki' and about this he
informed to duty official Ramdhari and then Krishan was taken. to the hospital
and was taken out of the jail.
Ram Pat(convict lodged injail)---This witness deposed that he was oldest convict
in the ,Mulhaiza ward and Lambardar and was in that ward for the last four
months and Krishan came in that ward at 8.30 PM and in the register mantained in
this regard his name was also entered in which his name was written as Krishan
son of Ram Parshad and thereafter he was given food in which he took one
chapati and thereafter he was feeling cold and blanket was put on him by Hukain
Lambardar and Krishan remained disturbed whole of night, and·at 6.00 AM from
the mouth of deceased fog was coming .out and was taken to hospital of jail and
thereafter after deputing guard he was taken out of jail.
Hanu~an (accused lodged injail)---This witness deposed that he was confined in

a theft case in the jail from 10.1.2010 in the Mulhaiza ward and he after taking
food at about 6.30 PM slept and he was knowing nothing and on 12.1.2010 he
came to know that the.person named Krishan had died who was sleeping in front
of him.
Jagdish Chander Head Warder --This witness deposed that he was on duty
during U/12-1-2010 2.30 AM till 12.1.2010 and during his patrolling.everything
was alright and thereafter he went in Mulhaiza ward and asked Rampat lambardar
and it was at about 3.20 AM of l l/12.1.2010 and everything was well and
thereafter he went to hospital and everything was well. At about 6.00 AM during
patrolling on hearing some noise he saw in block and noticed that fog was
coming out from the mouth of detenue Krishan and he after taking 'rajai' from
tll~i7G.!~n~ put the same on krishan and thereafter took him to the ATTffiE?
h ~.. a~*!lft"ml that time krishan was breathing but was in un-conscious ~l-1 ,~'
c ,,..; :lvl'f,li'ffd;tfrereafter doctor referred t'?e detenue and the due to this witness ...... b-l • .. H
started after the duty ofHawaldar Nafe Singh. Su;,,_........ d -" 1 •
Oistt. & ~ .s •. '1,!,/
p>'
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Kuldeep Singh, constable of Police Station Bhondsi-This witness deposed that
he took the photos of deceased Krishan in the morning in the hospital and after
physical examination by the undersigned his photos were taken again from the
front side of his body and of the back side. He came on the asking of police
of police station Bhoncisi and will produce the photographs.
..
Dr. Renu Sharma---This witness deposed that on 11.1.2010, she examined
Krishan son of Ram Prasad who was produced before her for medical
examl.nation and accused were prdouced before her as and when entry in the
Jail Gate was made and she examined Krishan Kanwaria son of Ram Parshad
whose mother name is Jalli and name of brother is Om Parkash whose height
was 5'7" who was produced in case FIR No.75/08 u/ss 324,506 IPC, Police
Station, Sector-5, Old Gurgaon and she made entry in this regard at serial
no.244 of 1I.1.2010 and she also prepared entry in this regard and filled up
the same which bears her signatures, she usually fill up the entry in the register
meant for proforma for health screening on the asking of accused himself and do
not used to let off all the clothes of each and every person for being checked
without making any specific complaint in this regard because it is impossible
to practically check each and every person being entered in the jail for her as she
was all alone only single doctor working for the last 4-5 days and on that day
i.e. 12.1.2010 at about 6.00 or 6.30 AM she was informed that deceased
Krishan was serious then she checked him and found that vitals were very poor,
blood pressure was un-recordable, pulse rate was feeble and not oriented to time
place person, she administered him injunction eforline and injection Dexona
and applied Oxygen and she prepared referral card and referred him to General
hospital, Gw-gaon as patient was un-conscious at that time as he was not
respon!!\ing to verbal command. They send Pharmasist Roshan Lal after
applying Oxygen to accused and send for General Hospital, Gurgaon as the
vehicle•is short of make SUMO and there is no ambulance with the Jail
authori,ties that is why she could not accompany the patient. As per her view
accused/deceased Krishan might have died because of Cardial attack or brain
sewere attack however the possibility of death due to injuries cannot be ruled
out, although the patient has not specifically pointed out about his iajuries
to her.
Ramesh Kumar yadav, Jail Superintendent Bhondsi Gurgaon---This witness

deposed that on 12.1.2010 at about 6.20 AM telephonically Deputy
Superintendent Shri Raj Kumar Hooda informed him that one detenue was serious
an-d P.;· ~enu _Shanna, disclosed that de~nue was serious and was to be send to~ED
1 4'ilro!f~, Gurgaon and at that time two constables and one Pharm•~ - •
4"1J@~e was send to Civil Hospital, Gw-gaon and thereafter the said
,_·.; te~ic'f/isplcted the Juvenile ward where detenue was kept and alongwith
~ ,\.\,
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him Deputy Superintendent and Assistant Superintendent R.K.Hooda and ~'::,:~·:, - • 1:,,.
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-42-
Magisterial Inquiry in case of custodial death of Krishun @ Kanwaria

/
>
Sudershan respectively were accompanying and it was found,that detenue took
one chapati during night and there was no complaint of any quarrel.
,.
Om Parkash Kataria(brother of deceased)--This witness is brother of deceased
Krishan and deposed that his brother visited his house on 10.1.2010 at house
no.402/12 Gurgaon who was quite well and was happy and his brother also
disclosed before him that due to absence from his dat~ in the Court his warrants
were issued but the said witness assured his brother to got release him on bail but
when on Monday the information was sought from the. wife of deceased and it
came. to know that the police of Police Station Sector-5, Gurgaon has arrested his
brother and took him away and his brother came to him on 10.1.2010 at about
10.0(j AM and when his brother came Manjeet Singh son of Shanti Swaroop
resident ~f H.No.482/12 (Sector-12), Gurgaon, J.D. Sharma r/o H.No.474,
Sector-12,Gurgaon and one or two other persons were also available. He was
astonished from the death of his brother and. the circumstances of death and this
witness· further deposed that in the year 2009 he got registered complaint bout
forgery in Election with some persons, in the year 2009 in the elections of
Legislation and first time the election list was prepared having photos and when
they perused the list Sukhbir Singh Kataria who was member of their' village and
there was mention of voters 5-5 or 6-6 times of his relations •in the list of the
persons and it also revealed that in the list of city there was also such type.of act
done which counting was about 32,000/-. Complaint regarding this was made to
Deputy Commissioner Gurgaon, Election Commissioner,Gurgaon, ChiefMinsiter,
Police Commissioner etc. On the directions of Election Commissioner the inquiry
was pending and forgery of 9620/- votes were admitted to be false by the
Administration. Due to the said reason his brother whose warrants were issued
from the €ourt was got lifted and his brother due to beatings in the custody
succumbed to the injuries. The witness further deposed that his one house was
under c6nstruction in West Raj iv Nagar and which was the only one vacant plot in
the Rajiv Nagar whic~ was being constructed by him and the construction of \
which was got stopped by the Administration and Sukbir Kataria moved one
J
application in which it was written that the house be demolished whereas there
were 10,000/- other houses constructed in the surrounding in whlch around
50,000/- population was residing and Minister himself had constructed about 15
shops on the dividing road of sector-I 7-18 in one acre of land and one banquet
hall in the name of Notting Hill. ·The witness had got lodged complaint with
Municipal Committee in this regard. Minister was criminal type of person and
earlier also remained in jail and for several months and ·also remain confined in
judicial custody in case under section 376/34 IPC. The court of Shri Dheentj
Mor- •- 11i.,also ordered for the investigation in case of one forged ration card
• 20~1~7 11:59
wh1 , ·~. "vase of several ration cards on 13.9.2009, in whichAdministratioP\:~1'~0
i.e., i~c'.&!~ent had not submitted its report till date. To stop fh1 Ci) .,,,_ \,
construction of his house some police officials and some bouncer of Municipal .. ,~~'tc;-\
Committee were deputed which came due to pressure of Minister. The ho_gy{lt",t.:t"a.et": ~, ',y
• "S'-'.ir Et ':)t 'f.. \i J
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I -43-
2G
Magisterial Inquiry in case of custodial death of Krishan@ Kanwaria
-7-
,
ration cards which were used for the elections of Municipal ·Committee. in the
Mon~ of April~2005 complaint of which was made by Sunita Kataria of Gurgaon
village and the committee made in this regard and the same. could be produced as
and when required but police had not made efforts. The murder .of his brother was
committed due to grievance of the said complaints in which there is hand of
Sukhbir Kataria, Minister. The witness also raised suspicion on Commissioner
of Police, Deputy Commissioner, DCP, ACP, SHO an~ other officers of Jail
etc., in connivance with Sukhbir Kataria, Minister because any of the senior
officer did not act on the applications of witness because as and ~en information
underJnformation Act was sought it was replied that information was not
available. Earlier also threats were received from the side of Sukhbir Kataria
and now witness was having fear of his life and property and .prayed for
providing security and necessary action against the culprits.
Vinod(accused confined injail)--TIµs witness deposed that on 10:1.2010 he was

lodged;in jail in NDPS Act case and Krishan son of Ram Parshad Singh whose
age was about 50 years came in the jail at about 8.00 or 8.30 PM and also took
one chapati and on asking he told that he will not take more food and was upset.
During night he was feeling cold and blanket was put on him by Hukam Singh
lambardar and at about 6.00 AM on 12.1.2010 water came out of the mouth
ofKrishan and thereafter Lambardar infonned the officials of jail and.Krishan
was taken for treatment and on that day it was informed that Krisban had died.
Virender, constable no.719(posted in PS Sector-5, Gurgaon)-·This witness

deposed that he was posted as constable in police station Sector-5, Gurgaon and
his duty was to execute summons-warrant and he was having arrest wammt of
Krishan Kumar @ Kanwaria son of Ram Parshad r/o 8, Biswa. Gurgaon and for
the arrest of accused he went to the house of deceased about 1.0 days back where
Krisha.a Kumar was not found and at the house his wife was found available who
asked for the date and name of court and assured that she herself would produce
her husband in the court. On 11.1:2010 which was Monday at about I 0.30 AM the
witness stood outside the court of Shri Pawan Kumar, when Krishan and his wife
both came to him and informed that they were getting bail and their surety was
coming and requested to take them to the seat of their counsel and then the
witness alongwit..lt accused and his wife went to Shri Ajit Sheeran, Advocate and
after waiting for half an hour of surety and due non-arrival of surety of accused
and after preparing jamatalashi and information of arrest produced accused before
the Court and Court passed custody order of accused for fourteen days. The
accused was handed over to Naib Court Jagdish and till then the wife of accused
was accompanying and Naib Court Jagdish had also conversation with her. The _.-1?0
wl;3~:..-.,;...i
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9 that he did not get the accused medico legally examined mvft'll,:> 1 .:.-
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in . ','.. t@~tlfhis arrest was not given to anyone except wife of accused. ~ -of ,IA• ,,
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Parvesh Kataria(wife of deceased)--- This witness deposed that she is the ~~'<ff; scsci-0 ; ~ / _
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• Magisterial Inquiry in case of custodial death ofKrishan @Kanwiuia
-8-
_J
t.. deceased Krishan Kataria and her husband was quite well on Monday i.e.
11.1.2010 and there .was no depression of any type and .constable or Head
Constable who disclosed his name as Virender and this information was given by
her 'Devrani'(sister-in-law) to the effect that her husband was taken by the police
after arrest and thereafter she did not met her husband and,the information about
the death of her husband was conveyed to her by the police and the death of her
husband was in suspicious circumstance and prayecj.for inquiry.
Sh'amt1her Singh(cousin of deceased)---This witness deposed that Krishan @

K.iinwaria son of Shri Ram Parshad resident of village Gurgaon w.iis his cousin, on
IO.l.i010 (Sunday) came to him at about 7.30 AM and informed him about
jumpi~g of bail and the warrants were issued from the Court an.d he was in need
of some money and he came to his house situated at Sector-12, Gurgaon and was
sent after giving Rs.1000/-, he was quite well at that time and was not suffering
from any disease and his death was in suspicious circumstances and prayed for
conducting inquiry.
Dr. Vivek Garg--This witness stated he was on duty on 12.1.2010 from

8.00:AM tiJJ 2.00 PM. As per the records dead body ofKrishan @Kanwaria
son of Ram Parshad aged 50 years r/o 8 Biswa PS Sector-5, Gurgaon was brought
to casuality by constable Laxmi Chand from Bhondsi Jail at 7.50 AM and at that
time Dr. Anurag Verma was on duty and the needful was done by the Dr.Anurag
Venna at that time.
Sanjiv Ballhara Inspector/SHOPS Sector-5, Gurgaon--This witness deposed

that he was SHO of Police Station, Sector-5, Gurgaon and in the,police station
duty for execution of summons/warrants/non bailable warrants was given to
Virender whose number is 719 who also arrested deceased Krishan and produced
before the Court who was given directions to execute as per rules.
Dr. Anurag Vemta-- This witness deposed that deceased Krishan @ Kanwaria
s/o Ram Parshad was brought to him by constable Laxmi Chand no:3029 from
Bhondsi jail at 7.35 PM in approximation and after ECG test and as per the ECG
test·vital and BP, pulse rate were not recordable and pupils wete dilected and
fixed and he declared above Krishan brought dead on 12.1.2010 at 7.50 AM, and
he also supplied copy of ruqua to police in this regard.
Roshan Lal, Phannasist(District Jail Bhondsi)---This witness deposed that he was

posted as Phannasist in District Jail, Bhondsi and on that day he was on duty and
official of Duty Book Krishan Kumar Warder told to him and Dr. Renu Sharma
that one detenue was not feeling well and thereafter he and Dr. Renu Sharma
lffi~atelyg reached the jail hospital and the doctor checked up the blood •
lw1•n,r,,
True Scanned,..
·~~'Ot the detenue which alongwith pulse rate was un-recordabkflln~titse
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-41 .. Magisterial Inquiry in case of custodial death ofKrishan@ Kanwaria
-9-
~rate was also un-recordable , doctor administered oxygen and injection Efcorline
l(one M.L.) and injection Dexona 2(two ML) was administered which was given
by him and immediately Krishan Kumar was referred for Gurgaon hospital and
doctor did not accompany. When the detenue was being brought in the way by
Khem Chand Head Wardh and constable Lax.mi Chand in Ambulance the
condition of detenue become bad and detenue started breathing in long and the
doctor ofGenral Hospital, declared detenue brought dead.
•
Khem,-Chand ,Head Warder Bhondsi Jail--This witness deposed that he was
posted as Heard Warder in Bhondsi Jail and he was told by Laxmi Chand and
Krishan, constable/Jail Warder that Emergency Medical Guard was deputed and
he Laxmi Chand and Pharmasist Roshan Lal came after dressing and Krishan son
of Ram Parsad after talcing medical card proceeded at 6.30 AM in Ambulance
and the information for bringing deceased was given to them at 6.20 AM
on 12.1.20 l 0 and the deceased was in serious condition and deceased was
taking, long breathes in th way and the Pharmasist Roshan Lal asked to take the
vehicle at the earliest because condition ofKrishan was bad and he was
required medical aid and they reached with Krishan at hospital at about 7.35 AM
and doctor of General Hospital, Gurgaon after check-up declared him dead.
Laxmi Chand, constable{Guard of Bhondsi jail)---This witness deposed that he

was posted as Jail Guard at Bhondsi jail and on that day Krishari, co~le/Jail
Warder that Emergency Medical Guard was deputed and thereafter he, Khem
Chand Heard Warder and Pharmasist Roshan Lal came after prtiparation and they .
took Krishan at 6.30 or 6.45 AM and the information regarding deceased .
was given to them at about 6.20 AM and they reached in the hospital at about
7.30 A1yI and deceased Krishan was in a serious condition and the deceased
was taking long breathes in the way and Pharmasist Roshan Lal who was
with them checked him because doctor was not accompanying who asked
for taking the deceased earliest because he was requiring medical· attention
and when they reached Gurgaon Hospital doctor after checking declared
deceased dead and prior to declaring dead ECG was conducted. This witness
also produced photocopy of medical card.
Ranbir Singh, Warder(jail Bhondsi)--This witness deposed that he was posted as

Munshi in Jail and whenever any accused/detenue comes he used to take them
from Police Escort. Krishan@ Kanwari was also produced in Jail who later died
and he remembers that Angrej Singh constable no.3134 produced him in jail. This
witness stated that this statement was being given by him after tallying the same
6!!.ffi'l'~r:gs and accused was produced at 5.35 PM on 11.1.2010. ~
:JI!'.
~f--:t
l~~dverify~g the ~cord finally stated that Krishan@Kanw1\tfiih'a\'ffi'e ,\\
. ~1~~~anwana was either produced by Angrej Singh no.3134 l
r .end•\'\,.
1, ,.
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-46-
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i"J:' Magisterial Inquiry in case of custodi~eath of Krishan @ Kanwaria.
'_) -10-
or Roop:Nand ASI Escort Guard.
Devi Dayal, Dy. Superintendent Jail Bhondsi-•-This witness stated that whenever
any incident such like death of detenue, suffering from some ailment or injury the
first infonnation is given about it at Main gate or night duty official who is on
duty and information is also given to Jail doctor who at,o gives inforµiation to
duty person on night who gives information to Deputy Superintendent,
administration and Superintendent. On l 1.1.2010 night patrolling officer
was ,o;\,_,.ssistant Superintendent Rati Ram was on duty till 12.00 and th~reafter
second Assistant Superintendent was till lock-out and the version is of the day
on which krishan @ Kanwari died. Whenever such like incident occurs
they used to prepare the proceedings in a separate file and as per the statement
in that file ofRati Ram, Assistant Superintendent till night 12.00 there was
everything alright and the statement ofVijay Kumar was not availaple in the
file. Vijay Kumar was transferred from the Jail and was posted at Jind.
The Head Warder who was night officer namely is Krishan Chand and after 12,00
lock out Vijay Pal was on duty as per records who received information first time
about the incident. Munshi was having records about the producing of
detenue in the jail.
Vijay Pal, Head Warder Bhondsi Jail--This witness deposed that he was on duty
from 12.00 lock out till morning and Krishan @Kanwaria's ailment information
was given him by Ramdhari, Warder at 6.10 AM on 12.1.2010 and thereafter he
informed doctor through Ram Kumar Warder no.1547 who was on duty from 2.00
AM to 6.00 AM who was inside duty and Ram Kumar also informed Sh. Raj
Kumaf-Hooda, Deputy Superintendent and Superintend Shri RK. Yadav.
Satyawa,n Warder Jail Bhondsi -,-This witness deposed that on 12.L20I0 he was
posted on inside duty from 6.00 AM to 10.00 AM and he was informed about
ailment of krishan @· Kanwaria by Ramdhari at 6.10 AM and thereafter he
informed' Dr. Renu Shanna and Shri Raj Kumar Hooda, Deputy Superintendent
and Shri,R.K. Yadav Superintendent.
Ram Kumar, Warder no.1547---This witness deposed that on 12.1.2010, he was

on duty from 2.00 to 6.00 AM at inside main gate and he was not having
any infonnation about untowards incident with krishan @Kanwaria. He was
relieved by Satyawan, Warder and if any incident happens the information
about that was to be given to him.
Rashmi ~
2013.10.0711'59 • ..~~- \1
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Sri,~ ~~.t1,,,Peputy Superintendent Bhondsi ja!l---This witness deposed that ~;: r,,~t.
Supllfo1tend
"
was not on duty on that day and Ramb1r Warder no.480 and D~sh:;,r1ntef•(;.10 ,. '\•1 .
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--47- Magisterial Inquiry in case of custodial death of Krishan@ Kanwaria
-),"
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Raj, Warder no.1170 who was posted at the time of arrival of K.rishan @
Kanwaria on 11.1.2010 was also not present on the day of deposition. The duty
of both the said warders was for search on that day. This witness further
• deposed that as per their records from the pocket of deteoue Sukhdev son of
Mohan Lal as per ledg~ no.52 there is entry ofRs.300/- and.there was no
naine of any other person in the register meaning of which is that nothing was
found from any other accused at the time of arrival because when ever accused/
detenue search is being taken and entry is made in the register o(the person only
from whom something is recovered. Bidi , Cigarette , gold items and are not
allow~ and Rs.250/- are allowed and amount exceeding Rs.250/- are deposited in
records. On 11.1.2010 he alongwith Shri Devi Dayal. Dy. Superintendent went to
Refresher Course, Chandigarh and Shri Raj Kumar Hooqa, Dy. Superintendent
and Shri R.K. Yadav Superintendent were on duty. Krishan @ Kanwaria arrival's
entry is made at serial no.11 on 11.1.2010 and there are entries of 34 detenues and
one c;onvict. The entry of first detenue was made at 12.08 PM who was brought by
Head Constable Nasib Singh no.1061, Gurgaon whereas krishan @ Kanwaria
arrived at 5.35 PM and the last detenue arrived from Panipat at 8.57 PM who was
produced by Head Constable Balbir no.89, Panipat. .
Angrej Singh, constable no.3134/Gurgaon--This witness initially when

appeared on summons deposed that he was posted s gun men of¥l,A Chadhary
Rajbir Singh, since September-2010 and was able to depose till verifying the
records of PS City, Gurgaon.
Said Angrej Singh when stepped again deposed that he was posted in PS City
Gurgaon for around a year from September-2009 to September-2010 and
he wemt to leave krishan @ Kawaria to jail on 11.1.2010 but he was not
able tp re-collect the name of police officer who directed him to leave
krishan @Kanwaria in jail.
Mr. R.S. Saini, Ad'Vocate(counsel for accused)----This witness stated that

the bail bonds of accused Krishan were furnished on 28. 7.08 for the accused
in case FIRNo.75 dted 12.3.2008 u/s 324/506IPC and the surety was given by
the wife of accused and identification certificate was issued by MC Sukhbir
Kataria and was attached with bonds. This witness further stated that now he
came to know through newspaper that the accused has died in custody.
Smt. Kiran Lohia (Ahlmad)---This witness produced file titled as State

vs. krishan @kanwaria bearing criminal case no.355 of21.4.2008 FIR No.75/08
u/ss 324/506 IPC PS Sectgor-5, Gurgaon and produced copy of certificate issued
~W.,l;,~ ~s¢aria,MC Gurgaon and copies of bail orders and copy of i J u ~
I! in!fw~f arrest and copy of order sending the accused in custody as .1. ~\) ..., \,\ ,\ 1
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Magisterial Inquiry in case of custodial death ofKrishan @ Kanwaria
-12- ·-.
•.> '-s Mark-3 to Mark-6 respectively.
The report was kept pending awaiting viscera report which is yet to be received
and the undersigned has been transferred from District Gurgaon to 'sirsa as per the
orders passed by Hon'ble Punjab and Haryana High Court effective from 1.4.2011 and
thus the inquiry entrusted to undersigned is being submitted for appropriate action in the
matter.
The statements of the persons concerned and who were found linked for
extracting truth in the matter and reaching the conclusion were recorded. The dead body
was also physically checked and photographs were also got clicked from the official of
police department who was already present from Police Station Bhondsi, i.e., the area
under the jurisdiction of which Bhondsi Jail fulls where deceased Krishan @ Kanwaria
was stated to be lodged hnd information about death was given.
In theGeneral Hospital, itself statements of various persons were ~rded i.e. Om

Park.ash broUier of deceased , Parvesh Kataria wife of deceased, Shamsher Singh cousin
of deceased :who all stated that deceased was quite well prior to his arrest by the police.
1e statements of other various persons were also recorded in the hospital as welJ as in
Jail and in the Court in this context.
Admittedly Smt. Parvesh wife brother Om Parkash and cousin Shamsher Singh of
deceased deposed that deceased was hale and hearty. Arresting Officer Shri Vrrender,
constable also ,did not state about the ill health of deceased at the time of arrest of
Krishan @ K;mwaria (since deceased).
As per ·the deposition of constable Vrrender , deceased Krishan @ Kanwaria was

arrested . and he handed over accused to Escort Guard in the Court complex
~t that time ll_ut the records of Jail when got checked and statements of. the witness
'"anbir Singh ~tates that constable Angrej Singh took Krishan @ Kanwari at'jail at 5.34
PM on 11.1.20 I 0. • Therefore, the statement of Angrej Singh, constable who was then
pr-~•~d in police station City, Gurgaon was also recorded and who also admits his
fi..,._jon about taking the accused (since deceased) to jail for keeping him in judicial
custody but was unable to disclose the name of officer who directed him to take the
accused. It -is pertinent to mention here that the matter and case pertains to the police
station Sector-5, Gurgaon and the accused was to be taken to jail either by the police of
police station Sector-5, Gurgaon or by the Escort Guard deputed for this purpose and
who stays in court complex itself, but the mystery of taking the accused to jail by Angrej
) Singh, constable of Police Station, City, Gurgaon that too after a long interval of JPJ!)~ ~
_,,-1\M • . "4i~M raises suspicion and supports the allegations levelled by relativ~1.e., fK?.(",,v,,\
2013,10.0711,;;9 ·c.
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_1: -49- Magisterial Inquiry in case of custodial death ofKrishan@K.anwaria
I -13-
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hale fmd hearty and he died in suspicious circumstances.
Secondly, the version of constable Virender who executed the warrant. of arrest of
accused Krishan @ Kanwaria's that firstly accused alongwith his wife Parvesh met him
outside the Court of Shri Pawan Kumar, learned .JMIC, Gurgaon and he took them to the
seat of Advocate and due to non-availability of surety he vyas produced before the Court
and was sent to jail is not believable because the duty of Arresting Officer was not to
take the accused here and there but he was supposed to arrest the accused of whom he
was havinglwarrants of arrest in his hands and who was identified as accused. Hence,
his defence/version is false on the face of it.
Thirdly, the version of constable Virender that he also prepared jamatalashi

memo is ljllso false as the doctors who conducted post mortem report have mentioned in
the PMR ~bout the recovery ofRs.138/- and yellow coloured metallic pendent from the
pocket of accused which falsifies this version. Further the collusion of jail authorities
with the police and the pressure of Politician Sukhbir Singh, present Minister ofHaryana
Government is also visible from the circumstances apparent in the statement of Sahid
Hussain, Deputy Superintendent District Jail Bhondsi who· deposed that lqmbir and
Desh Raj officials of jail were on search duty on that day and search of accused was
. • conducted, which shows that the search of accused was taken twice firstly by Vuender
Constable and secondly by the officials of Jail and accused Krishan @ Kanwaria was
directly stated to be taken to General Hospital, Gurgaon for treatment where he was
declared brought dead and post mortem examination was conducted during the custody
of dead body by the doctors and was found following articles Rs.138/- in cash and
yellow coloured metallic pendent which shows that no search on the person of the
accused was ever conducted and only paper formalities were performed. Moreso,
Virender Singh constable no. 719 has deposed that he prepared jamatalashi n:iemo but has
not showri~the articles i.e. Rs. 138/- and yellow coloured metallic pendent in said memo.
He further deposed that he handed over the accused to Naib Court Jagdish but the
accused was left at Jail by Angrej Singh as per the deposition ofRanbir Singh Warder of
Jail and also from deposition of Angrej Singh, constable himself. • Angrej Singh,
constable withheld the name of police officer who directed him to leave accused (since
deceased) Krishan at Jail however, he has admitted that he was directed by some officer
. :o do so. As per records accused was left at jail at 5.34 PM on that day. The version of
-constable Virender of Police Station, Sector-5, Gurgabn to the effect that he arrested the
accused from the Court complex is also not believable and seems to be manipulated one
and mere paper formalities regarding memo of arrest and jamatalashi were performed It
is worthwhile to mention here that what necessitated constable Virender to take the
accused firstly to the seat of his counsel who himself surrendered before constable, the
(~·) accused might have managed his counsel and surety himself if he has surendered in a
~ planned ma._~R;; and moreover it was the la~! duty of the Arresting Offi~r const!l>Jy
Virenc-~~efl!ei accused and produce htm before the court concerned ~itl!iy
after c5.~-h\:iri'ed oaper work. Further jamatalashi memo do not contain any ~very,"'f u _\l\
•"' PHi:fc,chand1gaA, _,,..:\
"'•~• '<'!·\ ,t"I•
.,, ,,I.
,(()"-' '\
J .-<\•·"'""' 1~,--
---· ;!~~JR~~Oll,_,
~· '.'53
-'.'!!ifiF'
'Jfll' ',
==: ': - 50 - Magisterial Inquiry in case of custodial death of Krishan @ Kanwaria
~ ~
· ,. i -14-
•.J a. I ·
; how!ver, PMR report says about the recovery of Rs.138/~ and yellow coloured metallic
pendent which also falsifies.the version of constable Vrrender who seems to be working
under the !pressure of his senior officers. The accused was continuously in custody since
his arrest and the articles as shown in PMR were on his person since his arrest whereas
the search by Arresting Officer.and by the concerned jail officials shows otherwise.
The Case file titled as State vs. Krishan be~ng criminal case no.355 of
21.4.2008 arising out of FIR No.75 dated 12.3.2008 under sections 324/506 IPC of
police station sector-5, Gurgaon , was produced by the Ahlmad of the Court and perusal
of which reveal that Shri Sukhbir Singh, the then Councillor MC Gurgaon has issued
identification certificate to the surety/wife of accused (since deceased) Krishan which is
handwritten and contains his seal and signature which clearly shows the acquintance
with the family of deceased and also knowledge about the case. Case file further reveal
that in this case accused (since deceased) krishan @Kanwaria was on bail and last order
of bail is !from 5.8.09 to 11.2.2010 i.e., the next date fixed. Admittedly the accused
(since deceased) Krishan@ Kanwaria son of Ram Parshad r/o 8 Biswa, Gurgaon Gaon
was arrested on 11.1.2010 as per the version of constable Virender,of PS Sector-5,
Gurgaon and as per records the accused was on bail in the present case and was due to
appear on 11.2.2010 but in what circumstances his bail was cancelled and consequently
warrants of arrest were issued is not clear but it clearly shows negligence/collusion.
Copies of certificate issued by above MC Sukhbir Kataria is mark-3 and

bail orders are mark-4 and mark-5 and order regarding cancellation of bail and talcing
accused into custody is mark-6 respectively. ,
..
' The version of Om Parkash, brother of deceased that he made various
complaints against Sukhbir Singh, Minister in Haryana Government and resident of their
village regarding bogus votes and preparation of bogus ration cards of which matter was
under investigation in Police Station, City, Gurgaon and even information on demand
was also not provided by the Administration regarding votes and that threat were·also
given to him and his property and even construction of his house situated at Rajiv
Nagar, Gurgaon was got stopped by said Minister by moving application in this regard
from his own and the motive was to cause trouble and put pressure upon them by the
said Minister with the collusion of higher police officials and other officers of the
District and pressure upon the doctors of Civil hospital, Gurgaon who con.ducted post
mortem examination on the dead body on 13.1.2010 instead of 12.1.2010 on the day
when the dead body was with them.
The role of doctors that of jail, General Hospital Gurgaon !md other officials
of Jail and Police Officers/officials at every stage in this matter is full of suspicion.
~ i The death of accused Krishan @ Kanwaria son of Ram Parshad who :was
hale - ~ ~5'per the statements of witnesses and even at the ~ ~ s t
iiJ~
menti ' ' ~~,l.l;•does
PHllc,chand,gam
not seems to be in ordinary/natural course but has bee~sed \ \-in \\
-=«• i • ,•M\•1<>' l
- ----- - ·-- --·- - ----~I~G~oti~ {

J4
Magisterial Inquiry in case of custodial death ofKrishan @K.anwaria
-14-
however, PMR report says about the recovery of Rs.138/- and yellow coloured metallic
pendent which also falsifies the version of constable Virender who seems to be working
under the pressure of his senior officers. The accused was continuously in custody since
his arrest and the articles as shown in PMR were on his person since his arrest whereas
the search by Arresting Officer and by the concerned jail officials shows otherwise.
The Case file titled as State vs. Krishan be~ng·criminal case no.355 of
21.4.2008 arising out of FIR No.75 dated 12.3.2008 under sections 324/506 IPC of
police station sector-5, Gurgaon, was produced by the Ahlmad of the Court and perusal
of which reveal that Shri Sukhbir Singh, the then Councillor MC Gurgaon has issued
identification certificate to the surety/wife of accused (since deceased) Krishan which is
handwritten and contains his seal and signature which clearly shows the acquintance
with the family of deceased and also knowledge about the case. Case file further reveal
that in this case accused (since deceased) krishan@Kanwaria was on bail and last order
of bail is from 5.8.09 to 11.2.2010 i.e., the next date fixed. Admittedly the accused
(since deceased) Krishan@ Kanwaria son of Ram Parshad r/o 8 Biswa, Gurgaon Gaon
was arrested on 11.1.2010 as per the version of constable Virender of PS Sector-5,
Gurgaon and as per records the accused was on bail in the present case and was due to
... appear on l l .2.2010 but in what circumstances his bail was cancelled and consequently
warrants of arrest were issued is not clear but it clearly shows negligence/collusion.
Copies of certificate issued by above MC Sukhbir Kataria is mark-3 and

bail orders are mark-4 and mark-5 and order regarding cancellation of bail and taking
accused into custody is mark-6 respectively.
The version of Om Parkash, brother of deceased that he made various

complaints against Sukhbir Singh, Minister in Haryana Government and resident of their
village regarding bogus votes and preparation of bogus ration cards of which matter was
under investigation in Police Station, City, Gurgaon and even information on demand
was also not provided by the Administration regarding votes and that threat were· also
given to him and his property and' even construction of his house situated at Rajiv
Nagar, Gurgaon was got stopped by said Minister by moving application in this regard
from his own and the motive was to cause trouble and put pressure upon them by the
said Minister with the collusion of higher police officials and other officers of the
District and pressure upon the doctors of Civil hospital, Gurgaon who conducted post
mortem examination on the dead body on 13.1.2010 instead of 12.1.2010 on the day
when the dead body was with them.
The role of doctors that of jail, General Hospital Gurgaon and other officials
of Jail i P ~ e Officers/officials at every stage in this matter is full of suspicion.
A 2013.10.07 11:59
,n TTlts7 True Scanned
.r. ll.f~ c,KOF t1:!f • •
~ ~ili['-~".M.l'r,!l#;i of accused Krishan @ Kanwana son of Ram Parshad who was
,u~Ie. a.i~,~~iearty as per the statements of witnesses and even at the time of arrest
's~\\~'eh~i?n~;~?ove does not seems to be in ordinary/natural course but has been caused in
e:r•
•> I \ '
. ,..
',._.,,-
?'.,i:,,;, , -52-
ilj• 1/ Magisterial Inquiry in case of custodial death ofKrishan@Kanwaria
__,.
~11 ·' tlL 1
- -15-
- : ' ~cious circumstances as is apparent from the facts/circumstances mentioned above

--aisible from the photographs marked as mark-7 to rnark-21 which are attested by the
official photographer of police department.
Report is submitted accordingly with the opinion that the matter needs
thorough investigation from' some independent/impartial agency as there seems to be
indulgenbe of senior political boss, superior police officers, jail authorities, doctors and
oers.i
th ' ••
Submitted please
t1,i,i~
(Mukesh Rao)
Civil Judge (Jr.Divn)-cum-
Gurgaon.
f<./lf/ JI
Note This inquiry report contain fifteen pages and all the •
pages are signed by me.
~
(Mukesh Rao)
Civil Judge (Jr.Divn}-cum-
Judicial Magistrate Ist Class,
Gurgaon .
Rashmi
2013.10.. 07 11:59
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• CopyOfthe
Original
• PHHC,Chandigarh
.~-w
Through Special Messenger : if_~
• -· -274- '. ,.
.. 1 .-
..,l-'.
.
' .. r-~ 3( .
' ,.:
..:·\• ~
The Superintendent of Prisons,
District Prison, Gurgaon.
To,
The Senior Superintendent of Police,

{Custodial Death Cell),
National Human Rights Commission,
Faridkot House, Copernicus Marg,
New Delhi.
Subject: Forwarding the Magisterial Inquiry/ Inquest Report of decease,i;

Krishan@ Kawaria S/o Ram Prashad. Expired on 12-01-2010 at
G.H. Gurgaon. 1
Kindly refer to your Case No. 181/7/5/2010-AD/UC/M-5 on thr,,

subject cited above.
Please find enclosed herewith the Magisteri3J lnquiry/lnque,Jr:

Report of deceased Krishan@ Kawaria S/o Ram Prashad who ,vas expired. 01,r
l 2-01--2010 at G.H. Gurgaon. This is for kind perusal to the Hon'b';,
Commission please. ' ii
Encl : As above.
~
Superintendent of Prisons
"T=t,. ~ ~t f,,(.f?s; Dijict Priso)k Gurgaon
Endst. No. -5,J{,/)- 63 , Dated
Copy of the above is forwarded to the followings for information an.t:'

necessary action please: - , ;.
':
'~
'
1
1. The Director General of Prisons, Haryana, Bavs No. 3-cJ. Sector· 14;
Panchkula.
2. The District Magistrate, Gurgaon.
_$,
Supcrintendenr cf Prisons
District Pr)1on Gargaon
& . (!/,
~fl~~ 'fld foil. ~ r •
V
Rashmi
2013.10.07 11:59
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Original
PHHC,Chandigarh
-69-
37 Annexure P-f
From:
Parvesh Katona w/o Krishon Kumar (DJ
r/o 8 Biswo, House No. 182, Gurgoon Village, Gurgaon.
To
The Hon'ble Governor,
State of Haryono,
Chandigarh l6000J
Through,
l. Hon'ble The Chief Justice
The Punjab ond Haryana High Court,
Chandigarh 160001
2. Hon'ble The Chief Minister,
Stole of Horyona.
Chandigarh l 6000 l.
l. I. Parvesh Katario _w/o late Krishon Kumar r/o 8 Biswo. village Gurgoon,
Gurgoon hove been provided legal aid by Hon'ble Sessions Court,
Gurgaon. ond wos directed to file complaint through legal aid counsel in
lhe case of custodial death of my late husband vide Orders passed by
Hon'ble Court on 3-6-201 l and J0-6-2011 in Crim. Misc. Application
___J201 l titled Parvesh Katona vs. Unknown.
2. On 5-8-2009 I had gone to the court of Sh. Pawan Kumar. learned JMIC,
Gurgoon with my late husband Krishan Kumar s/o Ram Porshad in criminal
case no. 355 of 21-4-2008 FIR No. 75/ 08 u/s 324/ 506 IPC P.S. Seclor 5.
Gurgaon. On that date we were told the date by our Advocate Sh. R.S .
Rashmi ~c,;r,; I
2013.10.lJJ"i't:'59
munshi as 2/l l or 9/l l. which i hove now been informed offer
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Ori inal
PHaC,Chandigarh
.,_,..,,
-70-
Y checking of documents was actually 11 /2 or 11/2/2010 and not 2/11/2009
or 9/11/2009 as we hod incorrectly inferred.
3. On 2-11-2009 my husband went to the Gurgaon District Court but it turned
out lo be o holiday. My husband went 2 or 3 times in November 2009 to
the Court bu! nobody would tell him the dote of hearing; our advocate Sh.
R.S. Saini wanted more money. but we hod already poid him Rs. 1200/- We
were unable lo find out the next date of hearing. In December 2009 police
Constable No. 719 Virender Singh of P.S. Sector 5, Gurgaon came to my
house, in presence of my husband, ond said tho! my husband had jumped
bail ond did not appear in the court so he has lo appear in the court with
surety on 1l.01.2010, and the eartier surety is cancelled. He did nol have
any papers and we were not asked to sign any paper, nor were we given
any papers.
4. On l l.0l.2010 I went to the court with my husband. We still had not been
given any papers. We went to the table of Advocate R.S. Saini bul he was not
there so we sat of the fable of one advocate Ajit, who sits nearby to Advocate
R.S. Saini. We were waifing lo arrange surety, but before Advocate R.S. Saini
could arrive, Constable No. 719 Yirender Singh of P.S. Sector 5, Gurgaon come
there, a few minutes later, and asked us bolh to sign on a hall sheel of paper
(with no prin1ed or other matter in Hindi) hand written in English, which I do not
read. I asked him what is wri1ten on !his English paper. He said it says my
husband had jumped bail and did not appear in the court so he hos to appear
in the court with surety on 11.01.2010. and the earlier surety is cancelled. He still
did not leave any paper with me. He told us to come to the court and we went
with him. Later on / learnt that eartier, in the morning. he had gone to my house
to execute the warrant and been fold by my relative/ neighbour that we hove
already gone to the court.
5. At about 10.30 AM. Constable Virender Singh had token us away from table
of advocate Ajit to the table of the court staff, o foll person, whom I recognize,
~ncl'o'a'l"i9\,10ld by the court staff who is a toll person [Noib Court Jagdish) and
True Scanned
•JlfiiL ';:;f,,Y Of the
mzl l > i i ~ - Yirender Singh that the judge has ordered tho! your husband hos to
'""""'
-71-
,; go lo jail and that I should go home. I did as I was told by Constable Virender.
My husband had some money on him at the time and I gave him some more
money. I heard Constable Virender Singh tell the court staff (Noib Court
Jogdish) that he is going home and to take over the custody mailer of my
husband. Constable Virender Singh, who is from my village, said that since he is
going home he could drop me home, but for some reason I refused, as I did not
feel comfortable going with him. My husband had been to jail once eartier from
19.03.2008 to 28.07.2008 and had come back soon after getting bail so I was not
worried. I thought he will be out of jail soon after bail is arranged. We were not
asked anything by the judge at any stage or asked to sign any papers in
presence of the judge. We were not given any lime lo meet our advocate to
arrange bail. I !hen left the court and do not know who! happened aflerwords .
• 6. Al about 11 A.M. on 12.01.2010 one constable from P.S. Sector 5, Gurgoon
come to my house and informed me tho! my husband is admitted in Civil
Hospital. Gurgaon and went away. I went to the hospital but was surprised to
find his dead body, and informed my relatives about 11 .45A.M. When they
came they sent me home. Sh Mukesh Rao. learned JMIC Gurgaon, called me
bock and I returned to the Civil Hospital at about 2.00 P.M. Sh Mukesh Rao,
learned JMIC Gurgaon inspected !he body and found marks of beating on the
back of my husband's body, I was asked by him if these were old marks and I
said that his back was clear of any such bruise marks on the morning of
11.01.2010 before he was token away into custody. I was not asked any other
question and I was once again sent bock home by my relatives.
7. I hove been provided the services of Sh Ved Pal Yadav, advocate on !he
panel of Disfricf legal Services Authority. by this Hon'ble Court to assist me in
resolution of !he matter of custodial death of my husband. Some feels hove
now emerged about some alleged illegal boil cancellation and forfeiture orders
on 29.09.2009, alleged illegal arrest at about 10.30 AM. on 11.01.2010 by police
liide the court premi.ses where accused hod already come lo obtain bail and
I
Rill.·
2013.10.07 11:59
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~- .,,
~'sf ~'litina
PHHC,Chandigam'
near the table of his advocate who had ye! not arrived, alleged
-72-
4o
" illegal 14 day remand request of P.S. Sector 5 Gurgaon, if any available on the
record, on 11.01.2010, alleged illegal order of Sh Pawan Kumar, learned JMIC
Gurgaon to take in custody and send to judicial custody for 14 days and
alleged filegal 14 day remand order No. 244/i O issued by Sh Pawan Kumar,
learned JMIC Gurgaon on 11.01.2010. at about 10.30 A.M. an 11.01.2010.
8. I have received a copy of inquiry report of magistrate u/s 17 6 CrPC under RT!
on 22.04.2011. At this stage of the matter motive has been attributed by inquiry
magistrate against same influential persons and custodial death of my husband
appears to be a conspiracy in which my husband was perhaps made a pawn
in some alleged electoral fraud matter being pursued by his brother and other
concerned citizens, in which my husband had no direct hand. However the
alleged grave illegalities in arrest followed by alleged illegal remand into 14
days judicial custody in alleged violation of Section 344 LP.C. and Apex Court
judgement in Joginder Kumar v. State of U.P. 1994 sec (4) 260 appeor lo
establish that some of the orders of the ilaqa magistrate dated 19.03.2008,
02.04.2008, 30.04.2008, 09,07.2008, 05.08,2008, 24.01.2009, 01.05.2009. 05.05.2009,
14.05.2009, 06.07.2009. 05,08,2009. 12.08.2009. 02.09.2009, 29.09.2009 &
I I .01.20 Io and some remand requests of police and some remand orders of
ilaqa magistrate violate the Apex Court judgement in Joginder Kumar v. State
of U.P. 1994SCC (4) 260.
9. Replies have been received to RT! requests made to PIO, Sessions Court.
Gurgaon on 08.04.2011 & 21.04.2011 and to Commissioner Police, Gurgaon on
02.05.2011 & 13.05.2011. Replies to RT! requests made to Jail Superintendent,
Bhondsi on 04.06.2011, ta Pubric Information Officer. Punjab & Horyana High
Court on 08.06.2011 and to PIO, Sessions Court, Gurgoon on 10.06.2011 ore
awaited. (Copies of the five RT! replies received and of the three RTI requests
pending are annexed). The information provided clearly establishes offences
under Sections 302, 304, 344, 193, 197, 201 & 220 IPC read with Sections 34, 35,
R3~;37, 38, 39, 109, 120-B. 177, 191 & 192 IPC and Rule 18.44 of Punjob Police
2013.10.07 11:59
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•
Jl.l\!L 6-t• 1934.
~ PHHC,Chand!garh
Volume II (as applicable in Haryana State, Reprint Edition 2008
-~"''"''
-73-
.,,-, 4(
" amended upto 31.03.2008) read with Section 96 14) of the Haryana Police Act,
2007 (Act 25 of 2008). Private Complaint has been made with P.S. Bhondsi on
23.04.2011. (Copy annexed). Media reported the matter on 30.04.2011 &
0l.05.20i l. (Copy annexed).
l 0. It is mandated under Section 51 of The Haryana Police Act. 2007 (Act 25 of
2008) that "Every police officer shall be considered ta be always on duty and
may at any time be deployed in any part of the State or outside the State."
Hence the delay in recording of statement by Sh Mukesh Rao, learned JMIC
Gurgaon on 25.03.2011 of Accused No. l is unacceptable and seems designed
to defeat the ends of justice. never mind that in the end blame hos been
alleged and conspiracy has been alleged by Sh Mukesh Rao, learned JMIC
Gurgaon.
l I. Firstly as early as 28.05.2011 Sh Mukesh Rao, learned JMIC Gurgaon was fully
aware that deceased was beaten and Jhen taken to jail by a single policeman
in blatant violation of Rule 18.44 of Punjab Police Rules. 1934, Volume II (as
applicable in Haryana State, Reprint Edition 2008 amended upto 31.03.2008)
read with Section 96 (4) of the Horyana Police Act. 2007 {Act 25 of 2008), which
requires a minimum escort of two constables.
12. Secondly Sh Mukesh Rao, learned JMIC Gurgaon was also aware that it was
highly unusual that a policeman (rather than escort guard or two policemen of
P.S. Sector 5 Gurgaon concerned in the case) of P.S. City Gurgaon should have
committed deceased to jail on l 1.01.2010- being so aware the obvious action
of calling for statement of S.H.O. P.S. City Gurgaon being omitted raises more
than sufficient implicalion that Sh Mukesh Rao, learned JM!C Gurgoon shielded
unknown persons by not so calling the concerned S.H.O. for statement on
28.05.2010 till today .
RIJ.mehirdly Sh Mukesh Rao, learned JMIC Gurgaon was also aware, or should
2013.10.07 11:59
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•
)Jilli. ~~"lhquired and been aware that deceased was taken lo jail by a single
~ PHHC,Chand1garh
-74-
policeman who was not on duty roster for the day between 10.30 AM. and 5.35
P.M.on11.01.2010.
14. It is this fatal omission coupled with the fatal delay from 28.05.2010 in calling
for statement of Angrei Singh, Constable No. 3134/Gurgaon till finally coiled on
25.03.2011 that establishes a sinister plot to save the real culprits, alleged
Haryana Ministers and others las alleged by Sh Mukesh Rao. learned JMIC
Gurgaon himself).
15. The said delay appears to be highly deliberate and planned so os to provide
the so called escape route to Angrej Singh, Constable No. 3134/Gurgoon to be
able to poss on the blame to a superior, whose name he was enobled to
conveniently forget, by !aches of inquiry magistrate in not calling S.H.O. P.S. City
- I Gurgaon al all and delaying recording of the statement of Angrej Singh,
Constable No. 3134/Gurgoon.
16. If Angrej Singh. Constable No. 3134/Gurgaon is found to be off duty, he.
alongwith Naib Court Jogdish, deserves to be charged under Section 3021.P.C.
and to go to the gallows in line with the Apex Court rulings on custodial death,
unless they come out wilh cogent defence. If, an the other hand, on account
of !aches of Sh Mukesh Rao, learned JMIC Gurgaon, he is deemed to be on
duty under Section 51 of The Haryona Police Act, 2007 {Act 25 of 2008), then
Angrej Singh, Constable No. 3134/Gurgaon alongwith Sh Mukesh Rao, learned
JMIC Gurgaon, all on duty staff of P.S. City, P.S. Sector 5 & P.S. Bhondsi,
Gurgoan, Bhondsi Jail, Escort Guard of Sessions Court, Gurgaon. Civil Hospital
Gurgaon, Naib Court Jagdish, Ahlmad concerned, Sh Pawan Kumar, learned
JMIC Gurgaon, Registrar General of the Punjab & Haryana High Court, Haryana
Ministers Sukhbir Katario and Gopal Kanda residing in Gurgaon and other
influential persons as implicated by inquiry magistrate shall become port of a
conspiracy in this case - in accord with Apex Court rulings on custodial death
they all would need to be charged under Section 302 1.P .C. and to go to the
R-1Iows in line with the Apex Court rulings on custodial death, unless they come
2iffi'io.07 11: 59
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• 11 , Copy Of the
Onginal
• PHHC,Chandigarh
"""'"
-75-
...r
43
Y out with cogent defence. The excessive delay in viscera report which is yet ta
be received is also highly suspicious.
17. Sanction for prosecution under CrPC 197 is being sought. with right to amend
pleadings made herein upon receipt of relevant information sought by
applicant as mentioned in para 9 above.
Alleged Illegalities In the Court of Sh Pawon Kumar. learned JMIC Gurgaon in
criminal case no. 355 of 21.04.2008 AR No. 75/08 u/s 324/506 IPC P.S. Sector 5.
Gurgaon Slate of Haryana v. Krlshan (deceased)
18. Allegedly. no paper document was ever handed over to the accused or his
wife. who was also his surely, between 05.08.2009, previous date of hearing and
11.01.2010, date of incarceration, with which he could have approached any
advocate, other than Sh R.S. Saini. for providing surety at l 0.30 A.M. on
11.01.2010 upon the alleged cancellaHon of his bail bond valid from 05.08.2009
till next date of hearing fixed for 1J ,02.2010 in criminal case no. 355 of 21.04.2008
FIR No. 75/08 u/s 324/506 !PC P.S. Sector 5, Gurgaon. Sh R.S. Saini was not
available till l0.30 A.M. on 1J.01.2010.
19. Al about l0.30 A.M. on l l.0l.20l0, while waiting at a table of an advocate,

/
Ajil, for his advocate, Sh R.S. Saini, who hod not yet arrived, the accused was
made to sign some paper in English by constable No. 719 Virender Singh, that
neither he nor his wife understood, and were token away to the Court of Sh
Pawan Kumar. learned JMIC Gurgaon, and the wife of accused was summarily
informed by the court clerk/ constable No. 719 Virender Singh, that she should
go home, as the judge hos ordered that her husband be sent to jail. Execution
of arrest warrant against a deemed-lo-be- innocent-liU-proven-guilty accused,
inside the court premises by a police constable upon an accused already
wailing lo arrange boil at table of advocate, who was yet to arrive, as early as
<!UshW.30 A.M. on 11.01.2010 is against low of arrest, on unpardonable and

2013.10,0711:59
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•
~ 'ffi~,iJ?,t51.ble crime, and in addition is violative of the Apex Court's 4 principles
-76-
..r
':" of necessity of arrest laid down in Joginder Kumar v. Stole of U.P. 1994 SCC (4)
260. Earlier, in !he morning, he had gone to house of deceased accused lo
execute the warrant and was told by his relative/ neighbour thal deceased
accused and his wife (surely) have already gone to the court.
20. No papers were handed over lo the wife of !he accused wilh which she
could have approached any advocate. in !he absence of Sh R.S. Saini, who
had ye! not arrived. Allegedly, at no stage, was any inquiry directed by Sh
Pawan Kumar, learned JMIC Gurgaon directly to !he accused or his wife(surely)
regarding provision of surely, nor were they called into the accused box, at any
stage of the proceedings. This amounts lo cancellation of bail without notice or
hearing being given lo the accused or his surely which is patent violation of law
and of natural justice, well recognized in common law under the Constitution of
India.
21. Whereas order was of judicial custody, the accused was allegedly never
handed over to the Escort Guard of Dislrtct Court as per rule, by the arresting
police officer, Naib Court Jagdish or learned JMIC Gurgaon, in port responsible
for his subsequent beating by unknown persons leading lo his custodial death.
22. Whereas constable No. 719 Virender Singh hod allegedly stated !hat he
/ handed over accused lo Naib Court Jagdish for further handing over to Escort
Guard of District Court as per rule. ASI of Escort Guard has allegedly denied to
have been handed over the accused who had earlier been remanded lo 14
days judicial custody in allegl'!dly unexplained circumstances. whereas ii is
alleged that accused had regularly been appearing with his counsel at all the
dotes fixed by the Hon'ble Court since 28.07.2008. This has also been confirmed
from the record of the Court.
23. Allegedly, whereabouts of the deceased accused are not established
~tfflll?il~ri,JP.30 A.M., when his wife was sent home by constable No. 719
g True scanned
Copy Of the
Original
"""= PHHC,Chandigarh
-77-
Virender Singh of P.S. Sector 5. Gurgaon, till about 5.35 P.M. on 11.01.2010 when
he WOS admitted by Bhondsi Jail as UTP.
24. Allegedly, Constable No. 3134 Angrej Singh of P.S. City, Gurgaon, who had
no locus, not being authorised by S.H.O. P.S. Sector 5, Gurgaoni Naib Court
Jagdish / the Escort Guard of the District Court, being off duty, and in absence
of second constable mandatory for any escort, under Rule 18.44, allegedly
illegally deposited the accused deceased in Bhondsi Jail at about 5.34 P.M. on
11.01.2010.
25. Allegedly the Apex Court's 4 principles of necessity of arrest laid down in
Joginder Kumar v. State of U.P. 1994 sec 14) 260, also, seem to have been
breached by the remanding police officers as also the learned JMIC Gurgaon.
Common Law and the Constitution of lndla
References:
1. Constitution of India, 1950,
2. [Sources of English Constitutional History, A SELECTION Of DOCUMENTS
FROM A.D, 600 TO THE PRESENT, Copyright, 1937, HARPER'S HISTORICAL
SERIES, Under the Editorship of GUY STANTON FORD. EDITED AND
TRANSLATED BY CARL STEPHENSON ANO FREDERICK GEORGE MARCHAM,
Cornell University, HARPER & ROW, PUBLISHERS New York. Evanston, and
London, by Harper & Row Publishers Incorporated. Printed In the United
Stoles of America, To the memory al CHARLES HENRY HULLJ
25. English law is divided into three parts: common law, statute law, and custom.
Common law is so called because of its having been laid down by the
Commons or House of Commons in what is now the Cammowealth, first set up
in the reign of Henry VIII by the Statute of Proclamations (1539) !Page 316) .
~ffi</fls!aw based criminal justice system is traceable lo the Charter to the

True Scanned
•ltf~ Copy Of the
~ ~~Jrn;J!g,,Company 11601) !Page 401), and is being followed in India since
-78-
_.,
V about 1860. Common low has its eorty hisforicol moorings in the Dooms and
Charters of fhe Anglo-Saxon period (600 A.D. lo 1066 A.D.) (Pages 1-31) and is
recognised under Articles 135, 154 and 375 of the Constitufion of India. wherein:
"we, the people of India"
have put the Constitution above all other authorities, the Executive. the
Legislature and the Judiciary. and there ii should remain.
26. The Dooms of lne (A.D. 688-95) (Page 6) recognised that the criminal justice
system had been perverted and sought lo ensure that 'Just lows and just royal
dooms should be estabfished and assured to all our people, and so that no
alderman or subject of ours should henceforth pervert these our dooms ...". The
origins of the House of commons fie in the Magna Carta (A.D. 1215) (Page 115),
• which mandated
"39. No freeman shall be captured or imprisoned or dlsselsed or outlawed
or exiled In any way destroyed, nor will we go against him or send
against him, except by the lawful Judgement of his peers or by the law of
the land ....
54. No one shall be seized or Imprisoned on the appeal of a woman for
the death of any one but her husband."
In the eight-and-twentieth year of the reign of King Edward Ill (1354) it was
declared and enacted by authority of parliament that
"no man, of what estate or condition that he be, should be put out of his
land or tenements, nor taken. nor Imprisoned, nor disherlled, nor put to
death, without being brought lo answer by due process of law.. " (Page
451}
This protection of common law from imprisonment or death was subsequently
re-iterated in the Petition of Right (1628) (Page 450) and also in the Bill of Rights
( 1689). (Page 599)
2,lh,;/atuJe
20 3.10.07 1 :59
of 7 Ric.hard II, For fhe Improvement of Jusfice (1384) (Page 242)
True Scanned
•)lfill, Copy Of thr: ,
~'J;l1/!~h\/J.l;,~,,·great d1sherison of people had been caused in times past, and
,,.,,.,.,,
-79-
,.,
, might yet be caused, through false entry of pleas. erasure of rolls and alteration
of verdicts, ii was agreed and established that any one, whether judge or clerk,
properly convicted before the king and his council.. .. of an offence of this sort ...
should be punished by fine and redemption at the king's pleasure and should
satisfy the party (defrauded] .." Act Concerning Justices of the Peace (1489)
(Page 299) mandates "by lhe negligence and misdemeaning, favour, and other
inordinate causes of the justices of the peace ... chargeth and commandeth all
the justices of the peace ... to endeavour them to execute ... the said laws and
ordinances ... the pains that be ordained if they do the contrary..... And over this,
he chargeth and commandeth all manner of men, as well the poor as the rich ..
that is hurt or grieved in anything that the said justice of peace may hear or
determine or execute .in any wise. that he [who is] so grieved make his
complaint fo the jusfice of peace that next dwelleth unto him, or to any of his
fellows .... And if he then have no remedy, ...justices of assizes ... And if he then
hove no remedy, ... then he so grieved [may] come to the king's highness,
.... whereupon, if he find.any of them in default of executing of his laws in these
premises according to this his high commandment. he shall do him so offending
to be put out of the commission, and further fa be punished according to his
demerits." Hence common law recognises the liability of a judge or clerk of a
court for the wrong done through false entry etc and provides for punishment
according to his demerits.
28. Charter to the East India Company (1601) (Page 401) mandates " .. .that it
shall and may be lawful to and for fhe said governor and company ... fo hold
court for the said company and the affairs thereof; and that also it shall and
may be lawful to and for them ... to make, ordain, and con~stitute such and so
many reasonable laws ... as to them ... shall seem necessary and corwenient for
the good government of the some company..." The common law of England
was later extended to all of India by about 1860 .
:gr,'.'j\;gi(jU,1-'stice Coke, upon the question referred to Jomes I fhot ecclesiastical

True Scanned
•.J.U.l£. Copy Of the
~ ~,~!;li;e being unjustly interfered with through writs of prohibition. in 1607,
-80-
held "To which it was answered by me, in the presence and with the clear
consent of all the judges of England and barons of the exchequer, that !he king
in his own person cannot adjudge any case, either criminal ... or betwixt party
and party ...; but 1his ought to be determined and adjudged in some court of
justice according to the law and custom of England.... Then the king said that
he thought the law was founded upon reason, and that he and others had
reason as well as the judges. To which it was answered by me that true ii was
that God had endowed his majesty with excellent science and great
endowments of nature; but his majesty was not learned in the laws of his realm
of England, and causes which concern the life or inheritance or goods or
fortunes of his subjects are no! to be decided by natural reason, but by the
artificial reason and judgment of law - which law is an act which requires long
study and experience, before that a man can attain lo the cognizance of it -
and that !he law was the golden metwand and measure to try !he causes of
the subjects, and which protected his majesty in safety and peace. With which
the king was greatly offended, and said that then he should be under the law -
which was treason to affirm, as he said. To whom I said that Brocton saith quod
rex non debet esse sub homine, sed sub Deo et Jege. (That the king ought not to
be under man, but under God and the law.) (Page 437} Chief Justice Sir Edward
Coke, upon the question of royal proclama1ions, in 1610, held as foliows, "II was
resolved by the 1wo chief justices, chief baron, and Baron Altham, upon
conference be1wixt the lords of the privy council and them, that the king by his
proclamation cannot creole any offence which was not an offence before; for
then he may alter the law of !he land by his proclamation in a high point. For, if
he may create an offence where none is, upon that ensues fine and
imprisonment. Also the law of England is divided into three parts: common low,
statute law, and custom. But the king's proclamation is none of them .... Aiso it
was resolved that the king hath no prerogative but that which the law of the
land allows him." (Page 441] This disputed position of the king ultimately led to
the Council Proceedings against Sir Edward Coke in 1616. (Page 443) By 1649
~ i<i'l<@Cution of Chartes I the supreme position of law above all was fully
True Scanned
•U.f~ copy Of the
~~s~&l,in Great Britain. (Page 516}
-81-
g-5
30. Petition of Righi {1628) to Charles I: "And where also, by the statute called
the Great Charter of the Liberties of England (l 215), it is declared and enacted
that no freeman may be taken or implisoned, or be disseised of his freehold or
liberties or his free customs, or be outlawed or exiled or in any manner
destroyed, but by the lawful judgment of his peers or by the law of the land;
and in the eight-and-twentieth year of the reign of King Edward Ill (1354) it was
declared and enacted by authority of parliament that no man, of what estate
or condition that he be, should be put out of his land or tenements, nor taken,
nor imprisoned, nor disherited, nor put to death, without being brought lo
answer by due process of law: nevertheless, against the tenor of the said
statutes and other the good laws and statutes of your realm to that end
provided, divers of your subjects have of late been imprisoned without any
cause showed; and when for their deliverance they were brought before your
justices by your majesty's writs of habeas corpus, there to undergo and receive
as the court should order, and their keepers commanded to certify the causes
of their detainer, no cause was certified ..ond yet were returned back to several
prisons, without being charged with anything to which they might make answer
according to /he law." (Page 450/ Refusal of Charles I to accede to the
Commons Petition of Righi led to a 21 years struggle for power which
culminated in the House of Commons erecting a High Court of Justice on
06.0 l.l 649 to try Charles I who was sentenced to death 21 days later, on
27.01.1649 for the charge, amongst others, that he, having been "trusted with a
limited power to govern by and according to the law of the land and not
otheiwise ... , nevertheless, out of a wicked design to erect and uphold in
himself on unlimited and tyrannical power to rule according lo his will and to
overthrow the rights and liberties of the people ... "(Page 518)
31. In Indio, the common law of England prevails in the field of criminal
jurisprudence fill today, with some modifications as mode by the Constitution of
11mq0i11, \ iBP, post independence criminol legislotion, and by Article 14 l law laid
1lf
Jh1i;,
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Copy Of the
~<1ffl\,,!;/,l(9,l);ie Apex Court from time to lime. In India the Constitution is supremo
-82-
.,
IJr'
lex. A table showing alleged illegalities in arrest and custody of deceased
Krishan from 12.03.2008 to 11.01.2010 and alleged liability of judicial officers
follows:
P.T.O.
Rashmi
2013.10.0711:59
• True Scanned
.' Copy Of the
Original
~.....,,,.,, PHHC,Chandlgarh
-83-
-83-
i::r
j ~ASLE OF ALLEGED ILLEGALITIES IN THE COURT OF LEARNED JMIC GllRGAON IN CASE 335 OF 2008, F.!.R. 75 OF 12.03.2008, P.S, SECTOR 5 GURGAON:
Sr.
No,
Las! Actton/ Order OrderI Action Date of last
Qctlon/
Dale
Order/
ol Remarks Complete
Certified
Certified
Record
order A.ctton Record dt di
02.06.11 02.05.11
99 Pages 4 Pages
Blank undo1ed bul signed 14 Blank unda1ed bu1 signed 14 19-Mar- Blank signed remand documenls, 32 to 33
days remand paper of '7hono days remand paper of '7hana 2008 which can be used at will in any
Old Gurgaon" Old Gurgaon" [P.S. Sector 5 nan-bailable case regardless of
Gurgaon) necessity of arrest, in court file poln1
to rampant racketeering In boil
~ bonds, making i1 difficult even to get
boil in non-bailable offences. This ;,
• blatant violation ot necessity of
arrest principle for non-bailable
coses as laid down by Apex Court in
\" Joginder Kumar v. State of U,P. 1994
sec [4) 260 and ompfilied by the
Rashml
2.013.10,0711:59
True Scanned
•
5°~¥ri~f
.fil'&_ the
~ PHHC,Chandlgarh
-84-
...
,..,
Apex Cour! in Rosiklol v. !<!shore
~
arising out of SU' Cr 4006 of 2008
decided on 20.02.2009 and in
Appeal No. 2271 Of 2010 jArislng out
of Slf' (Crl.) No.7615 of 2009)
Siddharom So1Hngoppa Mhelre v
S1ote of Mohoroshtra decided on
~
02.12.20!0.
vi
• 2 FIR 75/08 PS Sector 5 Gvrgoon FIR Signed in non-bailable 12-Mm- !9•Mar- One week dekly ln remand papers. 10 lo 12
u/s 324/506 !PC offence seeking 14 doys 2008 2008 Sent lo judicial cVSfody in non•
Judicial custody ;n boilob!e cose ln mechonlcol roshion

"°'"
bailable offence ,n for l 4 days b) Sh Pawan Kumar.
mechanical fashion wilhovt JMIC Gurgoon.
glvl!"lg cogent reosoru. a,
no,om
wn.lo.07!!>9
r.wSca"<•O
•
Jtlli;. g~•fn~'"•
~ P~it:•°'"'""'"'
-85-
-85-
r'
manda1ed by Apex Court
S4
why cus1ody is needed. P994
sec 14) 260)
3 FIR Signed in bailable oftence "Accused produced betore 19-Mar- 19-Mar- In certain non-bailable offences, bail 3410 35
me. Judicial remand sought. 2008 2008 is the norm, io« ~ the exception,
Pending invesiigofion. even to the ex1en1 of releasing
Accused be kepi in judicial accused on persona! bond, if need
~ custody and be produced on orlses In cases of Indigent accused.
V) 02.04.2008." Innocent \ill proven guilty applies
fully in such non-bailable cases.
• p994 sec 14) 260). Judicial remand
sought is upon a bogus and blonl<
pre-signed remand paper, beoling
no cose porticu{ars whatsoever.
Sashmi
I,.,.,. '"
2013.10.07 11:59
Trve Scarmed
Copy Of the
Crlg!rial
PHHC,Chandigarh
-86-
,. .
(
4 Accused produced before "Accused produced before 19-Mar- 2-Apr-2008 In such non-bailable offences, boil is 36 to 37
90
me. Judicial remand sought. me. Judicial remand sought. 2008 the norm, even on personal bond. if
Pending investigation. Pending investigation. need arises in coses of indigent
Accused be kept in judicial Accused be kept in judicial accused. No written police request
custody and be produced on custody and be produced on di 02.04.2008 for remand exists in the
02.04.2008. 16.04.2008." record. Order by Sh Powon Kumar,
JMIC Gurgoon violates necessity of
arrest principle laid d()wn by Apex

..__)-
Court in Joginder Kumar's case in
~
1994. [I 994 sec (4) 260]
5 FIR 75/19 .03.08 PS Sector 5 Remand paper for 14 days 19-Mor- l 6-Apr- SHO hos prepared remand papers in 13 to 14
• Gurgoon u/s 324/506 !PC judicial custody by SHO. PS 2008
Sector 5 Gurgoon as police
unable to complete
2008 mechanical fashion ignoring
necessity of arrest principle laid
down by Apex Court in Joginder
investigation but no reason Kumar's case in 1994. [1994 sec (4)
why custody is needed in 260]
such non-bailable offence
I
Rashmi
2013.10.07 11:59
True Scanned
Copy Of the
Onglna!
"""""' PHHC,Chandlgarh
-87-
r·
provided by police, as 9\
mandated by Apex Court
why custody is needed. [1994
sec f4) 2601
~ 6 Accused produced before "Accused produced before 2-Apr-2008 16-Apr- Produced before magistrate and 38 to 39
l,,
me. Judicial remand sought. me. Judicial remand sought. 2008 sent to judicial custody in non-
Pending investigation. Pending investigation . bailable case in mechanical fashion
Accused be kept in judicial Accused be kept in judicial for another 14 days having already
• custody and be produced on custody and be produced on
16.04.2008. 30.04.2008."
spent 28 days in prison. Order by Sh
Pawan Kumar, JMIC Gurgoon clea~y
violates necessity of arrest principle
laid down by Apex Court in Joginder
Kumar's case in 1994. [1994 sec (4)
260]
Rashml
I~.,,,,,.,.,
2013.10.07 11:59
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Copy Of the
Ori mal
PH~C,Chandlgarh
-88-
_,..,
7 Produced before magistrate Challen di 05.04.2008 16-Apr- 21-Apr- No medico-legal report of l7to25
qv
and sent to judicial custody in forwarded on 21.04.2008 2008 2008 authorised doctor. or any doctor. of
bailable case in mechanical any injury to complainant is found
fashion for another 14 days attached in challan. No case under
having already spent 28 days Section 324/506 I.P.C. is made out
in prison since no weapon of offence is
recovered or identified in absence
of medico~egal report.
sJ) 8 Chollan dt 05.04.2008 "Present APP for the State. 21-Apr- 21-Apr- No medico-legal report of 50 to 5!
¼ forwarded on 21.04.2008 Challen Present today. It be 2008 2008 authorised doctor, or any doctor, of
checked and registered. any injury to complainant is found
• Ah/mod is directed
attached the remand papers
and FIR etc. Now to come

to attached in challan. No case vnder
Section 324/506 I.P.C. is made ovt
since no weapon of offence is
upon 30.04.2008 i.e. the dole recovered or identified in absence
already fixed on Remand of medico-legal report. Case should
papers." have been dismissed or S.H.O./ 1.0.

Rashml
I
"""'"'
2013.10.07 11:59
True Scanned
g~ln~rthe
PH~C,Chandigarh
-89-
r, q)
should hove been summoned to
rectify the grove deficiency
apparent on the face of the chollon.
9 "Present APP for the State. Remand paper for 14 days 21-Apr- 30-Apr- Remand papers for being sent to 15 to 16
Challan Present today. It be judicial custody by SHO, PS 2008 2008 judicial custody in non-bailable case
r--
l__n checked and registered. Sector 5 Gurgoon as police in mechanical fashion for another 14
Ahlmad is directed to unable lo complete days having already spent 42 days in
attached the remand papers investigation prison. SHO hos prepared remand
•
and FIR etc. Now to come papers in mechanical fashion
upon 30.04.2008 i.e. the dole ignoring necessity of arrest principle
already fixed on Remand laid down by Apex Court in Jaginder
papers." Kumar's case in 1994.
Rashmi
I"'"'"'
2013.10.07 11:59
True Scanned
§~fcln~[ tne
PH~C,Chandigarh
-90-
.,,.....
10 Remond poper for 14 days "Presen1 APP for the State. 30-Apr- 30-Apr- Produced before Sh Pawan Kumar, 46 to 47
1r
judicial custody by SHO, PS Accused in custody. Krishon - 2008 2008 JMIC Gurgaon and sent 10 judicial
Sector 5 Gurgaon as police P. Copy of chollan supplied to custody in bailable case in
unable 10 complete the accused free of cost. Now • mechanical fashion for 1 year and 2
investigation case is adjourned to 14.05.09 weeks, blatantly violating 1994 sec

for consideration on charge. (4) 260. having already spent 56
Till then accused be kep1 in days in prison, whereas remand
judicial custody." papers are only for 14 days custody.

~ Nobody has ever pointed out this
<....,,i
glaring mistake even after this
mistake in part caused the custodial
• death of accused.
Rashm;
I
.,m,,.,,
2013.10.07 11:59
True Scanned
5°rfc'fn~r the
PH~C,Chandigarh
-91-
J"'/
'
11 FIR Signed in bailable offence "Present APP for the State. Shri 19-Mor- 11-Jun- Accused finally was able to arrange 60 to 61
9S
R.S. Saini. Counsel for the 2008 2008 o counsel which he could ill afford ot
accused Krishon Kanworia. An o cost of Rs 1200/-. Because Shli R.S.
application for boil moved on Saini moved boil application without
behalf of above named inspecting the file he never come lo
accused. Let notice of the know that o chollan falsely
same be given to the state for purporting to be received by
12.6.2008." accused under his signature on
30.04.2008 has been filed and further

<j-
~ he never came to know that challan
• was deficient of weapon recovery
• and of medico-legal report hence
Section 324/506 1.P.C. offences were
unsustainable. This led, in part, to
unfortunate 14 days custody, bail
cancellation and death of on
innocent accused.
Rashm;
I
,V/11<<,>
2013.10.07 11:59
True Scanned
Copy Of the
Orie inal
PH~C,Chandige.rh
-92-
-92-
.r-1 ~b
!2 "Present APP for the State. Shri "Present APP for the State. Shti 11-Jun- 14-Jun- Shri R.S. Saini, Advocate. never 62 to 63
R.S. Saini, Counsel for the R.S. Saini. Counsel for the 2008 2008 carried out file inspection which
accused Krishan Kanwaria, An accused. Reply to boil could have alerted him to ghost
oppficotion far bail moved on oppucation filed. Now case is proceedings -being corned out in
behalf of above named adjourned to 16.6.08 for isolation by APP, court and police
accused. Let nonce of the arguments on boil staff and Sh. Pawan Kumar, JMIC
some be given 10 tne state !Cl application. Ortginol file be Gurgaon, consequent to mistake of
12.6.2008" also put up on the dote fixed." one full year in next date cf hearing
0 in Order di 30.04.2008. RLE IS LOST.

~
Rashmi
2013.10.07 11:59
True Scanned
• th
lli1£. §~fcln~r e
~ PH~C,Chand;garn
-93-
J"/
13 "Present APP for the State. Shrt "Present Sh S.K. Deswal, APP 14-Jun- 16-Jun- Bail was granted by Ms. Ranjana 64 to 65
°tr
R.S. Saini, Counsel for the for the State. Shrt R.S. Saini, 2008 2008 Aggarwal, JMIC Gurgaon. FILE IS
accused. Reply lo bail Adv, for accused Krishan LOST.
application filed. Now case is Kanwaria. Papers put up
adjourned to 16,6.08 for before me being Duly
argumenls on bail Magistrate. Heard on the bail
application. Original file be application of accused
also put up on the date fixed." Krishan Kanwario. The
accused has been in cusfody

\..D
for a long time. No useful
purpose would be served by
• keeping the accused behind
the bars as a trial would take
a long time. Therefore, without
commenting anything on the
merits of the case, the
accused Krishan Kanwaria is

Rashml
2013.10.07 11:59
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• CopyOfthe
Orlglnal
• PHHC,Chand!garh
""''"''
-94-
-94-
;./ 9i
admi11ed to bail on his
furnishing bail bonds in the
sum of Rs 15,000/- with one
surety in the like amount.
Requisite bonds no! furnished.
File be pu1 up on the dole
fixed i,e, on 25.6,08 and be
sent back to the concerned
~
Court forthwith,"
"---P
Rashmi
2013.10.0711;59
True SciHmed
•
Jl.illi,
the g~yn~f
~ PHHC,Chand1garh
-95-
-,.,, 11
14 Present Sh S.K. Deswol, APP for Application of Nb Court 16-Jun- 9-Jul-2008 Just when bail is to be given the file is 68 to 69
the State. Shri R.S. Saini. Adv. Chander that file is not 2008 conveniently lost to extract money
for accused Krishon Konworio. traceable. from the hapless accused. FILE
Papers put up before me CONTINUED TO BE LOST TILL
being Duty Magistrate. Heard 28.07.2008.
on the boil application of
accused Krishan Konworio.
The accused ·hos been in
cf) custody for o long time. No

'\..£;
useful purpose would be
served by keeping the
• accused behind the bars as a
trial would take a long time.
Therefore. without
commenting anything on the
merits of the case. the
•g~used Krishan Konworia is

2013<10.07 11:59
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• CopyOfthe
Orlglna!
• ,..,,,..,, PHHC,Chandigarh
-96-
-96-
v✓ ) oO
admitted to baU on his
tumishing boil bonds in !he
sum of Rs 15,000/- wlth one
surely in the like amount
Requisite bonds not furnished.
File be put up on the dole
fixed i.e. on 25.6.08 and be

..::r- sent back to the concerned
\...o
Court forthwith.
Rashml
I""'""
2013.10.07 11:59
True Scanned
~Xn~{ the
PH~C,Chandlgarh
-97-
~,r \o r
l5 Application of Nb Court "Present APP for the State. 9-Jul-2008 9-Jul-2008 Case was not heard on date fixed 66 to 67
Chander that file is not Accused Krishan in custody. 25.06.2008 and Sh R.S. Saini was not
traceable. File not put up by the Ahlmod. informed till he on his own
Now Ahlmad is directed to approached the Court on
trace the file on 23.7.2008. Till 28.07.2008. FILE IS LOST.
then accused be kept in
judicial custody."
~ 16 Present APP for the State. "Present APP for the State. 9-Jul-2008 23-Jul-2008 Case was not heard on date fixed 70 to 71
"° Accused Krishan in custody. Accused produced
File not put up by the Ahlmod. me with the request of judicial

before 25.06.2008 and Sh R.S. Saini was not
informed till he on his own
Now Ahlmad is directed to remand. Accused be kept in approached the Court on
• trace the file on 23.7.2008. Till judicial custody till 5.8.08 and
then accused be kept in be produced on that date."
judicial custody.
28.07.2008. FILE
ADVOCATE IS NOT INFORMED.

IS LOST BUT
17 In Bhondsi Jail since 19.03.2008 Certificate of Municipal 19-Mar- 28-Jul-2008 Record found missing in certified Record 4
Councillor 28.07.2008 2008 record dated 02.06.20l 1. found
missing
Ra,hmi
IA
,,.,,,...,,
2013.10.07 11:59
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CopyOfthe
Ori ina!
PH~C,Chandlgarh
-98-
_,.,J
\OV
18 In Bhondsi Jail since 19.03.2008 Affidavit of wife 19-Mar- 28-Jul-2008 3 3
2008
19 In BhOndsi Jail since 19.03.2008 Bail bond issued on surety of 16-Jun- 28-Jul-2008 Bail granted by Ms.Ronjano 1 to 2 1 to 2
wife Rs 15000/- 2008 Aggarwal, JMIC Gurgaon on
16.06.2008/ 28.07.2008 was
cancelled by Sh Powon Kumar, JMIC
Gurgaon on 29 .09 ,2009 wifhout any
notice to accused or his counsel,
'---P who were regulorty appearing in the

'-0
case in gravest breach of judicial
discipline. LACKING ESSENTIAL
•
INGREDIENT OF MEDICO-LEGAL
REPORT & WEAPON RECOVERY this
case was reduced to level of
bailable offence by 28.07.2008 upon
grant of boil. In bailable offences
boil once granted may only be

Rashml
2013.10.07 11:59
True Scanned
• .fill_~ Copy Of the
~
,.,,.,,,, ~i'.jl~~.~handlgarl1
-99-
..,y \ o·;,
cancelled by the High Courts ond
!he Supreme Court. Law on bail
cancellolion in bailable offences is
well settled by a Constitution Bench
of !he Supreme Court in Ratilol Bhanji
Mithani v. Ass! Collector of Customs
Bombay 1967 AIR 1639, l 967(3) SCR
r--- 926 and amplified by the Apex Court
'-0 in Rasiklal v. Kishore arising oul of SLP
Cr 4008 of 2008 declded on
20.02.2009 and in Appeal No. 2271 of
• 2010 (Arising ou1 of SU' (Cr\.) No.7615
of 2009! Siddhararn Sallingappa
Mhetre v S1ate of Maharashtra
decided on 02.12.2010.
I
Rashmi
2013,10,07 11 :59
True Scanned
Copy Of tlle
On inal
"""'""' PH~C,Charrdigarh
-100-
__..,,.,,
20 "Present APP for the State. "Present APP for the Stole. Shri 23-Jul- 28-Jul-2008 Sh Pawan Kumar, JMIC Gurgaon 76 lo 77
l 'D 1
Accused produced before R.S. Saini, counsel for the 2008
me with the request of judicial accused Krishan. File token up
remand. Accused be kept in today an the application for
judicial custody till 5.8.08 and acceptance of boil bond and
be produced on that dale." surety bonds as per order of
Ms. Ranjona Aggorwol...JMIC,
Gurgaon dated 16.6.08.

Ix:) . Heard. Bail bond and surety
'-D
bonds furnished, accepted
and attested. Personal bond
•
be attested al jail gate.
Release order be issued
immediately. Now to come
up on the dale fixed."
Rashml
2013.10.07 11:59
True Scanned
• CopyOfthe
A ,,.,.,,,,.,,
Original
PHHC,Chandlgarh
-101-
-r
21 "Present APP for the State. Shri "Present APP for the State. 2$-Ju!- 5-Aug, Sh Powan Kumar. JMIC Gurgaon. 72 lo 73
\ o5
R.S. Saini. counsel for the Accused on boil with Sh RS. 2008 2008 Challen was already .received by
accused Krishan. File token up Saini. Adv. Challen not Court on 21.04.2008 and falsely
today on the application for received. If be awaited for 8- stated to be handed over to
occeptonce of boil bond and l \-08 for awaiting of chollan." accused. Nb Co1J!1 Jogdish, APP 8.
surety bonds as per order ot learned Sh. Powan Kumar JMIC
Ms. Ranjano Aggarwal. .. JMIC, Gurgaon are liable for grave

<S---
Gurgoon dated 16.6.08. miscarriage of justice for this false
~
Heard. Boil bond and surety statement that chollan is awaited. In
bonds furnished, accepted port, this has led to wrongful arrest,
and attested. Personal bond custody and cvsfodial death of
• be
Release
attested
order
at jail
be
immediately, Now to come

gate.
issued
accused on 12.01.2010.
up on the date fixed."
I
Ro;hmr
2013 la 07 ::1 59
Tn;~ Scanned
Cop\' Of the
Orig1riaf
~-.,,,.,, PHHC,cn,md1gam
-102-
-r
22 "!'resent Al'P for the State. "Present None. file taken up 5-Aug- 6-Nov-
\vi
Sh Pawan Kumar, JMIC Gurgaon 58 lo 59
Accused on bail with Sh R.S. today as I am proceeding on 2008 2008
Saini, Adv. Challan not earned leave for 6.1 l.08 to
received. It be awaited for 8- 8.11 .08 on account of illness of
11-08 for awaiting of chollan." my wife. Hence lhe matter is
adjourned lo 24/ l /09 for !he
same purpose. All concerned
be informed accordingly."
()
r-- 23 "Present None. File taken up "Present APP for lhe State. 6-Nov- 24-Jan- Sh Pawan Kumar, JMIC Gurgoon, 54 to 55
today as I om proceeding on Accused on boil with counsel. 2008 2009 APP, Nb Court Jagdish and Sh R.S.
earned leave for 6.1 1.08 to Chollan not received. !t be Saini (who never once sought
• 8.11.08 on account of illness of awaited for I /5/09."
my wife. Hence the matter is
adjourned to 24/1 /09 for the

inspectoion of file) oil failed to look
at the file and see the challon.
same purpose. All concerned
be informed accordingly."
Rashml
I
""'"'"'
, 2013.10,07 11:59
True Scanned
Copy Of the
Ongmal
PHHC,Chand!garh
-103-
:'V
24 "Present APP for the State. "Present APP for the State. 24-Jan- 1-May- On O1.05.2009 challan was awaited 52 to 53
\of
Accused an bail with counsel. Accused on bail with counsel. 2009 2009 by counsel of accused far 5.08.2009
Challen not received. It be Challen no! received. It be but is falsely stated lo be supplied lo
awaited for 1/5/09." awaited for 5/8/09 ." accused free of cost on 30.04.2008
and in order dt 05.08.2009 it is falsely
stated lo be awaited for 11.02.20 l 0.
25 "Present APP for the Stale. "Present None. File taken up 30-Apr- 5-May- Accused was on bail since 44 lo 45
Accused in custody, Krishan - today as I am proceeding an 2008 2009 28.07.2008 bu! no information was
F P. Copy of challan supplied to casual leave on today i.e. given lo his counsel or even sent to
the accused free of cost. Now 5.06.09. Hence the matter is his recorded address of this second
case is adjourned to 14.05.09 adjourned to 6/7/09 for the set of ghost proceedings arising from
• for consideration on charge. same purpose as already file.
TIii then accused be kepi in All concerned be Informed
judicial custody," accordlngly."

a typographical error in Order dt
30.04.2008 inadvertently mentioning
next date as 14.05.2009 instead of
14.05.2008 ..
Rashmi
I,....,,,.,.
2013.10.07 11:59
True Scanned
Copy Of the
I
~~ ~t~handlgati'l
-104-
\o?:
,:0 \O A9
s\nce
0 o\l
of\
'""""' "'"'
p..cc0sed oul f\O \n\0<""0(1of\ v,os
\f.-tJIO'/'
7.e.01:=- A d aod<6"·
&,tJIO'l-
~e 51010. ,]!$fl • 10 n\S recorue
l sen, •
•?? \O! "
"Pfesef\l r nol 9,odvced- 7JJO'I
.. I t,\of\e, f1\e 10'1-e" u? ,,.,ccuseo
nol 9,oduced O'/
A
'( ?<ese" oceed1n9 on
t,.ccusev ., 1.el
26
;odO'I as I """ ?' \odO'f \,e, ,, ""'""'''-;.
,ne l o~1 I og01n,I
4'),IOAo
cosuo.\ \eO"e of\,rie rno\\et •,s ~ ,. of\ wocton ·1 since
otouuCJ t,0\1
, oe -,,sued '"' on
5_00.0'I · 1-1ence d \NOS '#.OS
I b/7 /O'I \O! l\'10 0
O
/11.ccvse . ,on"\'\o\\01"1
od1o"'"ed l<eod'/ (1\0, 111e ccuseo f'\O 1t"i
O 1,-Jul-7JJO'I -""- ouI
7.5.07 .'l.""" d ooo<e•'·
?"(l)O'e
'° ~ os e
ml eu• 5/0/09:' cOfde
s1ole, 1;.tJIO'I' ,,oti\Sfe
\Of evetsen
~ I
<\Ole- ..p,esef\l
1-,PP
n,odvced-
?!JO'I
I.'- ~ o? \of 1ne 0
A"ced 1-,ccvsed
f\O'
wc{{Of\'
r-
o9o\,("15'
"?<e,e"I 1-,, prov" •
'),7 ap1odud10', d \<.nsnof\ no\
,._ccused oo\
I p,oduced O'/ tne accuse
!< 1.el 1tesl'
1-,ccused no 1.el
oll ov\l\Of'I'/. 1ece'.l"ed bOC • of\\ 0 go\ns\
l o9o\flSI
w,e 1 -1, ,c\\o-o ware
•
p(OU' d l(.nsnO" oe issued
9,ooucliofl "'""on
d oe ,ssved 10< ,neoccuse
,ne 0 ccuse
\Of , 2.@,?JJO'I :·
,/b/O'I:
eas,m,
I
,,,.,,.,.,,
2013.10.0111,s9
True Scanried
5i'FcXn~rthe
PJ-l~C,Chandlgarh
-105-
r
28 "Present APP for the Stote. "Present APP for the State. 1-May- 5-Aug- Next dote was fixed for I 1.02.2010 56 to 57
\01
Accused on bail with counsel. Accused is on bail with 2009 2009 but bail cancelled on 29.09.2009
Challan nat received. It be counsel. Challen not without checking the facts available
awaited for 5/8/09 ." received. It be awaited for on the file as recently as 05.08.2009.
11 /2/10."
29 "Present APP for Slate. "Present APP for State. 6-Jul-2009 12-Aug- APP had appeared on 05.08.2009 40 to 41
Accused not produced. Accused not produced. 2009 just a week back. No mention was
Production warrant against Production warrant against made by him of any hearing on
~ fhe accused Krishan not fhe accused nof received 05.08.2009. Accused was on bail
received back. let fresh back. Let fresh production since 28.07.2008 but no information
production warrant against warrants against the accused was sent to his recorded address
• the accused Krishan be issued be issued for 02.09.2009 ."
for 12.08.2009."
even as he was regularty appearing
in court with his counsel.
Rashm;
I
~.,,,, ..,,
2013.10.07 11:59
True Scanned
g<;fc\n~f the
PH~C,Chandlgarh
-106-
r \i 0
30 "Present APP for State. Production warrant issued to 12-Aug- 2-Sep-2009 Sh Pawan Kumar, JMIC Gurgaon 26 to 27
Accused not produced. Superintendent Bhondsi Jail 2009
Production warrant agoinst not received bock
the accused not received
back. Let fresh production
warrants against the accused
be issued for 02.09.2009 ."
31 Production warrant issued to Production warrant issued to 2-Sep- 5-Sep-2009 Accused was on bail since 7108
Superintendent Bhondsi Jail Superintendent Bhondsi Jail 2009 28.07.2008

~
~ not received back for 29.09.2009
32 Production warrant issued lo Superintendent Bhondsi Jail 5-Sep- 13-Sep- Accused was on bail since 9
• Superintendent Bhondsi Jail intimated Iha! accused was 2009 2009 28.07.2008 and was regularly
for 29.09.2009 released on 28.07.2008 appearing on dates appointed in
the Court in presence of his counsel.
Rashmi
i/> 2013,10,07 11:59
True Scanned
• CopyOfthe
A n,o, ,.,,
Onglnal
PHHC,Chandigarh
-107-
('' lI 1
33 "Present APP for State, "Present APP for the State. 12-Aug- 29-Sep- Sh Pawan Kumar, JMIC Gurgaon 78 to 79
Accused not produced. Accused Krishan absent. 2009 2009 made no attempt whatsoever to
Production warrant against Production warrant against summon counsel of accused, Sh R.S.
the accused not received the accused Krishan received Saini who could have cleared the
back. let fresh production back with the report that matter in a minute.
warrants against the accused accused is not confined in
be issued for 02.09.2009 ." Distt. Jail Bhondsi. Despite
repeated calls since morning,
accused Krishan has not
r turned up in the Court. It
isalready 2:45 PM. Waited

•
• sufficiently. Further wait for the
accused is not
Therefore, the bail of the

justified.
accused is hereby cancelled
and his bail bonds are
Rashrni forfeited to the state of

2013.10.07 1L59
True Scanned
• CopyOfthe
On 1lna!
•'""'"' PH~C,Chandlgarh
·108.
,- Koryono. Now accused

\\v
Kri,hon is summoned throvgh
non-bailable warran1s for
I l .Q1 .2010. Notice to his surety
be olSo issued far the dote

'-0
)'- fixed. A red ink note be given
on !he woffont !hot executing
consloble will appear in this
court on the date fixed for
moking his statement
regarding non-exec<Jlion of
• warrant"
34 fomffel proceedings Ullknown Non-bailable woiranl tor 29-Sep-09 l I-Nov- Parallel proceedings Ullknown 1o 4 lo 5
Ras.1:,,'l'I., to accused 11.01,2010 issued 2009 acwseo er his counsel.

201J,J->'.a1 ll;59
~
• r-r1!<'! Sce,., 11 <ed
Coorott~e
Or/grr.aJ
""""' ~r!RC,(~9arh
-109-
r l/7
35 Non-bailable warrant for Constable Virender claimed 1l-Nov-09 l 1-Jan- Allegedly told accused and his wile 6
11.01.2010 issued to hove arrested and 2010 that ea~ier bail is cancelled
produced accused but he
actually picked him up from
the table of counsel inside the
court premises.
36 Non-bailable warrant for Remanded to 14 days judicial l l-Nov-09 11-Jan- No warrants served on accused at 28 to 29
r- 1l.Ol.2010 issued. Constable custody. 2010 any stage nor his signatures
\' Virender claimed to hove ob fained for receipt of warrant.
arrested and produced
accused.
•
Rashmi
2013.10.07 11:59
True Scanned
a
•
*'"'~"
CopyOfthe
Orfglnal
PHHC,Chandigarh
-110-
r·
37 "Present APP for the State. "Present APP for the State. 29-Sep- Jl-Jon- Sh Powon Kumar, JMIC Gurgoon 74 to 75
\!½
Accused Krishcn absent Accused Krishon is in custody. 2009 2010 made no attempt whatsoever to
Production warrant against Accused produced before summon counsel of accused. Sh R.S.
the accused Krishan received me in compliance of non Saini who could have cleared !he
bock with the report that bailable warrant. Let the matter in a minute. Al 10.30 A.M. on
accused is not confined in accused be tal:en in custody 11.01.2010 he was remanded in
~ Dis!l. Jail Bhondsi. Despite and be sent in judicial custody good health. Within 20 hours by 7
)' repealed calls since morning. upto 25/1 /2010." A.M. an 12.01.2010 he was dead.
accused Krtshon has not
turned up in the Court. It
isalreody 2:45 PM. Wailed
• sufficiently. further woii for ihe
accused is not
Therefore, !he bail of !he

justified. h
accused is hereby cancelled
ond his boil bonds ore
forfeited lo the state of

Rastimi
2ou.lo.o;, 11:59
• . Tn.e Sci'lnnea
5 Cc,oy Of the
Orfo/na/
a,,,.,, P-H\1c,chari.01i;iam
-111.
r
Horyana. Now accused
LI,$
Krishon is summoned 1hrough
non-bailable warrants for
11.01.2010. Notice to his surety
be also issued for the date
fixed. A red inK note be given

~
on !he warran! lhal executing
l' constable will appear in this
court an ihe dote fixed for
making his statement
regarding non-execution of
• worront. 1
'
""""''
2Cn,10,o;-11:s9
True Scar,ned
s~,n~{the
I.,.,,,,,,, PHHC,Chand)gam
-112-
r· ~lb
38 Remanded to 14 days judicial Letter of Jail Superintendent. 11-Jan- 25-Jan- No mention of bruises photographed 30 to 31
custody. Bhondsi intimating death in 2010 2010 by PS Bhondsi on 12.01.2010.
custody an 12.0 l.2010.
39 "Present APP for the State. "Present APP for the State. 11-Jan- 25-Jan- 86 to 87
Accused Krishan is in custody. Accused Krishan@ Kaworia is 2010 2010
Accused produced before stated to be died. File not
me in compliance of non received. ...Adjourned to

()
bailable warrant. Let the 2.02.2010 ... "
~
accused be taken in custody
and be sent in judicial custody
upto 25/1 /201 O."
• 40 "Present APP for the State. "Present APP for the Slate. 25-Jon-
Accused Krishon @ Kawaria is Accused Krishan
stoled to be died. File not staled lo be died. FIie not

@ Kawaria is 201 O
2-Feb-2010 84 lo 85
received. ...Adjourned to received. It be awaited for
2.02.2010..." 25/2/10."
Rashm;
I
•n!fl'f'il
2013.10.07 11:.59
True Scanned
6~FcXn~r the
PH~C,Chandlgarh
-113-
r
,,,
ll f
41 "Present APP tor the State. "Present APP for the State. 2-Feb- 25-Feb- 82 to 83
Accused Krishan @ Kawano is Accused Krishan @ Kawano is 2010 2010
staled to be died. File not stated to be died. File not
received. It be awaited for received. 11 be awaited for
25/2/10." 5/3/10."
42 "Present APP for the State. "Present APP for the Stale. 25-Feb- 5-Mar-2010 80 lo 81
Accused Krishan @ Kawaria is Accused Krishan @ Kawano is 2010
stated to be died. File not stated lo be died. File not

~ received. II be awaited for received. It be awaited for
5/3/10." 5/4/10."
43 "Present APP for the Slate. "Present APP for the State. 5-Mar- 5-Apr-2010 90 to 91
• Accused Krishan @ Kawaria is Accused Krishan @
stated to be died. File not stoled to be died. File not
received. It be awaited for received. It be awaited for

Kawaria is 2010
5/4/10." 1/5/10."
Rashmi
2013.10.07 11:59
T'.ue Scanned
•
Jlffil. g~rcrn~f th
e
~ PH~C,Chandigarh
-114-
/''
88 to 89
,1t
44 "Present APP for the Stote. "Present APP for the Stole. 5-Apr-2010 1-Moy-
Accused Krishon @ Koworio is Accused Krishon @ Koworio is 2010
stated to be died. File not stoled to be died. File not
received. It be owoiled for received. II be owoited for
l /5/10." 10/7/10."
45 "Present APP for the Stole. "Present None. File token up 1-Moy- 9-Jul-2010 92 to 93
Accused Krishon@ Koworio is today as 10.07.2010 hos been 2010
c--i stoled to be died. File not declared os holidoy due to

~ received. It be awaited for Locol Elections. Now to come
10/7/10." upon 20/11/10 for the purpose
already fixed. Parties be
• informed occordingly."
Rashmi
I.,,.,,,.,.,
2013.10.07 11:59
True Scanned
~fc'fn~/the
PH~C,Chandlgarh
-115-
r \l1
46 "Present None, File token up "Present APP for the State. 9-Jul-201 O 20-Nov- For non-bailable offences it is a 96 to 97
today as 10.07.2010 hos been Accused died. File token up 2010 settled legal position that the court
declared as holiday due to by the undersigned in which grants the bail also has the
local Elections. Now to come compliance of order bearing power to cancel it. However, in the
upon 20/11/10 for the purpose Endst. No. 22730-54/09 doled case of bailable offences once bail
already fixed. Parties be 9.12.2009 passed by learned is granted it shall not be cancelled
informed accordingly." District and Sessions Judge, by any court other than a High Court
c('\ Gurgaon as Sh. Rajesh Gupta. or the Supreme Court. low on
6,o Civil Judge (JD) Gurgoon is on cancellation of boil in bailable
leave today. File not received. offences is well settled by a
Be awaited for 5.3.2011." Constitution Bench of the Supreme
•
Court in Rafi/al Bhanji Mithani v. Asst
Collector of Customs Bombay l 967
AIR 1639, 1967{3) SCR 926.
Rashm,
I'""'"''
2013 10 07 11 59
True Scanned
Copy Of the
On !nal
PHAC,Chandlgarh
,, -116-
47 "Present APP for the Stole. "Present APP for the Stole. 20-Nov- 5-Mar-2011 Order bearing Ends!. No. 22730-54/09 94 to 95
t yV
Accused died. File token up Accused died. File not 2010 doted 9.12.2009 passed by learned
by !he undersigned in received. It be awaited for District and Sessions Judge
compliance of order bearing 28/ 4/11 ," mentioned in Order dated
Ends!. No. 22730-54/09 doted 20.11.2010 is missing from the record .
9.12.2009 passed by learned
District and Sessions Judge,

--:s-- Gurgoon as Sh. Rojesh Gupta,
0<)
Civil Judge {JD) Gurgoon is on
leave today. File not received.
Be awaited for 5.3.2011."
•
Rashrni
" 2013.10.07 11:59
True Scanned
• CopyOfthe
Ori mal
• """ "" PH~C,Chandigarh
-117-
y'
~1-1
48 "Present APP for the State. "Present APP for the Slate. 5-Mar- 28-Apr- Vakalatnama of Sh R.S. Saini is 98 to 99
Accused died. File not Accused died. File received. 2011 2011 missing from the record. Application
received. It be awaited for Since accused hos died os for bail dated 11.06.2008 is missing
28/4/11." per report of Superintendent from the record. There is no signature
Jail, Bhondsi. proceedings recorded of accused being handed
against the accused are over to Escort Guard on 11.01.2010
dropped. File be consigned to by Naib Court Jagdish on photo
record room." remand Order No. 244 of I 1.01.2010.

\/\
6o How one single off duty/ on leave
constable of P.S. City Gurgaon
(whereas case was of P.S. Sector 5
•
Gurgoon) was permitted by jail
authorities to deposit him in jail at
5.34 P.M. without explanation.
breaching Rule 18.44 of Punjab
Police Rules, 1934, that minimum
escort shall be two on duty

Rashm;
I;""'"'
2013.10.07 11:59
True Scanned
copy Of the
Original
PHHC,Chand!garh
-118-
'11" \ '2-1----'
constables. is highly suspicious and
leads lo the assumption that he was
taken to P.S. City Gurgaon at 10.30
A.M. and detained for several hours
till 5.30 P.M. wilhout any legal basis.
Beating marks on his body point to
~
beating at P.S. City Gurgoon or even
office or residence of Horyono
Minister; of Gurgaon. at this time
window.
I
Ra,hmi
2013.10.07 11:59
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§~fgYn~/ the
PHHC,Chal"ldlgarh
""""''
-119-
•
r
32. The above table shows clea~y the joint and several liabilily of S.H.O./1.O. and
learned .JMIC Gurgaon for violation of necessily of arrest principles laid down by
the Apex Court in Joginder Kumar v. Stale of U.P. 1994 SCC (4) 260. The
discussion on common law in Indian Constitution clears the misconception that
judges can not be proceeded against for their judicial misdemeanours
regardless of level, right up lo the Apex Court. No one, howsoever high. is
above the Constitution of India.
lndlgn Penal Code, 1860

Section 344. Wrongful confinement for ten or more days - Whoever
wrongfully confines any person for ten days, or more. shall be punished
with imprisonment of either description for a term which any extend lo
three years, and shall also be liable lo fine.
33. LAW OF ARREST UNDER CrPC, ARTICLE 141 & COMMON LAW:
A. Law on differences In grant and cancellaflon of baff In a baffabfe offence vis
a vis a non-bailable offence has been settled by a Constitution Bench of the
Supreme Court ln Ratllal Bhanjl Mithani v. Asst Collector of Customs Bombay
1967 AIR 1639, 1967{3) SCR 926:
·1n the matter of admission lo bail, the Code of Criminal Procedure
makes a dis!incfion between bailable and nonbailable offences. The ,"'--
grant of bail to a person - accused of a non-bailable offence is
discretionary under Sec. 497 of the Code and the person released on bail
may again be arrested and commitled to custody by an order of the
High Court, the Court of Session and the Court granting the bail. Under
See. 498 of the Code the High Court and the Court of Session may
release any person on bail and by a subsequent order cause any person
so admitted to bail to be arrested and committed to custody. A person

accused of a bailable offence is treated differently; at any time while
under detention without a warrant and at any stage of the proceedings

4iD ~n'.'l'0 d:,e,fwe the Court before which he is brought. he has the right under Sec.
1g Tn.ie Scanned
jJjfil.. Copy Of the
~ ~ta~;~hailSl.{,,,of the Code to be released on bail. The Code makes no express
-120-
provision for the cancellation of a bail granted under Sec. 496.
Nevertheless, if at any subsequent stage of the proceedings, it is found
that any person accused of a bailable offence is intimidating, bringing or
tampering with the prosecution witnesses or is attempting to abscond,
the High Court has the power to cause him to be arrested and lo commit
him to custody for such period as it thinks fit. This jurisdiction springs from
the over-riding inherent powers of the High Court and can be invoked in
exceptional cases only when the High Court is satisfied that the ends of
justice will be defeated unless the accused is committed to custody. For
the reasons given in Ta/ab Haji Hussain's case(!), we hold that fhfs
inherent power of the High Court exists and is preserved by Sec. 561-A of
the Code. The person committed to custody under the orders of the High
Court cannot ask for his release on bail under sec. 496, but the High Court
may by a subsequent order admit him to bail again.
(I) Talab Haji Hussain v. Madhukar Purshottam Mondkar and another
[1958 S.C.R. 1226)"
B. Law on cancellation of boll in a bollabie offence hos beeen amplified by the
Apex Court In Rosiklol v. Klshore arising out of SlP Cr 4008 of 2008 decided on
20.02.2009:
"8. It may be noticed that sub-Section (2) of Section 436 of the 1973 Code
empowers any court to refuse bail without prejudice to action under
Section 446 where a person fails to comply with the conditions of bail
bond giving effect ta the view expressed by this Court in the above
mentioned case. However, it is well settled that bail granted to an
accused with reference to bailable offence can be cancelled only if the
accused (1) misuses his liberty by indulging in similar criminal activity, (2)
interteres with the course of investigation. (3) attempts to tamper with
evidence of witnesses. (41 threatens witnesses or indulges in similar
activities which would hamper smooth investigation. (5) attempts to flee
Rashm, to another country, (6) attempts to make himself scarce by going

2013.10.0711:59
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• jlf~t Copy Of the . , . . •
~ ~n~t~"'\!Q.g/ilrground or becoming unavailable lo the 1nvest1gahng agency, (7)
,..,,,.,...,
-121-
attempts lo place himself beyond !he reach of his surely, etc. These
grounds ore illustrative and not exhaustive. However. a bail granted to a
person accused of bailable offence cannot be cancelled on the ground
that the complainant was not heard. As mandated by Section 436 of the
Code what is to be ascertoined by the officer or the court is whether !he
offence alleged to hove been committed is o bailable offence and
whether he is ready" to give boil as may be directed by the officer or the
court. When o police officer releases o person accused of a bailable
offence, he is not required to hear the complainant at all. Similariy, a
court while exercising powers under Seclion 436 of the Code is not bound
lo issue notice to the complainant and hear him."
C. Law on grant of baff In a non-bailable offence has been settled by by a
Constitution Bench of the Supreme Court In Gurbaksh Singh Slbbla and others v.
Stale of Punjab (1980} 2 sec 565 as held In Cr. Appeal No. 2271 of 2010 (Arising
out of SLP (Crl.) No.7615 of 2009) Slddharam Satllngappa Mhetre v Stale of
Maharashtra decided on 02.12.201 O:
"27. The Constitution Bench of this Court in Gurbaksh Singh Sibbio and
Others v. State of Punjab (1980) 2 sec 565 ...where the accused who
apprehends his/her arrest on accusation of having commi!ted a non-
bailable offence con be granted boil .. The Constitution Bench's relevant
observations ore set out as under:
" ........ A wise exercise of judicial power inevitably lakes care of the evil
consequences which ore likely to flow out of its intemperate use. Every
kind of judicial discretion. whatever may be the nature of the matter in
regard to which it is required lo be exercised. hos to be used with due
core and caution. In fact. on awareness of the context in which the
discretion is required to be exercised and of the reasonably foreseeable
consequences of its use. is the hall mark of a prudent exercise of judicial
~oitt .,9~g;tion.
0
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0. Accused is presumed to be Innocent 1111 he Is found gullly: Cr. Appeal No.
2271 of 2010 (Arising out of SLP (Crl.J No.7615 of 2009) Slddharam Salllngappa
Mhetre v Slate of Maharashtra decided on 02.12.2010:
''93. It is a mailer of common knowledge that a large number of
under!rials are languishing in jail for a long lime even for allegedly
commilting very minor offences. This is because section 438 Cr.P.C. has
not been allowed its full play. The Constitution Bench in Sibbia's case
(supra) clearly mentioned that section 438 Cr.P.C. is extraordinary
because it was incorporated in the Code of Criminal Procedure, 1973
and before that other provisions for grant of boil were sections 437 and
439 Cr.P .C. It is no! extraordinary in !he sense Iha! it should be invoked
only in exceptional or rare coses. Some courts of smaffer strength have
erroneously observed that section 438 Cr.P.C. should be invoked only in
exceptional or rare cases. Those orders are contrary to the law laid down
by the judgment of the Constitution Bench in Sibbia's case (supra/.
According to the report of !he Nalional Police Commission. !he power of
arrest is grossly abused and clearly violates the personal liberty of the
people. as enshrined under Article 21 of the Constitution. then the courls
need to toke serious notice of it. When conviclion rate is admittedly less
than 10%. !hen !he police should be slow in arresting !he accused. The
courts considering the boil application should try to moinlain fine
balance between !he societal interest vis-a-vis personal liberty while
adhering to the fundamental principle of criminal jurisprudence Iha! !he
accused that the accused is presumed to be innocent till he is found
guilty by the competent court."
E. Cancellation of ball In a non-bailable offence (In Cr. Appeal No. 2271 of 2010
(Arising out of SLP (Cr1.J No.7615 of 2009) Siddhoram Satlingappa Mhelre v State
of Maharashtra decided by the Apex Courl on 02.12.2010:
~m•%,;:::1c,Jv1r. Bhushan also submitted that according to the General Clauses

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vy
The grant of bail is an interim order. The court can always review its
decision according to the subsequent facts, circumstances and new
material. Mr. Bhushan also submitted that the exercise of grant, refusal
and cancellation of bail con be undertaken by the court either at the
instance of the accused or a public prosecutor or a complainant an
finding fresh material and new circumstances at any point of lime. Even
the appellant's reluctance in not fully cooperating with the investigation
could be a ground for cancellation of bail.
32. Mr. Jethmolani fairly submitted that the praciice of passing orders of
anticipatory bail operative for a few days and directing the accused to
surrender before the Magistrate and apply for regular bail are contrary to
the law laid down in Sibbia's case (supra). The decisions of this Court in
Solauddin Abdulsomad Shaikh v. State of Maharashtra (1996) 1 sec 667,
K. L. Verma v. State and Another [1998) 9 sec 348, Adri Dhoron Dos v.
state of West Bengai (2005/ 4 sec 303 and Sunita Devi v. State of Bihar
and Another {2005) 1 sec 608 are in conflict with the above decision of
the Constitution Bench in Sibbie's case [supra). He submitted that all
these orders which ore contrary to the clear legislative intention of Jaw
laid down in Sibbie's case [supra) are per incuriom. He also submitted
that in case the conflict between the two views is irreconcilable, the
court is bound to follow the judgment of the Constilu!ion Bench over !he
subsequent decisions of Benches of lesser strength.
65. In Maneka Gandhi v. Union of Indio and Another {1978) 1 sec 248,
this court expanded the _scope of the expression 'personal liberty' as
used in Article 21 of the Constitution of Indio. The court rejected the
argument that the expression 'personal liberty' must be so interpreted as
to ovoid overlapping between Article 21 and Article 19[1 ) ....
~3l1"l'o.oHV,9 The proper course of action ought to be tho! ofter evaluating the
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lo grant onficipofory boil !hen on interim boil be granted and nofice be
issued lo the public prosecutor. After hearing !he public prosecufor !he
court may eifher rejecl the boil applicofion or confirm the initial order of
granfing boil. The court would certainly be entifled lo impose conditions
for the grant of bail. The public prosecutor or comploinanf would be at
liberty to move the some court for cancellation or modifying !he
condifions of bail any lime if liberty granted by !he court is misused. The
boil granted by the court should ordinonly be confinued fill !he trial of the
case.
103. It is a settled legal position that the court which grants the boil also
has the power to cancel if. The discretion of grant or concellofion of boil
con be exercised either at the instance of the accused, the pubfic
prosecutor or the comploinoni on finding new material or circumstances
of any poinf of lime.
105. The court which gronfs the boil hos !he right lo cancel the boil
according lo !he provisions of the General Clauses Act but ordinarily
ofter hearing the public prosecutor when the boil order is confirmed then
the benefit of !he grant of !he boil should continue till the end of the !rial
of that case.
107... If would no! stand the test of fairness and reasonableness which is
implicif in Article 21 of the Constitution otter the decision in Moneko
Gandhi's case (supra) in which lhe court observed that in order lo meet
the challenge of Article 21 of the Constitution the procedure established
by low for depriving a person of his liberty must be fair. just and
reasonable.
117. The view expressed by this Court in all the above referred judgments
~311'%.oPflW to be reviewed and once the anticipatory boii is granted then !he
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93
interim protection by way of the grant of anticipatory bail is curtailed
when the anticipatory bail granted by !he court is cancelled by the court
on finding fresh material or circumstances or on the ground of abuse of
the indulgence by the accused."
F. Guidelines For Arrest: Cr. Appeal No. 2271 of 2010 (Arising out of SLP (Crt.)
No.7615 of 2009) Slddharam Satllngappa Mhetre v State of Maharashtra
decided on 02.12.2010:
"95. The gravity of charge and exact role of the accused must be
properly comprehended. Before arrest. the arresting officer must record
the valid reasons which have led to the arrest of the accused in the case
diary. In exceptional cases !he reasons could be recorded immediale(y
after the arrest, so tho! whiie dealing with the bail application. the
remarks and observations of !he arresting officer can also be properly
evaluated by the couri.
96. II is imperative for the courts to carefully and with meticulous precision
evaluate the facts of the case. The discretion mus/ be exercised on the
basis of the available material and the facts of the particular case. In
cases where the court is of the considered view that the accused has
joined investigation and he is fully cooperating with the investigating
agency and is not likely to abscond. in that event, custodial interrogation
should be avoided.
97. A great ignominy, humiliation and disgrace is attached to the arrest.
Arrest leads to many serious consequences not only for the accused but
for the entire family and at times for the entire community. Most people
do not make any distinction between arrest at a pre-conviction stage or
post-conviction stage.
11
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111 .....The applicant who may not have otherwise lost his liberty loses it
because he chose to file application of anticipatory bail on mere
apprehension of being arrested on accusation of having committed a
non-baflable offence. No arrest should be mode because it is lawful for
the police officer to do so. The existence of power to arrest is one thing
and the justification for the exercise of· it is quite another. The police
officer must be able to justify the arrest apart from his power to do so. This
finding of the said judgment (supra)[Solauddin's case] is contrary to the
legislative intention and tow which has been declared by a Constitution
Bench of this court in Sibbia's case {supra).
120. The Law Commission in July 2002 hos severely criticized the police of
our country for the arbitrary use of power of arrest which. the Commission
said, is the result of the vast discretionary powers conferred upon them by
this Code. The Commission expressed concern that there is no internal
mechanism within the police department to prevent misuse of law in this
manner and the stork reoHty that complaint lodged in this regard does
not bring any result. The Commission intends to suggest amendments in
the Criminal Procedure Code and has invited suggestions from various
quarters. Reference is made in this Article to the 41 st Report of the Law
Commission wherein the Commission saw 'no justification' to require a
person to submit to custody, remain in prison for some days and then
apply forboil even when there are reasonable grounds for holding that
the person accused of an offence is not likely lo abscond or otherwise
misuse his liberty. Discretionary power to order anticipatory bail is required
to be exercised keeping in mind these sentiments and spirit of the
judgments of this court in Sibbie's case (supra) and Joginder Kumar v.
State of U.P. and Others {1994) 4 sec 260.
122. The following factors and parameters can be taken into
~01i"t'o ffil:liideraiion while dealing with the anticipatory bail:

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i. The nature and gravity of the accusation and the exact role of the
accused must be property comprehended before arrest is made:
ii. The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by o
Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv, The possibmty of the accused's likelihood to repeat similar or the other
offences.
v. Where the accusations hove been mode only with the object of
injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory boil particularly .in cases of large
magnitude affecting o very forge number of people.
vii. The courts must evaluate the entire ovaiJobJe material against the
accused very carefully. The court must also clearty comprehend the
exact role of the accused in the case. The cases in which accused is
implicated with the help of sections 34 and 149 of the Indian Penal Code,
the court should consider with even greater care and caution because
over implication in the coses is o matter of common knowledge and
concern;
viii. While considering the prayer for grant of anticipatory bail, a balance
hos to be struck between two factors namely, no prejudice should
bethere should be prevention of harassment, humiliation and unjustified
detention of the accused;
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ix. The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the
eiement of genuineness that shall hove to be considered in the matter of •
grant of boil and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the
accused is entitled to on order of boil.
123. The arrest should be the lost option and it should be restricted to
those exceptional coses where arresting the accused is Imperative in the
facts and circumstances of that case.
124. The court must carefully examine the entire available record and
particularly the allegations which have been directly attributed to the
accused and these a/legations ore corroborated by other material and
circumstances on record.
125, These ore some of the factors which should be taken into
consideration whie deciding the anticipatory boil appfications_. These
factors are by no means exhaustive but they ore only illuslrative in nature
because it is difficult to clearly visualize all situations and circumstances in
which a person may pray for onficipolory bail. If a wise discretion is
exercised by the concerned judge, ofter consideration of entire material
on record then most of the grievances in favour of grant of or refusal of
bail will be taken core of. The legislature in its wisdom has entrusted the
power to exercise this jurisdiction only to the judges of the superior courts.
In consonance with ihe legislative intention we should accept the fact
that the discretion would be properly exercised. In any event, the option
of approaching the superior court against the court of Sessions or the
Hinh Court is always available.
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126. Irrational and Indiscriminate arrest ore gross violation of human rights.
In Joginder Kumar's case (supra). a three Judge Bench of this Court hos
referred to the 3rd report of the Notional Police Commission. in which it is
mentioned that the quality of arrests by the Police in India mentioned
power of arrest as one of the chief sources of corruption in the police. The
report suggested that. by and large, nearly 60% of the arrests were either
unnecessary or unjustified and that such unjustified police action
accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental light and ii should be
curtailed only when it becomes imperative according to the peculiar
facts and circumstances of the case.
129. In case the arrest is imperative, according to the facts of the case, in
that event. the arresting officer must clearty record the reasons for the
arrest of /he accused before the arrest in the case diary. but in
exceptional cases where it becomes imperative to arrest the accused
immediately. the reasons be recorded in the case diary immediately
ofter the arrest is mode without loss of ony time so that the court has on
opportunity to property consider the case for grant or refusal of bail in the
light of reasons recorded by the arresting officer.
131. It is imperative for the High Courts through its judicial academies to
periodically organize workshops, symposiums, seminars and lectures by
the experts to sensitize judicial officers, pofice officers and investigating
officers so that they can properly comprehend the importance of
personal liberty vis-a-vis social interests. They must learn ta maintain fine
balance between the personal liberty and the social interests.
132. The performance of the judicial officers must be periodically
~tli"l'o.ofilYg\uated on the basis of the coses decided by them. In case, they have
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societal interests, the lacunae must be pointed out to them and they
may be asked to take corrective measures in future. Ultimately, the entire
discretion of grant or refusal of boil has to be left to the judicial officers
and all concerned must ensure that grant or refusal of boil is considered
basically on the facts and circumstances of each case."
34. PROPOSED PRAYER TO COMPETENT COURT OF JURISDICTION
a. It is respectfully prayed that deficiencies, if any, in formatting and drafting of
this application may kindly be exempted in the interests of justice. and summons
be issued far production of the record from the respective witnesses. hostile or
otherwise, some of whom may be offered immunity from Section 3021.P.C. so as
to break the ring of conspiracy so that the actual influential persons, having
motive and truly responsible, unimpeached as of today, may be summoned,
tried, found guilty and punished according to low in the interesfs of justice. In
the event that custodial death as alleged is established, costs in the amount of
Rs 500 lokhs be imposed on the State of Horyono, for its failure to propeny
prosecute the molter for last 17 months, which it shall be at liberty to recover
jointly and severally from the persons found guilty of committing or abetting any
of the offences alleged, such sum to be credited to NGOs which reported this
matter to Notional Human Rights Commission, unknown to complainants till as
recently as OJ .05.201 I. to be utilized to set up a nationwide free to cal/ helpline,
free SMS and unlimited webspoce to enable upload of videos and photographs
ot custodial torture from alert citizens anywhere in India.
b. Recommend to the State Government and the Punjab & Haryano High Court
for appointment of Special Investigation Team by Hon'ble Chief Justice of
Punjab & Horyono High Court for independent investigation of this grove
violation of low which allegedly continues unchecked.
~~.· .iAnl/9 other or further order which this Hon'ble Court may deem fit and
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35. ALLEGED INVOLVEMENT OF OFFICERS OF HIGH COURT ETC.
a. Inaction under Article 51 A of the Constitution of High Court officers on Emails
doted 14.01 .201 O and 22.04.2011 point to alleged involvement of officers of High
Court. (Copies enclosed). Sanction sought below under CrPC 197 through the
Hon'ble Chief Justice. Punjab & Horyano High Court, from the authority
competent to permit prosecution of judicial officers and staff.
b. Inaction of NHRC officials in the matter may point to alleged involvement of
NHRC officials. (Copy of letter dated 28.05.2011 to NHRC is enclosed.) However
no sanction is proposed to be sooght against NHRC from the competent
authority at this stage.
c. Sanction sought below under CrPC 197 through the Chief Minister, State of
Horyana, from the authority competent to permit prosecution of officers and
staff other than those covered as above.
36. The media has reported the disturbing news that:
{ 1) Prisoners death-needle of suspicion points al politicians, cops, doctors
Dally Bhaskar 30.04.2011
(2) Judge for probe by independent agency in Gurgaon custodial death
The Tribune 30.04.20 l 1
13) Judges report pins murder on minister top cops
HT Gurgaon 01.05.2011
37. That this custodial death case appears to be a deep rooted conspiracy of
silence, allegedly involving Horyana ministers, police, jail staff and doctors,
doctoo of civil hospital. lawyers/ staff of the courts, doctors of Civil Hospital,
Gurgaon and staff of FSL concerned. In such type of a case, in Munshi Singh
Gautam (D) & Ors. V. Slate of M.P. 2005 (9) sec 631 decided on 16.11.2004 the
~~-<o,Qu{t,was constrained to hold:

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"Rarely In cases of police torture or custodial death, direct ocular
evidence of the compllclty of the police personnel alone who can only
explain the circumstances In which a person In their custody had died.
Bound as they are by the Iles of brotherhood, ii Is not unknown !hat !he
police personnel prefer to remain silent and more often than not even
pervert the truth lo save their colleagues and the present case Is an apt
Illustration as lo how one after the other pollce witnesses feigned
Ignorance about the whole matter...... The exaggerated adherence lo
and 1nslstence upon the establishment of proof beyond every reasonable
doubt by the prosecution, at times even when the prosecuting agencies
are themselves fixed ln the dock, Ignoring the ground realltles, the lacl-
siluatlon and the pecullar circumstances of a given case, as in the
present case. often results In miscarriage of jusfice and makes the justice
deUvery system suspect and vulnerable. In the uttlmate analysis the
society suffers and a criminal gels encouraged. Tortures in police
custody, which of late are on the Increase. receive encouragement by
this type of an unreollsflc approach al limes of the courts as well because
II reinforces the belief In the mind of the police that no harm would came
lo them if one prboner dies In the lock-up because !here would hardly be
any evidence available to the prosecution lo directly Implicate them with
the torture. The courts must not lose sight of the fact that death in poHce
custody ls perhaps one of the worst kind of crimes In a civiffzed society,
governed by the rule of law and poses a serious threat lo an orderly
civUlzed society. Torture in custody Houts the basic rights of the citizens
recognized by the Indian Cons!ltulion and Is on affront to human dignity.
Police excesses and lhe mol-treatment of delolnees{under-lrlal prisoners
or suspects tarnishes the image of any clvlllsed nation and encourages
the men in 'Khaki' lo consider themselves to be above the low and
sometimes even lo become law unto themselves. Unless stern measures
are taken to check the malady of the very fence eating the crops, the
I
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decay resulllng In anarchy and authoritarianism reminiscent of
barbatlsm. The courts must. therefore, deal with such cases in a reollsllc
manner and with the senslllvlly which they deserve, otherwise the
common man may tend to gradually lose faith In the efficacy of the
system of Judiciary itself, which If ii happens will be a sod day, for any
one to reckon wllh .....Though Sections 330 and 331 al the lndlan Penal
Code, 1860 (for short the 'IPC') make punishable those persons who
cause hurt for the purpose of extorting the confession by making the
offence punishable with sentence up lo 1O years of imprisonment, but the
convictions, as experience shows from track record have been very few
compared to the considerable Increase of such onslaught because the
otrocllles within the precincts of the pollce station are often left without
much !races or any ocular or ofher direct evidence to prove as to who
the offenders are....The courts are also required ta have a change In
their outlook approach. appreciation and attitude, partlcularly in cases
lnvoMng custodial crimes and !hey should exhibit more senslfMty and
adopt a reallstlc rather than a narrow technical approach, while dealing
with the cases of custodial crime so that as far as possible within their
powers, !he truth Is found and guilty should no! escape so tho! the victim
of the crime has the sallstacllon that ulllmalely the majesty of law has
prevailed."
38. Section 106 of the Indian Evidence Act, 1872 provides "When any tact ls
speclaUy within the knowledge of any person, the burden of proving that foci Is
upon him." The Apex Court while dealing with this aspect of custodial death has
held in K.H. Shekarappa v Slate of Karnataka 2010 (3) SCR 883:
"17. The fact that the deceased and injured were arrested and brought to
the Police Station Is not In dispute. II Is not In dispute that the deceased
and the Injured were brought to the Police Station on their two feel. The
Rashm; lesllmony of the Medical Officers, who had performed autopsy on the
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deceased were brought dead lo the hospital. When the deceased, who
were brought to the Pollce Stolion, were alive and were produced dead
before the Medical officer, ti Is for the appellants lo explain as to In which
circumstances they had died. The deceased were In the custody of the
appellants, who were police officials. During the Hrne when they were In
poUce custody they had expired. Therefore, II was within the special
knowledge ol _the appellants as to how they had expired. In view of the
salutary provisions of Section 106 of the Evidence Act, 1872, ti was for the
appellants to offer explanation regarding the death of the two
deceased."
39. Krishon Kumar wos admittedly arrested on his two feel ol 10.30 A.M. on
11.01.2010 and less than 20 hours laterwos brought dead os UTP to Civil Hospital,
Gurgaon with extensive bruises on his bock.
40. In view of the grove importance attached to custodial deaths
documentation of this case hos been made widely available on the world wide
web os follows:
(1) INQUIRY MAGISTRATE REPORT OT 02.04.2011 IN CUSTODIAL DEATH CASE P.S.
BHONDSI OT 11.01.2010:
http://www.docstoc.com/docs/78244064/Minister-Police-Jailors-Doctors-
lnvolved
(2) EMAIL OT 22.04.2011 AND 14.01.2010:
hllp://www.docstoc.com/docs/78244963/Viscero-Report-missinq
(3) PRIVATE COMPLAINT TO P.S. llHONDSI FOR FIR 23.04.2011
http://www.docstoc.com/docs/78245141 /FIR-No-action-by-police
(4) PETITION TO CHIEF JUSTICE OF INDIA OT 25.04.2011
_ , ~~-docsioc.com/docs/78245257/Peiition-io-Supreme-Court
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(5) COMPLAINT UNDER SECTION 18 {l) TO STATE INFORMATION COMMISSION
HARY ANA OT 04.05.2011
http://www.docstoc.com/docs/78752570/Custodiol-Deoth-Gurgaon
(6) Comparison Goa Custodial Death Case of 09.01.2011 vis a vis Gurgaon
Custodial Death Case of 12.01.2010
http://www.docstoc.com/ docs/788527 42/Gurgaon-vs-Goa
(7) CUSTODIAL DEATH Stale Bection Commission Haryana letter
No.SEC/3ME/2011/1146 di 06.05.2011
hl!p://www.docstoc.com/docs/78887998/First-Official-Acknow\edqement!!
(8) FAQ-INDIA·IF POLICE BEATS U IN CUSTOOY ... KNOW UR LEGAL RIGHTS
http:/lwww.docstoc.com/ctocs/79042320/KNOW-YOUR-RIGHTS-CUSTODY-
BEATINGS
(?) Gurgaon Custodial Death Case Evasive RTI Reply Gurgaon Police 06.05.2011
h1to://www.docs1oc.com/ docs/79373399 /Omitted-role-of-PS-City-Gurqaon!!
(10) Case JMIC GGN 335 of 21.04.2008 Stale v. Krlshan
http://www.docstoc.com/docs/7942559 l /Sample-handwriting-of-master-forger-
of-election-
(11) 2nd RTI to Commissioner Police Gurgaon 13 May 2011 Signed
http:/fwww.docstoc.com/docs/79509535/no-date-of-bail-jumoing
41. In Mehboob Balcha v. Slate rep by Supdt of Police Cr App 1511 of 2003
decided 29.03.2011 the Apex Court held:
"15. We are surprised that the accused were not charged under Section
302 !PC ..they should have been charged under that provision and
~tl~"i;o.o~Yf~tded death sentence. as murder by policemen In police custody Is in

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sentence, but surprlslngly no charge under Section 302 IPC was framed
against any of the accused. We are constrained lo say that both the lriol
Court and High Court have toned In their duty In this connection."
42. The complainant has collected circumstantial evidence of this deep rooted
conspiracy, which prime facie points to unexplained custodial death, and in
order to obtain evidence of murder in custody and establish acts of omission
and commission amounting to offences under Sections 302. 304. 344, 193, 197,
201 & 220 IPC read with Sections 34, 35. 36, 37, 38, 39, 109, 120-B, 177, 191 & 192
IPC which may be required to be in accordance with Rule 16.38 of Punjab
Police Rules, 1934. Volume II (as applicable in Haryana State, Reprint Edition
2008 amended upto 31.03.2008) {Copy annexed) {Rules silent on custodial
death/ torture). would need the assistance of this Hon'bfe Court lo examine
witnesses and summon documents, some of which are awaited under the RTI
Act, 2005. A Special Investigation Team may also be appointed by the Chief
Justice of the Punjab & Horyana High Court upon suitable request to be mode
by the State of Haryona. Punjab and Haryana High Court Bar Assn v. State of
Punjab 1994 AIR ),()23, 1993 (3) Suppl.SCR 915, 1994 (1) sec 616. 1993 (4) SCALE
636, J997 fl 00 JT 502:
"........... The High Court was wholly unjustlHed In dosing Hs eyes and ears
lo the controversy which had shocked the lawyer fraternity In the region.
For the reasons best known to II, the High Court became wholly obUvlous
lo the patent facts on the record and tolled to perform the duly entrusted
lo H under the Conslltullon. After giving our thoughtful consideration to ttie
focts and clrcumstonces of this cose, we ore of the view thol the least !tie
Hlgti Court could hove done In this case was lo have directed on
independent lnvestlgotion/lnqulry.....•
43. In Munshi Singh Goutam (D) & ors. V. State of M.P. 2005 {9) sec 631 decided
'i!mlTuV,?9,1)4 the Apex Court held:
l .....
~,,,
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PHHC,Chandlgarti
-137-
lo 5
''The courts are also required to have a change In their outlook approach,
appreciation and attitude, partlcularly In cases Involving custodial crimes
and they should exhibit more sensitivity and adopt a reaOsllc mlher than
a narrow technical approach, while dealing with the cases of custodial
crime so !hot as far as possible within their powers, the truth Is found and
guilty should not escape so that the victim of the crime has the
satisfaction that ultlmalely the majesty of law has prevailed."
44. Sanction may kindly be granted under CrPC 197 for prosecution of the
following officers & staff by the appropriate competent authority in accord with
Munshi Singh Gautam (D} & Ors. v. State of M.P. 2005 (9) sec 631, K.H.
Shekarappa v Slate of Karnalaka 2010 (3) SCR 883 & Mehboob Saleha v. State
rep by Supdl of Police Cr App 1511 of 2003 decided 29.03.2011 u/s 302. 304, 344,
193. 197,201 & 220 IPC read with Sections 34, 35, 36, 37, 38, 39, 109. 120-B, 177,
191 & 192 IPC and Rule 18.44 of Punjab Police Rules, 1934, Volume II (as
applicable in Horyana State, Reprint Edition 2008 amended upto 31.03.2008/
reod with Section 96 (4) of the Haryana Police Act. 2007 {Act 25 of 2008):
I. Judlclal Qfflcen (Through Hon'ble The Chief Jusllce);
(A) Registrar General of fhe High Court of Punjab & Haryona for alleged fanure
to acl under Article 51A of the Constitution of India on Email doted 14.01.2010.
{8) Sh. Mukesh Rao. learned JMIC Gurgaon for the reasons as per details above.
(C) Sh. Pawan Kumar, learned JMIC Gurgaon for the reasons as per details
above.
II. other Officers !Through Hon'ble The Chief Minister}:
{A) All 40 persons mentioned in list al Page 81 of this document of police
personnel on duty at P.S. Sector 5 Gurgaon from 10.30 A.M.on11.01.2010 to 5.35
P.M. on 11.01.2010. (Total 40)
(Bl All 38 persons mentioned in fist at Page 82 of this document of police
ffll'NJl'il.l,9n duty at P.S. City Gurgaon from 10.30 A.M. on 11.01.2010 lo 5.35
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•J.ll'fil. Copy Of the
~~~fh\Q,; 91,,\,.01.2010 & off duly Constable {No. 3134/ Gurgaon) Angrej Singh,
-138-
recording of whose statement was grossly delayed from 28.05.20 l 0 to
25.03.2011, and who was required by Rule 18.44 of 1934 Police Rules to have
minimum escort party of two constables, but he was all alone and off duly as
well. {Total 39)
(C) All 30 persons mentioned in fist at Page 79 of this document of ponce
personnel on duly at P.S. Bhondsi Gurgoon from 11.30 A.M. on 12.01.2010 to 1.00
P.M. on 13.01.2010. (Total 30)
(D) All persons named at Serial l to 221 of list al Pages 92-94 of this document of
jail staff. medical staff and police persons etc. on duly al District Jail Bhondsi
from 5.30 P.M. on l 1.01.2010 to 7.00 A.M. on 12.01.2010, Shri Devi Dayal, Depuly
Superintendent, Shri Sahid Hussain. Deputy Superintendent. and Desh Raj,
Warder No. 1170 (oil off duly as per record provided by Jail). (Ser. Nos 1-2, 4, 6-
136, 141-164, 166-174, 176-180, 182-189, 192-198, 200-21 l, 214-22l)(Tofaf 2t0) The
highly unusual flurry of activily between 5.30 P.M. on 11.01.2010 to 7.00 A.M. on
12.01.2010 with Jail Superintendent making two visits as against only one visit of
!be Deputy Superintendent and most of the Assistant Superintendents. as also
completely bizarre FOUR visits of Sh. Rom Kumar. Warder No. 1547. which point
to crisis in health of la!e Krishan Kumar. UTP between 2.00 A.M. and 06.00 A.M.
on 12,01.2010. but he was only taken to hospital alter 06.45 AM and he slated
"he was not having any Information about untowards Incident wllh
krishan@Kanwarlg" as reported in magisterial inquiry report. Medical was stated
to be done but was found not done by removing clothes and jomotalashi was
stated to be done by two persons but one of them is found not even to be on
duly as per record provided by Jail. and jomotalshi was never conied out is also
fully proven by recovery of banned items from the body in post mortem carried
out on 13.01.2010. This points to clear suppression of evidence and alleged
complicily of Sh. R.K.Yodov, Jail Superintendent with the then State Minister of
Home. Horyona. Sh. Gopal Kondo who also lives in Gurgoon and was on good
terms with Sukhbir Kotorio. Stole Minister of Horyana from Gurgoon, who has
allegedly been implicated in magisterial inquiry report dated 02.04.2011.
(ft'J'.'lY},o,yr,,doctors of Civil Hospital Gurgaon named in list at Page 95 of this
l~-~,
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•
~~J~!Jlrh Dr. Vivek Garg, Civil Hospital Gurgaon. C.M.O.. Civil Hospital
-139-
lo1
Gurgaon and officiating C.M.O. Civil Hospital Gurgaon on 12.01.2010. (Totol 7)
For alleged gross failure to record body temperature at 7.35 A.M .. and aUeged
failure to follow all other NHRC Guidelines for speedy post mortem, video
recording etc. Alleged dereliction of duty by delaying post mortem by 26 hours
against request of inquiry magistrate at 2.00 P.M. on 12.01.2010 under police/
Haryana Ministers pressure. Alleged dereliction of duty by releasing dead body
without permission of inquiry magistrate at about 1.00 P.M. on 13.01.2010 under
police / Horyana Ministers pressure. Alleged dereliction of duty by neglecting to
mention bruise marks noticed by inquiry magistrate on the dead body and duly
photographed at about 2.00 P.M. on 12.01.2010. All the above amount to
destruction of vital evidence and deep rooted conspiracy io destroy evidence
of crime punishable only with death sentence under Section 302I.P.C.
(F) All 15 persons named in list at Page 83 of this document of poice personnel
on Escort Guard duty at Sessions Court Gurgaon from 10.30 A.M. on l 1.01.2010
to 5.35 P.M. on 13.01.2010. (Total 15)
(G) Naib Court Jagdish posled in Sessions Court Gurgaon on l I.0l.2010. {Total
1)
(H) Sm! Kiron Lohia posted in Sessions Court Gurgaon on 11.01 .201 o. (Total 1)
(I) Haryana Ministers of State, Shri Sukhbir Kataria and Shri Gopal Kanda for the
reasons as per details above. (Total 2)
(J) Total of all persons (A) to (I) is 345.
Place: Gurgaon
Date: 12.06.2011
Smt. Parvesh Katoria
Applicant
Copy to:
District & Sessions Judge
Sessions Court
~rrl\Wfl,9
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PHHC,Chandlgart,
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47
UST OF FIRST EIGHT WITNESSES
1. Sh. Suhos Chakma, Director National Campaign for Prevention of Torture,
Asian Centre for Human Rights, C-3/441-C, Janakpurl New Deihl 110058.
lo) To assist the court in establishing the fact whether or not mandate of
Secy Gen NHRC Letier No. 66/SGiNHRC/93 dt 14.12.1993 to all Chief
Secretaries on the reporting of custodial deaths within 24 hours by District
~olt% ~ 19~slrates/Superintendents of Police of the concerned District was
I.,,.,.,.,,
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~~~t'.~11a~~red to 1n this case .
-141-
'-1•
(bl To indicate his willingness or otherwise to assist the court as amicus
curiae in view of grave importance and the greal difficulties likely to be
encountered in establishing the true facts of this case.
(c) To indicate ability or inability of National Campaign for Prevention of
Torture, Asian Centre for Human Rights to set up a nationwide free to call
helpline, free SMS and unlimited webspace to enable upload of videos
and photographs of custodial_lorture from alert citizens anywhere in India
and estimated costs thereof.
2. Sh. Pawan Kumar, JMIC Gurgaan In Case Na. 335 af 21.04.2008 Stale v.
Krlshan, P.S. Sector 5 Gurgaon u/s 324/506 IPC.
(aJ To assist the court in establishing circumstances of. and necessity
of, arrest of deceased and 14 days remand lo Bhondsi Jail on
11.01.2010 in view of four point mandate for necessity of arrest as was
held .by Apex Court in Joglnder Kumar v. State of U.P. 11194 sec {4)
260.
fb) To assist the court in establishing the alleged role of Naib Court
Jagdish in this unexplained arrest case, as per reported statement of
Virender, Constable No. 719 of Sector 5, Gurgaon. in magisterial
inquiry report dated 02.04.2011.
(c) To assist the court in establishing the alleged role, ii any. of
Advocate Ajit Shearon in this unexplained arrest case. as per reported
statement of
Rashmi A«
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2013.10.07 11:~
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angina!
PHHC,Chandigarh
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l fo
Virender, Constable No. 719 of Sector 5, Gurgaon, in magisterial
(d) To assist the court in establishing alleged violation of Guideline No.
10 mandated by Apex Court in D.K, Basu v. State of West Bengal
(1997) 1 sec 416 by the grave omission to consult Advocate Sh R.S.
Saini, the advocale on record of the deceased, in this unexplained
arrest case, as reported in magisterial inquiry report doted 02.04.20\ 1.
3. Advocate Sh R.S. Saini, the advocate on record of the deceased In Cose
No. 335 of 21.04.2008 Slate v. Krlshan, P.S. Sector 5 Gurgaon u/s 324/506 IPC.
(o) To assist the court in establishing circumstances of, and necessity or,
arrest of deceased and \4 days remand to Bhondsi Jail on\ 1.01.2010 in
view of four point mandate for necessity of arrest as was held by Apex
Court in Joglnder Kumar v. State ot U.P. I 1'94 sec (4) 260.
(b) To assisl the court in establishing alleged violation of Guideline No. 10
mandated by Apex Court in D.l<. Basu v. Stale ol West Bengal (J '197) 1
sec 416 by the grove omission lo consult the advocate on record of the
deceased, in this unexplained arrest case, as reported in magisterial
4. Vlrender, Constable No. 719 of P.S. Sector 5, Gurgaon.
(a) To confront the alleged false testimony of Virender. Constable No. 7\ 9
of P.S. Sector 5, Gurgaon before Advocate Ajit Sheeran.
(b) To confront before Comploinonl No.1. the alleged false testimony of
Virender, Constable No. 719 of P.S. Sector 5, Gurgaon, as per his
reportedly false stolement that he look wife of deceased to Advocate
I
~]~'% 0/ 1.yl~heoron and Noib Court Jagdish.
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Ongina!
,,..,, "' PHHC,Chand1garh
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5. Advocate AJII Sheoran, named as per reported statement of Vlrender,
Constable No. 719 of Sector 5, Gurgaon, In magisterial Inquiry report dated
02.04.2011.
(a) To confront Virender, Constable No. 719 of P.S. Sector 5, Gurgaon,
with his alleged false testimony in the magisterial inquiry report dated
02.04.2011
49
that he took wife of deceased to Advocate Ajit Sheeran and Naib
Court Jagdish.
6. Nalb Court Jagdlsh c/o Sh. Pawan Kumar, JMIC Gurgaon In Case No. 335 of
21.04.2008 Stale v, Krlshan, P.S. Sector 5 Gurgaon u/s 324/506 IPC.
(a/ To assist lhe court in eslabfishing the alleged role of Naib Court
Jagdish in this unexplained arrest case. as per reported statement of
Virender, Constable No. 719 of Sector 5, Gurgaon, in magisterial inquiry
report doted 02.04.2011.
(b) To confront the alleged false testimony of Yirender, Constable No. 719
of P.S. Sector 5, Gurgoon, as per his reportedly false statement that he
took wife of deceased to Advocale Ajit Sheeran and Naib Court
Jogdish.
7. Sh. Mukesh Rao, Duly/Inquest/ Inquiry Magistrale In alleged custodial death
of Krlshan Kumar on 12.01.2010.
{a) To assist the Court as and when required during testimony by oil
witnesses who appeared before the inquiry magistrate.
Rashmi
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,~-~" PHHC,Chandigarti
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(bl To ascertain whether immediate report of odditionol delay of 19
hours in post mortem in violation of his specific order to carry out post
mortem given on the spot ot 2 P.M. on 1201.2010 to doctors of Civil
Hospital wos mode to his higher authority upto High Court, on 12.01 .201 O;
whether ony report wos mode to his higher authority upto High Court
oboutviolotion of Chairperson NHRC letters dt 10.08.1995 & 27.03.1997 to
Chief Ministers of States on the video filming of post-mortem exominotions
in coses of custodial deaths ond for carrying out post mortem ol the
earliest opportunity for proper assessment of "Time since deolh" / "the
lime of death",.
(c} To oscertoin whether failure of Joi! Superintendent to timely intimate
the inquiry mogistrofe that whereas case wos of P.S. Sector S, Gurgoon,
ond whereas Gurgoon Court Escort should hove left deceased ot Jail, it
was actually Constable No. 3134 Angrej Singh of P.S. City, Gurgoon, who
had left deceased in o bad condition ot Joi/ at about 5.35 P.M. on
11.01.2010, whereas case wos of P.S. Sector 5, Gurgoan ond whether ony
periodic report was made to his higher authority upto High Court. about
such omission.
50
(d) To oscertoin persons responsible for excessive delay of 14 months in
the attendance before inquiry magistrate of Constable No. 3134 Angrej
Singh of P.S. City, Gurgaon, who was finally examined only on 25.03.2011,
and whether any periodic report was made to his higher authority upto
High Court of this gross failure.
(e) To ascertain whether immediate report of extensive bruises, as
observed by him and photographed by Constable No. 1088 Shri Kuldeep
fo'tt%,?i/11i!l1 of P.S. Bhondsi, Gurgoon at about 2 P.M. on 12.01.2010 was made

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•Jlilli. Copy Of the
~ ~~~t.~hai&?oOO higher authority upto High Court, on 12.01.2010. .
~"""'
-145-
(f) To identify the photographS and testify as to extent of bruises observed
at 2 P.M. on 12.02.2010 on the body of deceased along with Constable
No. 1088 Shri Kuldeep Singh of P.S. Bhondsi, Gurgaon,
8. Constable No. 1088 Shrl Kuldeep Singh of P.S. Bhondsl, Gurgaon.
(a) To identify lhe photographs and testify as lo extent of bruises
observed al 2 P.M. on 12.022010 on the body of deceased along with
Sh. Mukesh Rao, Duly/Inquest/ Inquiry Magistrate in alleged custodial
death of Krishan Kumar on 12.01.2010.
(bl To provide dated documentary evidence of providing the set of 15
photographs to his superior officer at P.S. Bhondsi on or about 13.01.2010,
as required vide CrPC 168 and Rule 14.5 of Punjab Police Rules, 1934,
Volume II (as applicable in Haryana State, Reprint Edition 2008 amended
upto 31.03.20081
"l 4.5 Channel of communication. The usual channel of
communication between enrolied and gazetted officers is through
their immediate and intermediate superiors."
51
LIST OF JUDGEMENTS & STATUTES
1. Punjab Police Rules, 1934 (Haryana)
2. Haryana Police Act, 2007
3. Indian Penal Code, 1860
4. Criminal Procedure Code, 1973
5. Indian Evidence Act, 1872
6. Prabhakar Pandurang v. Stole of Maharashlra 1966 AIR 424
;J}~-Jt\'?twn Patnaik v. State of A.P. 1971 AIR 2092

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•.U.f[-;_ coe_y..52r.,_the
~~!le':l'>l.fi1if.3~Raotpothyv. P.L. Dani 1978SCC (2) 424
""""''
-146-
9. Tuko Rom v. State ·of Maharashtra 1979 sec 12) 143
10. Rom Loi Norong v. State (Delhi Administration) 1979 sec (2) 322
11 . Prem Shanker Shukla v. Delhi Administration 1980 sec (3) 526

12. Francis Coralie Mullin v. Administrator. Union Territory of Delhi 1981 AIR 746
12. People's Union for Democratic Rights and Ors v. Union of Indio 1982 AIR 1473
13. Sheela Barse v. State of Maharashtra 1983 CrLJ 1923 (Del)
14. D.J. Vaghelo v. Kantiboi. 1985CrLJ 974 (Gui)
15.MukeshKumorv.Stote, 1990CrLJ 19230! 1925
16. Slate of Haryona v. Bhojon Lai 1992 AIR 604
17. Joginder Kumar v. State of U.P. 1994 sec (4} 260
19. State of Madhya Pradesh v. ShyamsunderTviwedi 1995 sec (4) 262 at 273
20. Citizen for Democracy v. State of Assam 1995 sec (3) 743
21. Bhoi Josbir Singh v. State of Punjab, l 995 CrLJ 285 [P&H)
22. D.K. Basu v. State of West Bengal 1997 sec (1) 416
23. Bondhua Mukti Marcha v. Union of India 1997 sec (1O) 549
24. A.K Sahdev v. Ramesh Nonji Shah 1998 CrLJ 2645 al 2650 (Born.)
25. Shakilo Abdul Gofor Khan v. Vasanllraghunoth Dhoble 2003 sec (7) 749
26. Solem Advocate Bar Association v Union of Indio 2005 sec (6) 344
27. Munshi Singh Gautam (D) & Ors. v. State of M.P. 2005 sec (9) 631
28. K.H. Shekorappo v State of Karnotaka 2010 {3) SCR 883
29. Kunga Nima Lepcho v. State of Sikkim 2010 sec (2) (Cri) 878
30. Rubabbuddin Sheikh v. State of Gujarat 2010 sec (2) (Cri) 1006
31. Mehboob 8atcho v. Slate rep by Supdt of Police Cr App. No. 1511 of 2003
decided on 29.03.2011 (SC)
32. Bhogwon Dass v. Slate (NCT) of Delhi in Cr App. No. 1117 of 2011 decided
on 09.05.2011 {SC)
33. Punjab & Horyona High Court Bar Association v. State of Punjab 1994 sec (1)
616
li2hrn;
2013.10.07 11:59
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~ lt!l,?'"CUMENTS (ATTACHED}
-147-
II 5 1r1
(I) INQUIRY MAGISTRATE REPORT DT 02.04.201 l IN CUSTODIAL DEATH CASE P.S.
BHONDSI OT 11.01.20!0 (RTI Reply)
(2) PRIVATE COMPLAINT TO P.S. BHONDSI FOR FIR 23.04.2011
(3) RTI Reply Gurgaon Police dl 06.05.2011
(4) RTI Reply Gurgaon Police dl 10.06.2011
(5) RTI, PIO Sessions Court, Gurgaon dt 10.06.2011
(6) Prisoners death-needle of suspicion points of politicians, cops, doctors (Daily
Bhaskar 30.04.2011)
(7) Judge for probe by independent agency in Gurgaon custodial death (The
Tribune 30.04.2011)
(8) Judges report pins murder on minister top cops {HT Gurgaon 01.05.2011)
{9) RTI Reply, District Jail Bhondsi dt 01.06.2011
{10) RTI Reply, General Hospital, Gurgaon dt 03.06.2011
(11) RTI to SPIO, District Jail, Bhondsi di 04.06.2011
(12) RT! to PIO Punjab & Haryana High Court dt 08.06.201 l
(13) Emails dt 14.01.2010 & 22.04.2011
Jal.4<, Leiter to NHRC dt 28.05.2011

l01'.f.1io.OI
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11:59
PHHC,Ch.Jndig<1rh c-r ~
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-55-
Annexure P- '§
From,
The Superintendent,
To,
The SHO,
Police Station Bhondsi (Gurgaon)
No............... Dated ................. .
Subject: Regarding the Viscera report/ final opinion about the
cause of the death of deceased Krishan @ Kawaria s/o Ram
Parshad. Expired on 11/12-1-2010 at G.H. Gurgaon.
Kindly refer to NHRC, New Delhi Case NO. 181/7/5/2010-
AD/ UC/M-5 on the subject cited above.
It is intimated that the Viscera report/ final opinion about
the cause of the death of above said under trial deceased has
not been received from your office till date. It is revealed from
G.H. Gurgaon that Histopathological and chemical analysis
reports alongwith final opinion about the cause of death have
already been handed over to A.S.1. Shrichand of your police
station by G.H. Gurgaon. The NHRC, New Delhi, The Director
• f~!r~f 9 of Prisons, Haryana, Sector-14, PanchkuJa and District

JliliL §':FaYn~r the
~ PHaC,Ch~ndigarh
,~,,, Magistrate Gurgaon is pressing hard for the above said reports.
-56-
• ~ 1(7
Hence you are requested to handover the above reports to
the bearer of this letter. Please treat it as most urgent.
Sd/- Superintendent
Endst No. 7737 Dated: 29-6-2011
1. A copy of the above is forwarded to the Senior
Superintendent of Police (Custodial Death Cell), National
Human Rights Commission, Faridkot House, Copernicus
Marg, New Delhi for information please.
2. A copy of the above is forwarded to the Director General of
Prisons, Haryana, Sector 14, Panchkula for kind
information please.
3. A copy of the above is forwarded to the District Magistrate,
Gurgaon for kind information please.
Sd/- Superintendent
(True Copy)
Rashrni
2013.10.07 11:59
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Original
PHHC,Chandigarh
-148-
f/5y
Annexure P-~
No. 27936 L.81. Gen (3)
From
The Registrar General
Punjab and Haryana High Court
Chandigarh .
To
The District & Sessions Judge,
Gurgaon.
Date Chandigarh the 6/8/11
Sub: Regarding conducting of Magisterial Inquiry/ Inquest

Report at Government Hospital, Gurgaon, undertrial prisoners
Krishan @ Kanwaria s/o Ram Prasad, age 50 years, R/o 8 Biswa,
P.S. Sector-5, Gurgaon, District Gurgaon, expired on
11/12-1-2010 at Government Hospital, Gurgaon.
Sir,
I am directed to refer to your letter No. 7382 dated
6-4-2011 cited as subject and to forward herewith a copy of
enquiry report in original and to say that Hon'ble the Chief
Justice ano Judges have been pleased to require you to take
necessary action in the matter at your own level.
Yours faithfully,
Sd/- Asstt. Registrar (Genl.)
For Registrar General.

~ Rashm1
'm
Jl11il_ TSl~i,aA; above.
Ortgi~~I
~ PHHC,Chandigarh
=m
-234-
1_81 Ger.{3}
NO
The Regi:>t;ar G-?.ne"JI

Pun}ab df"ld Hai .,;1; ,. ':""\I':'·, .r·
Chandigarh.
TO
The District & Ses9on~ luJ:;1~,
Gurgaon.
Sub Regarding condu, 1.ing of Mag1stcria: \nquiryJJnquest Repi.1rt ,ii

Government Hosp1l~11, c.. urqaa_n, vflJ'..?rtnal pri";One::rs Krist1;,1!'\ ~- ....:nw:!:•<1
s/o Ram ?rasaU, aqe SO yi.!3rs. flto 8 B1swa, P.S. Sector-S. G-J!g,Mn.
District Gurgaon, expired ,,n l,l/12.01 .2010 at Government Ho~~"·ai,
Gurgaon.
vou to t3ke necessary action .n 1.he rr,.,Ht:1 ot your own lcv\"~;.
'fours fait~fuUy,
Encl$ ,As abOVC,
~ /lv:d-JJ
.........._ _
Rashm;
2013.10.07 11:59
~ ~ ;::::::------------------------
•·:
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PHHC,Chandiga
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-149- 11
JSJ>
Annexure P- { (J
Office of the District and Sessions Judge, Gurgaon
No. 20936/J.9 Dated: 2-9-11
To
The District Magistrate,
Gurgaon.
Subject: Enquiry report regarding the death of under-trail male
prisoner namely Krishan @ Kawaria s/o Ram Prasad, aged SO
years, R/o 8 Biswa, P.S. Sector-5, Gurgaon, District Gurgaon,
expired on 11/12-1-2010 at Government Hospital, Gurgaon.
Sir,
In continuation of this office letter no. 8762/ J.9 dated
20-4-2011, enclose please find a copy of letter no. 27936 L.81
Gen (3) dated 6-8-2011, received from Hon'ble High Court, for
taking necessary action in the matter.
It may be mentioned here that Enquiry report alongwith its
enclosures (containing pages 223/446) regarding death of
under-trail male prisoner Krishan @ Kanwaria s/o Ram Prasad

Rashmi
2013.10.07 11:59
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A ,,.,,... ..,.,
Original
PHHC,Chandigarh
-150-
1"' (2(
aged 50 years, R/o 8 Biswa, P.S. Sector-5, Gurgaon, has already
been sent to you vide letter under reference.
Sd/-
District and Sessions Judge,
Gurgaon.
(True Copy)
R,shmi
I ~-,.,
2013.10.07 11:59
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Original
PHHC,Chandigarh
-235-
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I Sub: Enquiry repon regardin,J the d-ea1h of un<leMrail male prisoner namely
Krishan <@ Karnvaria s;o Ran, PrJsad, aged 50 years, Rfo 8 Biswa,
P.S. Sector-S, Gurgaon Otsnicl Gurgaon. expire-0 an 11/12.1.2010 rll
Government Hospital, C-urgaon,
Sir,
In continuation of 1his office len•r No.8762/J.9 dated 20.4.2011,
enclose please Rod a copy o! letter No.27956 L81. Gen(3) dated 6.8.2011,
re,:,eived trom Hoo'bie High Coun., fo1 taking nec.essatY ac1ion in the maner.
It may be mentioned here !hat Enquiry repon alongwith its enclo::;ures
{containing pages 223/446) regardin!~ deat~· or unde1-1rail male p1isoner Kristian$·
Kanwaria S/o Ram Prasad, aged 5(• veaJs, R.!o 8 8iswa. P.5.5&:icr-5, G•..H~'.!.cir
has already been sent to you "lde lener under refer12m:e.
\!:_,,),~·
Oistri<..l dr16 Sessicn!i Judge.
Gurgaort ct-
Rashmi
----- 2013.10.07 11:59
• Tl"\le scanned
Copy Of the
Onginal .,
'"'""'' PHHC,Chandigarh
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1948 SCC Online Pat 77 : AIR 1949 Pat 222 (FB) : 1949 Cri LI 474
Patna High Court

Full Bench
(BEFORE AGARWALA, C.J. AND DAS AND NARAYAN, JJ.)
Tl1e King
Versus
Parmanand and others ... Accused.
Criminal Misc. Case No. 488 of 1948
Decided on November 5, 1948
Page: 223
The Judgment of the Court was delivered by

AGARWALA, C.J.:- This rule was issued by the Criminal Bench calling upon two
accused persons, who were discharged by a Magistrate acting under Section 494 of the
Cr PC, and the Deputy Commissioner of Singhbhum, to show cause why the
Magistrate's order should not be set aside and the prosecution proceeded.
2. Notice of this rule was given to the Advocate-General in order that the Provincial
Government should also have an opportunity of being heard. The material facts were
as follows; On 18th March 1947, a first information was laid by Karuna Nair, Assistant
Store-Keeper of Jagselai, alleging that 88 bags of rice had disappeared from the Tisgo
Grain Store. This rice was public property and was not due to be Bold as it had not
been classified by the Provincial Govern, jnent authorities. After investigation the
police submitted a charge-sheet against six persons, of whom five, including
Parmanand Marwari and his cousin Shamlal Marwari, were sent to the Sub-divisional
Magistrate in custody. The sixth accused person Parbhu Marwari was alleged to be
absconding. The offences mentioned in the charge sheet were offences under ss. 881,
411 and 120B, Penal Code, and an offence under the Hoarding and Profiteering
Ordinance.
3. The police investigation disclosed the following facts: The rice in question was
stocked in the godown of Messrs. Tatas at Garabasa for the Rationing Department. On
14th March 1947, the then store keeper, who was the accused N.K. Ghosh, proceeded
on leave, making over charge to the first informant, who took charge without
verification of the stock. On the 27th a clerk of the department inspected the stock
and discovered that out of 200 bags of rice, 88 were missing. Of the missing 88 bags,
one was marked with the figures 2/16 and the remaining 87 with the figures 2/19,
these figures representing the weight in, inaunds and seers. The inspecting officer
ascertained that the accused N.K. Ghosh had loaded 88 bags of rice on two trucks on
the 14th, and that he was assisted by the accused Chandi Charan Iche. The trucks
belonged to the accused Parbhu Marwari. The house of Chandi Charan lche was
searched, and 10 empty guny bags with the mark 2/19 and one with the mark 2/16
were found, Iche is the proprietor of a grain shop. The investigating officer examined
the coolies who had loaded the two trucks and ascertained that they were driven to
the house of Parmanand and the bags stocked there in a godown. This godown was
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searched on 24th March, but all that was found there were bags of cement and some
scattered grains of rice. In consequence of certain confidential information which he
received that the stolen rice had been removed to the coal depot of accused
Parmanand and Shamlal the investigating officer searched the depot and found 24
bags of rice, of which two bore the mark 2/19. After the search of the coal depot the
officer went to the house of Parmanand and found him about to slip away. The officer
arrested him and he then made a statement and took the investigating officer, the
Superintendent of Police and the Divisional Inspector to a brick kiln belonging to him,
where he pointed out 45 bags of rice 7 of which bore the mark 2/19. The conclusion
which the Superintendent of Police arrived at was that there was a conspiracy in
pursuance of which N.K. Ghose and C.C. Iche stole the rice from the Jugselai godown
and sold it to Parmanand through a notorious blackmarketeer known as Madan Marwari
and his gomasta Parbhu Marwari. Parmanand, however, did not appear personally in
the transaction, the rice being sold to one of his employees.
Page: 224
4. These being the facts ascertained during the police investigation which was
closely supervised by the Divisional Inspector and the Superintendent of Police, the
Sub-divisional Magistrate quite rightly decided that they required judicial
investigation. Eventually, on the application of the accused, the case was transferred
for trial to the Court of Mr. R. K. Lall, a Magistrate of the first class, on 7th September
1947, and on 9th summonses were issued to all the accused, who, had in the
meanwhile, been released on bail, fixing 20th for the trial. On the last mentioned date
there is the following entry in the order sheet:
"In accordance with the Government letter No. 213 P.P.R., Government of Bihar,
Political Department (Police Branch), dated 17th September 1947, the case is
adjourned to 3rd November 1947."
5. On 3rd November, the entry in the order-sheet is:
"No further instruction has been received. To the 15th December 1947. Accused
as before."
6. On the same day there is a marginal note:
"Record and case diary sent to Deputy Commissioner. Vide this office letter No.
5107G, dated 3-12-47."
7. There is no other entry in the order-sheet for the nest six months, when, on 13th
May 1948, there is the following entry:
"The record had been submitted to Government in connection with the
application praying to withdraw the case. The record has now been received back
with a copy of letter No. 518 L.R./1.M. 25/48, dated 14th, April 1948, and with
D.C.'s order dated 3-6-48 to the effect that the case against Parmanand and
Shamlal is ordered to be withdrawn.
Issue summons to all the accused of the case to appear on 20th of May 1948,
when effect of the order withdrawing the case against Babu Parmanand and
Shamlal will be given and steps will be taken against the rest of the accused
persons."
8. The record reveals what had been happening between the last entries in the
order-sheet to which reference has been made, namely, 3rd November 1947, and 13th
May 1948. On 4th September 1947, Parmanand and Shamlal had sent a petition to the
Prime Minister of the Province which is here reproduced in extenso:
Printed For: Mr. Sarvadaman Oberoi
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"To
The Hon'ble Prime Minister of Bihar, Patna.
Reference Prayer for withdrawal of Police Case in Jamshedpur against Babu
Parman and and Shamlal (before the S.D.O. under S. 411, Penal Code G. R. Case No.
227 of 1947).
Sir.
We have the honour to pray to you for withdrawal of a Police case against us in
Jamshedpur now pending before the S.D.O. under S. 411, Penal Code (receiving
stolen property) arising out of our lawful and bona fide purchase for value of rice for
over 2000 labourers whom we supply to industries in and around Jamshedpur. The
circumstances are as follows:
( 1) We are the firm of Messrs Ramdas and Sons of Jamshedpur who deal in
labour contracts, brick manufacturing and other building contracts for about
half a century and 40 years ago the first foundation of the Tata Factory was
laid with our bricks.
(2) We deal with about 3000 labourers from out firm, out of which over 2000 are
employed in Jamshedpur and the suburbs in a almost all the Industries. Due
to the fluctuating nature of the brick manufacturing concern we get a sudden
influx of 500 to a 1000 labourers and we are required to supply them all with
rations for their existence.
(3) Even now we are the largest labour and building contractor of Tatas.
(4) We buy rice outside the rationed area and give it to our outside labourers,
otherwise we cannot maintain them.
(5) On 16-3-47 we purchased a quantity of rice from Praboo Marwari (of Madanlal
Marwari) against a cross cheque (and a part in cash) for which we hold a
receipt of full satisfaction. Our purchase was absolutely bona fide without
suspicion in our mind which constitute any offence of any kind.
(6) On 18-3-47 on an F.I.R. it was discovered by Police that our rice came from a
stolen stock of the Government Garabassa Godown which theft took place on
14-3-47. There is no suggestion (as there cannot be) of our being implicated
in any way in the F.I.R.
(7) We have now been ran in by the Police under S. 411, Penal Code, for having
been in possession of what is alleged to be stolen property (of which we had
no knowledge even suspicion and which we purchased for value against
receipt in a bona fide deal).
(8) We are a very respectable Bihari family of Jamshedpur and our proprietor,
Babu Parmanand is the President of the Local Bihari Association; Shamlal is
his cousin.
In the above circumstances there cannot be any conviction in any Court against
us but if the case continues it will mean a great harassment, dislocation of the
important Industrial contracts in hand and also labourers in these Industries, not to
speak a great loss of reputation. We plead completely not guilty and pray that your
honour will accept our contention.
We, therefore, pray that your honour will kindly stay the proceedings in the Court
(S. D. O.J.) and call for the entire record for persual. We feel certain that your honour
will be convinced. We shall be grateful if a chance is given to our counsel to explain
the case to your honour when records arrive before passing final orders.
Patna, the 4th September, 1947. Local We have the etc. Sd/-Illegible, for and on
Address of our Counsel for reply: behalf of Parmanand Shamlal,
C/o S.N. Bhattacharyya, Esq., "The Jamshedpur."
Retreat" Patna.
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9. The last paragraph of this petition, which was apparently drafted by a lawyer, as
it was requested that the reply be sent to Mr. S.N. Bhattacharya, an advocate, is
significant. It requested the Prime Minister to stay the proceedings which were
pending in Court and to call for the record of the case for perusal, neither of which the
Prima Minister or any other Minister has any authority to do, The fact that these
prayers could be put in a petition drafted by a lawyer shows how widespread the belief
has become that Ministers can interfere in judicial proceedings by issuing stay orders
and calling for judicial records. From cases which have come to the notice of this Court
it is unfortunately only too true that there are grounds for holding this belief. It
requires, therefore, to be stated
Page: 225
now, and most emphatically, that no executive officer or authority hag any power to
issue a fiat staying proceedings in a Court of law, or to require a Court to hand over its
judicial record. I shall refer to this matter later in this judgment.
10. It will be observed that in this petition there was no denial that the sacks of
rice which formed the subject-matter of the case against the accused were stolen
property, or that they were recovered from the brick kiln of the petitioners, or that at
the time they were removed from the petitioners store-room to their brick kiln the
petitioners knew that the police were searching for them in consequence of Karuna
Nair's first information. The substance of the petition was not that the petitioners did
not know that an offence had been committed with respect to these sacks of rice at
the time of their removal from the store-rooms to the brick kiln, but that they did not
know this fact when the sacks were delivered at their store godown. The significance of
this will appear later.
11. On 17th September 1947, Mr. Pillai, the then Chief Secretary to Government,
issued the following letter to the Additional Deputy Commissioner of Jamshedpur:
"I am directed to enclose a copy of a petition dated the 4th September, 1947,
from Babus Parmanand and Shamlal and to request you to submit your report to
Government with the least possible delay. I am also to request you to take steps to
get the case adjourned until further orders."
12. The Deputy Commissioner forwarded this letter to Mr. S.N. Singh, the Sub-
divisional Officer of Dhalbhum, with the request for a report by the 23rd, and with the
following endorsement on it: "The case should be adjourned until further orders." The
Sub-divisional Officer sent Mr. Pillai's letter with his own endorsement on it to Mr. R.C.
Prasad, the City Magistrate of Jamshedpur, with a request to him to prepare a report
by the 23rd. The City Magistrate was directed to examine the police papers carefully,
to compare them with the contention of the petitioners and to report to Government
whether the case was likely to succeed. The City Magistrate was also instructed to ask
for an adJournment of the case for a month or six weeks "quoting the number of the
Government letter on the order-sheet". The City Magistrate, on receipt of this letter,
added his own endorsement to it, directed to the Bench Clerk of the Court in which the
case was pending, viz., the Court of Mr. Lall: "Show Mr. Lall who will please adjourn
the case as directed."
13. This letter and the endorsement on it ex-plain the entry in the order-sheet of
20th September 1947, adjourning the case "until the 3rd of November in accordance
with Government letter No. 213. Happily, neither the Sub-divisional Magistrate nor Mr.
Lall fell into the error of adjourning the case until further orders" which they were
invited to do by the Chief Secretary to Government and the Additional Deputy
l Z7
Page 5 Wednesday, December 19. 2018
Commissioner.
14. Having, however, advertently or inadvertently, exercised judicial independence
in this matter, on the next date fixed for hearing, namely, 3rd November 1947, Mr. Lall
abandoned any attempt to maintain a judicial attitude in the case. On the 3rd of
November the case was again postponed till the lath of December, the only ground
being: "No further instruction has been received." Mr. Lall apparently is under the
impression that in the conduct of criminc1I cases his procedure is to be regulated by
instructions he receives from Government. The sooner his mind is disabused of this
conception of the administration of justice the better. But it is to be feared that this
attitude on the part of the Magistrate in this province will persist until there is a
complete and unequivocal separation of the judicial from executive functions. In the
margin of the order-sheet of this date is the entry relating to the sending of the record
and the case diary to the Deputy Commissioner. This note appears to have been made
by the Sub-divisional Magistrate, for it refers to his letter no. 5107G. addressed to the
Deputy Commissioner. This was a fetter in which the Sub-divisional Magistrate
summed up the report of the City Magistrate and made his own observations. In it he
enumerates what he calls the points against Parmanand and Shamlal and the points in
their favour. These were as follows:
"(a) Points against Parmanand and Shyainla/.
(i) Parmanand's confession that he kept the rice bags in his secret godowns and
he got the bags removed when he knew them to be stolen property, and also
his action in pointing out the place where the bags were kept.
(ii) Parmanand's failure to inform the police (on the day of the search of his
premises) as soon as he came to know that the rice was stolen property.
(iii) Shyamlal's statement before the police on 24-3-1947 that morning the stock
had been removed under the order of Parmanand from the previous godown to
the Dhatkidih Coal depot of Shyamlal.
(b) Points in favour of Parmanand and Shyam/al.
(i) On 24-3-1947, when the Coal depot of Shyamlal was searched, 24 bags of
rice were found out of which only 2 of the bags bore the mark 2/19. It is the
prosecution case that out of the stolen 88 bags of rice, some were marked
2/16 and the rest were marked 2/19. No bag with 2/16 mark seems to have
been recovered.
(ii) Out of 45 bags of rice recovered from the brick kiln pointed out by
Permanand, only 7 bags bore the mark 2/19 as Mr. R.C. Prasad reports. No
bag with 2/16 mark seems to have been recovered.
(iii) Parmanand himself pointed out the brick kiln, where 4-5 bags of rice were
kept.
Page: 226
(iv) Parmanand made the payment of the cost of ties through cheque No.
BC/2/29659 drawn on the Imperial Bank of India on 15-3-47 in favour of
Prabhu Dayal for Rs. 2500. This cheque was cashed on 15-3-47 and Prabhu
Dayal himself accepted the payment in the bank as the bank report shows.
(v) Permanand and Shyamlal have not been named in the P.I.R."
15. This report apparently led Government to decide not to proceed with tl1e
prosecution of Parmanand and Shamlal, for the next entry in the order-sheet is that of
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13th May 1948, which records that the record had been received back with a letter
from the Deputy Commissioner to the effect that the case against Parmanand and
Shamlal "is ordered to be withdrawn." 20th May was fixed for the next step in the case
to be taken. The only entry is:
"Issue summons to all the accused of the case to appear on 20th of May 1948,
when effect of the order withdrawing the case against Babu Parmanand and
Shamlal will be given and steps will be taken against the rest of the accused
persons."
16. Here, again, is evidence that Mr. Lall now regarded himself merely as an officer
for registering the orders of Government and was quite unaware that when it is
intimated to the Court that Government does not propose to proceed with the
prosecution, the Court has to exercise its judicial discretion before deciding what to
do. It is quite clear from the entries in the order-sheet of 13th May that Mr. Lall
considered that Government had ordered the withdrawal of the prosecution, and that
he had nothing further to do but to give effect to that order. That impression is
confirmed by the entry in the order-sheet of 11th June which stated:
"The case against Babu Parmanand and Shamlal is withdrawn under Section 494
of the Cr PC, and I, therefore discharge them under S. 494."
17. 11th June was not a date which had been fixed in the case. On 20th June the
Magistrate being absent the case was adjourned. The next date fixed for hearing was
21st June. Why, therefore, an order was passed on the 11th is not apparent.
18. As there seems to be a misapprehension with regard to the so-called
withdrawal of a case from the jurisdiction of a Court before which it is pending, I shall
now refer to s. 494 of the Code. That section provides:
"Any Public Prosecutor, may, with the consent of the Court, in cases tried by a
jury before the return of the verdict, and in other cases before the judgment is
pronounced, withdraw from the prosecution of any person, either generally or in
respect of any one or more of the offences for which he is tried, and upon such
withdrawal (a) if it is before a charge has been framed, the accused shall be
discharged in respect of such offence or offences; (b) if it is made after a charge
has been framed, or when under this Code, no charge is required, he shall be
acquitted in respect of such offence or offences."
19. The first thing to be observed with regard to the language of this section is that
it does not authorize the withdrawal of a case. It merely authorizes the Public
Prosecutor to withdraw from the prosecution, and that only with the consent of the
Court. The Court is not bound to give its consent. As the effect of the withdrawal of the
Public Prosecutor with the consent of the Court is either discharge or acquittal of the
accused, as the case may be, the giving or withholding of, consent is a judicial act and
the discretion conferred on the Court must be exercised judicially. There is a difference
of judicial opinion in the; High Courts as to whether the Magistrate is required to
consider the validity of the grounds on which the Public Prosecutor asks permission, to
withdraw from a prosecution. I do not propose in the present case to enter into that
controversy. I think it may be assumed that, when the Public Prosecutor has been
instructed that there are reasons of State, or it has been discovered that evidence will
not be forthcoming, or that the evidence that is forthcoming is unreliable, the Court
would be justified in accepting, such a statement from the Public Prosecutor and
granting consent for his withdrawal from the prosecution. In the present case, the
petition to the Prime Minister does not challenge the truth of the evidence on which
the police relied in submitting the charge-sheet, nor is it alleged that the prosecution
had been lodged out of vindictiveness. Nor, on the facts of the case, is there any
reason to suppose that there was any reason, of State for not allowing the prosecution
to proceed. The substance of the petition was merely that, on the available material,
there was no evidence that the petitioners knew the rice to be stolen property at the
time they took delivery of it. That was essentially a matter of inference to be drawn by
the Court from all the circumstances of the case, and the Magistrate in charge of the
case was obviously the proper person to decide whether such an inference should be
drawn after hearing all the evidence available. There is no justification whatsoever for
the view that the Prime Minister or any other Minister or Executive Officer has the
power to usurp the functions off the Court or to take the case out of the seisin off the
Magistrate before whom it is pending for trial. The most that the section authorizes is
that the Public Prosecutor may withdraw from the prosecution if the Court consents to
his doing so. This merely means that the Public Prosecutor may, with the leave of the
Court, discontinue his assistance to the Court. That this is the intention of the
Legislature is made clear by com-paring the language of S. 494 with the language of
s. 333, which applies only to trials before High. Courts. That section provides as
follows:
"At any stage of any trial before a High Court under this Code, before the return
of the verdict, the Advocate-General
Page: 227
may, if he thinks fit, inform the Court on behalf of His Majesty that he will not further
prosecute the defendant upon the charge, and thereupon all proceedings on such,
charge against the defendant shall be stayed, and he shall be discharged of and from
the same. But such discharge shall not amount to an acquittal unless the presiding
Judge otherwise directs."
20. Here, it will be observed, the consent of the Court is not necessary. Nor has the
Court any power to proceed with the hearing of the charge against the accused after
the Advocate. General has stated that he will not further prosecute it. The position is
entirely different under S. 494. The Public Prosecutor is only authorized to withdraw
from the prosecution with the consent of the Court, and the section does not provide
that the proceedings shall be stayed or terminated if the Court does not consent to the
Public Prosecutor's withdrawal. There may be cases in which the Court, on a
consideration of the Public Prosecutor's application to with-draw from the prosecution,
considers that the prosecution should proceed. In such a case the Court will be acting
within its powers, and rightly, to refuse to accede to the Public Prosecutor's request to
withdraw from the prosecution. If after such refusal, the Public Prosecutor declines to
assist the Court, the Court has power under S. 495 to permit the prosecution to be
conducted by any other person, either personally or by a pleader. In the present
instance it is quite obvious that Mr. Lall, the Magistrate in whose Court the case was
pending for trial, did not attempt to exercise his discretion at all in considering the
application of the Public Prosecutor, That application did not disclose any grounds for
the Public Prosecutor's withdrawal from the case other than the Government's order
that the case be withdrawn, and the entry in the order-sheet of 13th May 1948,
discloses that Mr. Lall purported to permit the withdrawal of the prosecution merely in
consequence of the Deputy Commissioner's order, with which was enclosed a copy of a
letter no. 518 from the Superintendent and Remembrancer of Legal Affairs,
Government of Bihar. That letter was addressed to the Deputy Commissioner and was
as follows:
"Sir,
I have the honour to refer to your letter No. 914 dated 12th March 1948, to the
Chief Secretary to Government and to say that in the circumstances appearing from
the record the chances of a successful orosecution under S. 411. Penal Code.
13 0
against the above-named two persons seem to be remote and the above-mentioned
criminal case against them may accordingly be withdrawn.
X X X
21. On this letter the Deputy Commissioner made the following endorsement: "As
ordered by Government the case against Babu Parmanand and Shyamlal is ordered to
be withdrawn."
22. Like the trying Magistrate, neither the Legal Remembrancer nor the Deputy
Commissioner appears to have any conception of the scope of Section 494 of the Cr
PC, or they could not have used the language they did, directing the withdrawal of the
case. Furthermore, the Legal Remembrancer's letter merely states that, in his opinion,
the chances of a successful prosecution under S. 411 were remote. He does not appear
to have directed his mind to the possibility of a conviction either in respect of the
other charges mentioned in the charge-sheet, or to the possibility of a successful
prosecution of the petitioners under s. 201, Penal Code. In these circumstances,
reluctant as this Court is to interfere with the judicial discretion of a Magistrate, there
can be no hesitation in doing so in the present case as the trying Magistrate made no
attempt to exercise his discretion at all. This Court, however, would be reluctant to
direct the prosecution of persons against whom Government does not desire to
proceed, unless there is evidence which requires Judicial consideration. I propose,
therefore, to examine the report which, presumably, led to Government deciding not
to proceed with the prosecution of Parmanand and Shamlal as stated in the Sub-
divisional Magistrate's letter No. 5107G, addressed to the Deputy Commissioner.
23. With regard to the points said to be in favour of Parmanand and Shamlal, an
analysis shows that they are not convincing. The fact that only 2 of the 24 bags found
at Shamlal's depot bore the mark 2/19 and none of them bore the mark 2/16 does
nothing to explain how Shamlal came to be in possession of bags marked 2/19 which
were public property. So also is the case with the 45 bags recovered from the brick
kiln of Parmanad, 7 of which bore the mark 2/19. Nor does the fact that with these
bags of stolen rice were also bags which were not stolen help the accused, for Mr.
Prasad pointed out in his report that there was no doubt that offences under the
Hoarding and Rationing Ordinance had been committed by these persons, so that they
would have to have hiding places both for the stolen property which they had bought
and for other stocks which offended against the Ordinance. The fact that Parmanand
himself pointed out the brick kiln where the rice was concealed, so far from being a
point in his favour as the Sub-divisional Magistrate seems to have thought, is a piece
of evidence against him admissible under Section 27 of the Evidence Act. The
payment of part, of the purchase price by a cheque in favour of Parbhu Dayal is also
not conclusive of the innocence of the petitioners, for the cheque was not for the whole
amount. Part was paid in cash; so prima facie there was nothing to connect the
cheque with the purchase of the
Page: 228
stolen rice. The absence of the petitioners' names from the first information is of no
consequence at all in this case as the first informant had no knowledge of what had
happened to the rice when it was discovered to be missing from the Government
godown. On the other hand, the first point enumerated against Parmanand and
Shamlal discloses at least prima facie evidence of the commission of an offence under
S. 201, Penal Code, for, apart from Parmanand's confession, the police papers show
that it was possible to prove that the stolen rice was first kept in the petitioner's
godown, and it was only when the police started searching for it that Parmanand had it
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removed to the brick kiln, i.e., after he had discovered it was stolen property. With
regard to the charge under 5. 411, even though Parmanand's confession be
inadmissible as evidence as having been made to a police officer, the fact that he was
found in possession of stolen property soon after its theft gives rise to a presumption
under Section 114 of the Evidence Act, that he knew it to be stolen property, and the
weight to be given to this presumption was increased by reason of the fact that the
failed to inform the police on the day of the search of his premises. Then with regard
to the charge of conspiracy under 5. 120B, the facts are that the petitioners were hard
pressed to find rice for their labourers (vide the petition to the Prime Minister). The
rice was purchased by their employees for their benefit. It was stored first in their
godown and then hidden in their coal depot and brick kiln. These circumstances might
justify an inference that the petitioners were parties to a conspiracy to obtain
possession of rise which was public property. There is no reason to suppose that their
employees would voluntarily enter into a transaction which might land them in jail,
and it is not alleged that the petitioners' employees bought the rice in order to make a
profit for themselves. With regard to the third point against the accused, even though
Shamlal's statement to the police is inadmissible, it was possible to prove the removal
of the stock from the godown to the coal depot of Shamlal by other evidence. In fact
even in the petition to the Prime Minsiter the fact that it had been so removed and the
fact that it was known to be stolen property at the time of its removal are not denied.
24. It is not to be understood that the inferences indicated above are the only ones
which can be drawn from the facts. When the matter has been fully investigated
judicially, it may transpire that other inference should be drawn. I have analysed the
alleged facts merely for the purpose of showing (i) that these are matters of a serious
nature requiring investigation by an impartial judicial tribunal and (ii) that even
though a Court may not, in the circumstances, infer guilty knowledge of the
petitioners at the time the rice was delivered to them, it would still remain to consider
whether a prima facie case under s. 201 has been disclosed. It is to be clearly
understood that this analysis of the Sub-divisional Magistrate's points for and against
the two accused is not to be regarded as fettering the trying Magistrate's duty to draw
his own inferences from the facts of the case. I wou Id set aside the order of the
Magistrate withdrawing the case and discharging the accused, and direct that he now
proceed with the prosecution. The Advocate-General has assured us that the Provincial
Government does not propose to withdraw from the prosecution if this Court consider
it should proceed. I may point out, however, that even though the Public Prosecutor
should not appear in the case, the Magistrate may under s. 495, permit the
prosecution to be conducted by some one else. I do not propose to leave this case
without reverting to the matter to which I have already referred, namely, the
impression which appears to prevail that the Prime Minister or executive officers have
the power to direct the stay of criminal proceedings, or to call for the record, of
criminal cases. So far as the question of staying criminal proceedings is concerned,
there is no power whatsoever, statutory or otherwise, authorizing any one except the
presiding officer of the Court to grant an adjournment of the proceedings, and no
authority except a Court superior to the trying Court which can direct a stay of criminal
proceedings.
25. So far as the power to call for the record of criminal cases is concerned, there is
a distinction between calling for the record of a pending case and calling for the record
of a case that has been completed. So far as the latter is concerned, a Court of appeal
or revision has power to call for the record of a Court subordinate to it. The rules
governing this matter are contain, ed in chap. V of the General Rules and Circular
Orders of this Court. Paragraph 46 of those rules is explicit:
"The records of decided cases shall be retained in the record rooms of the Court
Printed For: Mr_ Saivadaman Oberoi
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to which they belong or to the superior Court of the District, and shall not be
allowed to pass out of the custody of the officers of such Courts, except when called
for by superior judicial authority, or required for the purposes of 0. 13, R. 10 of the
CPC by a civil Court. It is improper and inconvenient that records of the Courts of
Justice should be sent to public officers or functionaries. If a reference to their
contents is required, the proper procedure is ordinarily to obtain copies of the
requisite papers."
26. An exception of a limited nature has been made in favour of the Divisional
Commissioner by R. 50 which provides that when he requires the
record of a criminal case in order to satisfy himself whether Government should be

moved to direct an appeal against an original or appellate judgment of acquittal under
Section 417 of the Cr PC, the Sessions Judge should comply with the application. It is
only for this limited purpose that the Commissioner may send for the record. When he
does so, he may submit it to the Legal Remembrancer under R. 20 of the Practice and
Procedure Manual (p. 69). In no other case is the Commissioner entitled to call for the
record of a case. The only other exception is of a limited nature in favour of a
commission of inquiry appointed by the Provincial Government. Rule 61 provides that
when the Provincial Government appoints a commission of inquiry into misconduct on
part of a police officer in consequence of strictures expressed by a Court, the Sessions
Judge will forward to the commission, on requisition, the original record of the decided
sessions case in question.
27. So far as pending cases are concerned, it is arguable that the High Court or the
Sessions Judge or the District Magistrate or a specially empowered Sub-divisional
Magistrate may call for the record for the purpose of satisfying itself as to the
regularity of the proceedings of the inferior Court under S. 436. This section, however,
does not authorize the District Magistrate or Sub-divisional Magistrate to call for the
record of a pending case for the purpose of submitting it to the Provincial Government
or anyone else, and it is absolutely wrong for the District Magistrate or Sub-divisional
Magistrate to call for the record of an inferior Court for this purpose, or for the trying
Court itself to part with its record in any circumstance except for the purposes
sanctioned by the statute or the rules by which it is bound. It may happen that the
Provincial Government or its executive officers may desire to examine the contents of
the record of a case. In such an event it may, in the ordinary course, apply for certified
copies of the document which it desires to consult, or an application may be made for
inspection of the record. The rules in this respect are to be found in the General Rules
and Circular Orders of this Court, vol. I. Rule 33A of ch. !IA of these rules provides
that no record not deposited in the record room shall be inspected without the
permission of the Sessions Judge or the Magistrate to whose file it belongs. Rule 33B,
however, empowers the Sessions Judge or the Magistrate to allow inspection of a
record to public officers and to pleaders and mukhtars engaged in the case. In no
circumstance should a Magistrate permit the record of pending case to leave his
custody. He is entirely responsible for the safe keeping of the record, and no
opportunity should be created which might permit a party to entertain even the
slightest suspicion that the record might be tampered with. When a record has
improperly left the custody of the Court it might create an impression in the minds of
litigants that the record has been tampered with, and should any part of the record be
after-wards found to be damaged or missing, a very difficult situation would arise.
28. I have considered it necessary to invite attention to these rules and to legal
sec
li1/llliH¥0f
Printed For: Mr_ Sarvadaman Oberoi
position regarding the custody of judicial records because in more than one case
recently it has come to my notice that District Magistrates have called for records and
submitted them to the Provincial Government. The District Magistrate is not entitled to
call for a record for this purpose, or to part with the record of a case which he has
properly called for, and it is to be hoped that the Provincial Government itself will not
only refrain from issuing orders to District Magistrates to call for records they are not
entitled to call for, or to call for them for purposes for which they are not entitled to
call for them, but also to impress on all executive officers that they must conform to
the rules in this respect.
29. DAS, J.:- I agree. NARAYAN, J.:- I agree. But as from the arguments
advanced by the learned Advocate General and from the letter addressed to the
Deputy Commissioner by the Superintendent and Remembrancer of Legal Affairs, it
appears that the legal advisers of Government were under the impression that the
Government could order a summary or full-dress enquiry for the purpose of satisfying
themselves whether the prosecution was likely to end in conviction or not, it must be
pointed out that any enquiry with regard to a matter which is sub-judice is bound to
interfere with the even and ordinary course of justice. It is a cardinal principle that
when a matter is pending for decision before a Court of justice nothing should be done
which might disturb the free course of justice and this Court will discountenance any
attempt on the part of any executive official, however high he may be, to prejudge the
merits of a case and to usurp the, functions of the Court which has got seisin of the
case. Such a practice is fraught with immense danger, and I was surprised to hear the
learned advocate contending that a parallel enquiry could be started by the
Government. If we accede to the argument of the learned Advocate General that a
parallel enquiry can be started, we will be opening the door for contempt and
impediment in the course of justice. Once the principle is accepted that the
Government are free to hold a separate enquiry, it would be impossible to impose any
limit as to the nature and the scope of such an enquiry. This case is
Page: 230
the best instance to indicate the futility of an enquiry like this. The Superintendent
and Remembrancer of Legal Affairs, whom the Advocate General called the expert
legal adviser of Government, ordered after the enquiry had been completed that the
prosecution should be withdrawn and the letter, which he has written to the Deputy
Commissioner, does not even show that it was written under the directions of the
Government. It must be presumed that he went through all the papers before ordering
the withdrawal of the prosecution and it is evident that as a result of the enquiry he
was satisfied that the chances of conviction in this case were remote. He practically
leh no discretion to the Magistrate and said that the chances of a successful
prosecution seemed to be remote, though at that stage the only thing to be seen was
whether a prima facie case had been made out or not. The Deputy Commissioner took
his direction as the final order of the Government and wrote to the Sub-divisional
Magistrate that "as ordered by Government the case against Babu Parmanand and
Shyamlal is ordered to be withdrawn." The directions and the expert legal advice were
all wrong and the result now is that the prosecution has to proceed from the stage at
which it was closed, and the accused would be put to unnecessary harassment. It
should now, therefore, be realised that an enquiry like this has got no utility and is not
warranted by law, and that a lot of mischief can come out of it. It is bound to lead to
comments on a pending case, and all comments on a cause written and published,
spoken or threatened, while it is pending are contempts and likely to prejudice one
party or the other. In short, according to the accepted principle, nothing whatsoever
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should be done which can disturb the free course of justice.
D.H.
30. Order of discharge set aside.
OIS<:lalmer: Whiie everv eftort is rn.ic,;i to .ivo,d anv nistake or om,ssion, this casenote/ he;;,dnote/ judqm,::n(/ ilc<;,1 ruie./ requl;_itwn! Circular/
not,l1c.1t,on 1s b<cinq ciro:::uiated on the cond,t,on and under s;:andinq thu;: the outi1,sher woulC not be i•;ible ·n ;iny nanne, bv <Cilson ot ;inv m;st,:ike
or om,ss,on or /or ;;,nv s1ct,on t<1ken or om!tted to b<c t;;,ken or ,:ia,nce rendec,::d or ,:icceotcd on the b;;,s,s ot tt11s cilsenote/ heildnot>ac/ judqriient/ .:ict;
rule/ rcqul.:itwn/ circular/ notilkation. All d1soutc·s will be subtect <exclus,ve!y to iunsaictton o/ cc,,;rt~. t"bunills ,:ind fm,~rns ;it U.icknow onlv The
authent,c,tv of this texr rnwst be ver·•flC'O trorn the oriQi'lai source.
© EBC Pubhsi11ng Pvtltd., Lucknow.

-98-
•
, tv:flfid
Parwsh Vtu~kown
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1-~tm'{I / dJ~ 1A
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In the court of S.K.Khanduja, Addi.Sessions Judge,Gurgaon. /1-N ,v )(
Case No.4~/2013
Decidedpn 15.22014.
~
Parvest\ Kataria wife of Krishan Kumar r/o 182, 8 biswa village

Gurgaon, Gurgaon.
2.Om Parkash Kataria son of Ram Parshad r/o H.No.402,Sector
12A,Gurgaon.
3.Ltd.Col. (Retd.) S.S.Oberoi son of HS Oberoi, r/o flat No.1102,
Tower 1, Uniworld Garden.Sector 4 7, Gurgaon.
Complainants.
Accused.
Appeal against order dt. 30.4.13 passed by·· Ms.Manvika

Banswal,JMIC,Gurgaon.
Present when argued

Appellants in person .
Judgment.
This present judgment shall decide the fate of this
appeal filed by the three complainants Parves Kataria widow of

.,
deceased Krishan Kumar, Om Parkash Kataria, the brother of said
deceased and Lt.Col.(Retd.) S.S. Oberoi, complainant No.3.
2 At the outset, complainants have stated at bar during the
course of arguments that this court has ample power to treat this
appeal into revision in as much as the complainants are not the
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legal persons being unaware of intricacies of law, but they want to

77
address ;3rguments at their own, unassisted by any Advocate.
Tnerefore: it is urged that the appeal be converted into revision in as
much as the impugned order culminated the proceedings before
the lower court.by way of dismissal of complaint on the second
date of .hearing by passing the impugned order. There is merit in
the submission. Nomenolatur@ of !ht oroceo!lil'lg by mentioning
word app@al at firi;\ page of appeal under section 399,372
Cr.P.C.shall not come in the way of advancing substantial justice to
both the parties. Rules and procedure are hand made of justice and
the same work as lubricant to take the journey of the case to its
ultimate destination ,that is to bring about the truth. Any

~ ,,., interpretation of the rules and procedures.which defeat the ends of
C
( justice, should be avoided. Moreover, in case Mahesh Kumar
Vs.State, 1978 Crl.Law Joumal,390,Allahabad, ii was held that
. there is nothing in the Code of Criminal procedure to bar a revision
application being treated as an appeal or vice versa . No doubt,
unt!er section 401 (5) Cr.P.C. , Hon'ble High Court is empowered,
to convert the revision into appeal when it is satisfied that appeal
lies and application for revision was made to it under erroneous
• belief that no appeal lies thereto, therefore, in the interest of justice,
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the Hon'ble High Court may treat the application of revision as a 7g
petition of appeal and deal with the same accordingly. Sessions
Court has also been given the said power as it has been envisaged
in section 399(2) Cr.P.C.Thus in the larger interest of justice, this
court treats the appeal as __ revision because there is apparent
illegality ·in the impugned order passed by learned lower court
regarding, which detailed discussion will be made in the forthcoming
paragraphs _ This court is competent to examine the record • of
inferior criminal court proceedings as to the correctness and legality
and proprietary of the impugned order passed by lower court,

I '
' . whereby complaint filed by the complainants was axed down at a
preliminary stage, without affording the complainants , who
appeared in person before lower court, to lead preliminary evidence.
3 To start with , it will be worthwhile to note down the bare
facts leading to the filing of the complainant before lower court and
• consequent filing of this petition before this court. The
complainants vented their grie"'.ance before the tower court by
directly filing their complaint in the said court on 20.4.13 presenting
all the complainants there in person on said date. On the said date,
the complaint was adjourned for 30.4.2013 for advancing
arguments on the point, whether the cognizance of the offence can
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be taken and if a priina facie case is found then the complaint can 79
• be referred to the court of Session. On the adjourned hearing on
30.4.13, learned lower court of Ms.Manvika Banswal, learned
JMIC,Gurgaon, after having heard the arguments of complainants
passed the impugned order,_ dismissing the complaint holding that
since accused have not been named in the complaint and if the
prima facie case is found after the admission of complaint, then
the lacuna will remain as to whom , the court will summon at the
time of summoning of the accused. It was further observed that
section 202 Cr.P.C. empowers the Magistrate to make enquiry in
th~ offence triable by the court of Session and since the present
complaint pertains to section 302,304,367 IPC, which are triable by
the court of Session, therefore, it was held that no enquiry can be
conducted. It was further held that section 209 Cr.P.C.presupposes
the appearance of the accused before the court and when the
• Magistrate finds that offences are triable by the court of Sessions,
then he shall commit the accused to the court of Session and
according to learned Magistrate, the complaint could not be
committed to the Sessions Court as the court had no power to take
cognizance of the offence:
4 Before proceeding further in the matter, it may be
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' mentioned her that 'the said complaint was jointly filed by
'
,
complainants vide complaint No.63/13 on 20.4.13 before the said
Magistrate , levelling the allegations of murder of Krishan Kumar,
who died under mysterious circumstances in a deep rooted
conspiracy of the police,jail officials etc. The pleadings in the
complaint are voluminous . It is alleged that on 12.1.10, late Krishan
Kumar was brought dead at 7 a.m in General Hospital Gurgaon as
an undertrial prisoner from Bhondsi Jail,Gurgaon les!il than 20
hours after his arrest in good health. It is stated that Pawan Kumar,
then JMIC,Gurgaon cancelled the valid bail of the said deceased on
11.1 .10, who was regularly attending the trial alongwith his counsel
Sh. R.S.Saini Advocate. The complainants have levelled the
allegations in this regard against Naib Court and Smt. Ki ran Lohiya
working in the said court. However the complainants have
highlighted the .enquiry report of Sh.Mukesh Rao, then learned
·JMIC,Gurgaon, who conducted enquiry as to the cause of custodial
death of the deceased under _section 176(1A(a) Cr.P.C. The
complainants have vented their grievance as regards the failure on
the part of the police and adrninistration to take action in view of the
.
findings and observations recorded by said Magistrate, who is no
longer in the job as a Judicial Magistrate. The complainants have
~ J.,:omiflef'
~!IS Agenc1
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relied upon some of the observations. fl

Certain observations of the said Magistrate, who
submitted in his inquiry report on 2.4.2011 to then District and
Sessions Judge,Gurgaon, in the concluding and operative part of
his report suggest that the said Magistrate found the role of doctors
of the jail, of G.H.Gurgaon and other officials of the jail and police
officials, full of suspicion at every stage in the matter as ,the
deceased was hale and hearty as per the statements of the
witnesses ,at the time of his arrest, but his death was caused in the
suspicious circumstances and the same was visible from
photographs mark 7 to 21. Learned Magistrate was further of the
opinion that under what circumstances, his bail was cancelled in
case FIR No.75/08 under sec 324,506 IPC of P..S.Sector
5,Gurgaon, was under suspicion as on 11.1.2010, as per the
record of the police, he was on bail and he had appeared in the
.court on 11.2.2010.Learned Magistrate further found that the
enquiry report could not be given and it was kept pending waiting
visra report therefore, even without visra report , he submitted
the report for taking appropriate action in the matter. The object of
the enquiry, according to iaid Magistrate, was to ascertain' as to •
whether the death of said under trial was natural or due to some
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other reason. Learned· Magistrate further found that the offence, in
which the deceased was taken into custody was pertaining to
sector 5,Gurgaon and he was required to be lodged to jail either by .
police of sector 5,Gurgaon or by the escort guard, who stays in the
court complex, but after a long interval, he was taken by Angrej
Singh Constable of P.S.City Gurgaon to jail ,which raises suspicion
and supports the allegations of the relatives of the deceased
pointing out his death occurred under mysterious circumstances At
page 13, of its report, the Magistrate found the collusion of jail
authorities with the police under the pressure of politician Sukhbir
Singh,a sitting Minister of Haryana,as per the statement of Sahid
Hussain.Thus in the ultimate analysis, ,the Magistrate found that iri
his opinion, the matter needed thorough investigation from some
independent/impartial judicial agency as there seems to be the
involvement of senior political boss, superior police officers. jail_
• authorities, doctors and others.
5 It is rightly argued by complainants that learned lower
court treaded an illegal path, by dismissing the complaint at
threshold without affording opportunity to the complainants to lead
their preliminary evidence: At this stage, it will be worthwhile to
refer to section 190 CrP.C.
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is 3
190.Cognizante of offences by Magistrates-(1) Subject to the
provisions of this Chapter, any Magistrate of the first class.and any
Magistrate of the second class specially empowered in this behalf
under sub section(2) , may take cognizance of any offence-
a)upon receiving a complaint of facts which constitute such offence;
b) upon a police report of such facts
c) upon information received from any person other than a police
officer, or upon his own knowledge , that such offence has been
committed. ••
2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub section (1) of such
offences as are within his competent to inquire into or try.
Thus as per section 190(1) Cr.P.C. the Magistrate of 1st
Class, may take cognizance of any offence upon receiving of
private complaint of the facts , which constitute such offence.

,-,
I ~ At this juncture, it will be worthwhile to refer to section
~':,
- ( 200 CrP.C
t/) .·.,
( ( ' 200.Examination of complainant-A Magistrate taking cognizance of
an offence on complaint shall examine upon oath the complainant
and the witnesses present, if. any., and the substance of such
examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate.
Provided that when the complaint is made in writing, the
-Magistrate need not examine the complainant and the witnesses -
a) if a public servant acting or purporting to act in the discharge of
his official duties or a court has made the complaint; or
b) if the Magistrate makes over· the case for inquiry or trial to
another Magistrate under section 192;
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need. not re
examine them.
!!t-·~
t'-r,,;;yii,4 Agemi}'
. . Eli ,. v3i/ftJft$ Jr!f,
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From the ' plain language employed in section 200
• ~ Cr.P.C., It clearly shows that Magistrate taking cognizance of
offence on complaint , shall examine , on oath, the complainant and
the witnesses present, if any. The use of word "shall" in section 200
Cr.P.C.obligates upon the Magistrate to examine the complainant

. .
on oath .and his witnesses, if any present.
6 Thus the reasoning given by learned lower court that it
could not have taken the cognizance in the matter, was apparently
a flawed one, which has led to miscarriage of justice because
learned Magistrate did not provide any opportunity to the

.,.J
.,.. complainant to lead preliminary evidence ,albeit the complainants

,
~
/ --,·
: -~
alongwith their complaint enclosed a list of 346 witnesses. No
doubt, the perpetrators of the said unnatural death of deceased

t::', Krishan were not known,yet Section 190 Cr.P.C. does not lay down
that a Magistrate can take cognizance of the offence, only if the
• names of the offenders are known.
7 There is an apparently illegality in the another reasoning
given by learned Magistrate in the impugned order , when it
observed that section 202 Cr.P.C.bars a Magistrate to make enquiry
into the offence, which is • triable by ,the court of Sessi~n. For the
facility of reference section 202 is reproduced as under :-
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202.Postponement of issue of process (1) Any Magistrate, on

receipt of a complaint of an offence of which he is authorised to t~ke
cognizance or which has been made over to him under section
192, may, if he thinks fit, postpone the issue of process against the
accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or not there is
sufficient round for proceeding.
Provided that no such direction for investigation shall be made
a) where· it appears to the Magistrate that the offence complained of

is triable exclusively by the court of session; or
• b) where the complaint has not been made by a court, unless the
complainant and the witnesses present if any have been examined
on oath under section 200.
(2)In an enquiry under sub section (1) the Magistrate may, if he
thinks fit, take evidence of witness on oath;
Proyided That if it appears to the Magistrate that the offence
complained of is triable exclusively by the court of Session, he shall
call upon the complainant to produce all his witnesses and examine
them on oath.
3) If an investigation under sub section( 1) is made by a person not
being a police officer, he shall have for that investigation all the
powers conferred by this code on an officer in charge of a police
station except the power to arrest without warrant
8 From the plain language used in section 202, it is clear
.from the proviso added to section 202(1) CrP C.,that the Magistrate
shall not direct the investigation to be made by the police, when it
appears to the Magistrate that the offence complained of, is
exclusively triable by the court of Session. What bars the Magistrate
is the direction of the investigation to police under section 202
Cr.P.C.,when the offence is exclusively triable by the court of
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Session, but section 202 (1) Cr.P.C.does not debar the Magistrate
from making enquiry into the case by itself . The use of word
'enquiry and investigation' in the said section have different
conotations. Since it was within the province of the Magistrate to
hold enquiry into the matter!. which could have been made by the
Magistrate itself by calling upon the complainants to· lead their
evidence. therefore, the reasoning given by learned lower court in
this regard is apparently untenable. which is not backed by section
202(1) Cr.P.C.,which clearly empowers the Magistrate to enquire
I-,_
into !he case himself, even offence alleged against the accused is
triable by court of session. However one proviso is added to sub
section(2) of section 202 Cr.P.C,which clearly lays down that
where it appears to the Magistrate that offence complained of is
triable exclusively by the court of .Session.then he shall call upon
the complainant to produce all his witnesses and examine them on
• oath. Hon'ble Supreme Court in case Shivjee Slngh Vs.
Nagender Tiwari,2010(3) RCR,Crl.466 on this point has held that it
is 'not mandatory for Magistrate to call all the witnesses of the
complainant becaµse word' shall' cannot be treated as mandating
the Magistrate to call all the witnesses in preliminary evidence.
9 The another reasoning given by learned lower court that
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since no accused was 'before, it so as per the provision of section

"-
209 Cr.P.C.the learned Magistrate expressed hero. helplessness as
to to whom the said Magistrate would have committed the accused
for trial before the court of Session. At this juncture, it will be
worthwhile to refer to section 209 Cr. P. C.
209.Commitment of case to court of session when offence is triable

exclusively by it.- When in a case instituted on a police report or
otherwise, the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence .is triable
exclusively by the court of session, he shall-
a) commit after complying with the provisions of section 207 or
section 208, as the case may be, the case to the court of session,
and_ subject to the provisions of this Code relating to bail, remand
the accused to custody until such commitment has been made.
10 It is settled law that the court takes cognizance of the
case and not of the offender, and it is the duty of the court to see
as to who were the actual perpetrat0rs of the crime.Any serious
• crime like murder.rape or other heinous crime are not the crime
against the individual but they are crime against the society as a
whole. Therefore, learned lower court illegally dismissed the
complaint under an imaginary assumption that she could not have
taken cognizance of. the matter. Who knows that during the _course
of enquiry by the Magistrate, the names of some of the accused
~
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BB
may crop up. Learned Magistrate adopted an escape route by
axing down the complaint at the preliminary stage.without affordi~g
the opportunity to complainants to lead preliminary evidence. In
case Hardeep Sigh Vs.State of Punjab ,criminal appeal No.1750
of 2008 decided on 10.1.2014, the matter which came up before
the Constitution Bench of Hon'ble Supreme Court , was under
section 319 CrP.C.and various parameters of law were laid down
such as to when this power can be exercised and whether the
examination in chief of a witness is to be treated as evidence for
summoning of additional accused, whether the test of the accused
likely to be convicted by way of evidence is to be applied or test of
a prima facie case when a charge is framed, to be applied. This

( "
...,.,\ .
- court need not to go into other parameters of this land mark
judgment of Hon'ble Supreme Court, where conflicting views of
Hon 'ble Supreme Court on section 319 Cr.P.C.have been
.harmonised by resolving the conflict by laying down the guidelines.
However in the said authority, the Hon'ble Supreme Court has
relied upon its previous ruling in para 24 in case Raghubans
Dubey vs.state of Bihar,AIR 1967 SC,1167, wherein it was held
that once cognizance has, been taken by the Magistrate, he takes
cognizance of an offence and not of the offenders .Once he takes
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14
, Parvesh Vs.unkown.
cognizance of an offe'nce , it is his duty to find out, who the
offenders really are and once he comes to the conclusion that apart
from the persons sent up by the police, some other persons are
involved, then it is his duty to proceed against those persons. The
summoning of the additional accused is part of the proceeding
initiated by his taking cognizance of an offence.
11 The said ruling was cited to understand the meaning that
can be attributed to the word ' enquiry and trial' as used under
section 319 Cr.P.C.
12 . One another Constitutional Bench authority of Hon'ble
Supreme Court in case Dharampal and others Vs.State of Haryana

,,,--,,
(
~/
' -
'/1
and anr. ,in criminal appeal No.148/2013 decided on18.7.13, by
c....,
the Constitution Bench , has been pressed into service and in that
case also, the Hon'ble Supreme Court resolving the conflict , and it
was held that its previous decision in Krishan Singh Vs.State of
-Bihar 1993(2) SCC, 16 lays down correct law in respect of power of
Sessions Court after the commital of the case to it by learned
Magistrate under section 209 Cr.P.C: It was held that even if the
accused has not been committed to the court of Session under

"l.-
section 209 Cr.P.C, Even then section 193 CrP.C. will not bar the
Sessions Judge to take cognizance against some accused, who
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Parvesh Vs,unkown.
-r,,;-t
..
have not been put ·on to face their !mil. It was thus held that
Sessions Judge need not to wait of the stage of recording the
evidence with a view to exercise its power under section 319
Cr.P.C. In other words, the said authority clearly guides this.court
that the Magistrate is competent to take cognizance even under
section 1.90 Cr.P.C.even against those accused, who have not been
arraigned to face their trial in police report under section 173
Cr.P.C. The Magistrate is competent under section 190 Cr.P.C.to
take cognizance against those accused, who were left out by the
police on the basis of material submitted in police report, withoui
resorting to the stage of recording evidence required to summon
additional accused as mandated under section 319 Cr.P.C.
13 So far as the locus standi of the complainant No.3 Col.
S.S.Oberoi , to file joint complaint is concerned, in this regard , he
has referred to citation of Hon'ble Supreme Court in AIR 2012
• SC.1185,Dr.Subramanian Swamy Vs. Dr.Manmohan Singh and
Anr. Wherein that case the Hon'ble Supreme Court relying upon
its· previous ruling in case A.R.Antulay Vs.Ramdas Sriniwas
Nayak (1984)2 SCC 500 has held that the appellant had locus
standi to file complaint under Prevention of Corruption Act,'1988. It
was further held in the said ruling that the concept of locus standi of
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16
Parvesh Vs.unkown.
complainant is foreign to the criminal jurisprudence ,save and
except where the statute creates power and makes certain
persons eligible as complainant . In the said citation the Hon'ble
Supreme Court has held that section 190 Cr.P.C. permits anyone to
approach the Magistrate with a complaint, as it does not prescribe
any qualification the complainant is required to fulfil to be eligible
to be complainant as the principle that any one can set the criminal
law in motion remains intact unless contra is indicated by a
statutory provision.
14. Hence as a sequel to my above detailed discussion, I
am of the opinion that learned Magistrate fell in grave error in
dismissing the complaint, therefore, impugned order has
occasioned miscarriage of justice to the complainants. Accordingly
without commenting any word on the merits of the case, the present
revision petition is hereby accepted with the result that the
• impugned order is hereby set aside, being illegal and further
directions are passed to the learned Magistrate to proceed afresh
in the matter by giving opportunity to the complainants to lead
preliminary evidence and to proceed further in accordar1ce with law.
File be consigned to record room. Lower court record be sent back
with copy of this judgment. The complainants are directed to appear
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17
Par.·csh Vs.unkown.
1
•
'
before the concerned Magistrate on 28.2.14 at 10 a.m sharp.
•· .. P.-.l ( ...,-.- - -
••.D ' ~ " ' - r
Announced 15.2.2014. Addi.Sessions Judge,
Gurgaon.
Note All pages are sign~d~.?J.i~~..f:t:
AS~~~on.
CERilFIED TO GE TRUE COPY
~
& Sesr.1or,s ... ,- .. :...,, Gurgaon
D·su
: • ,-1 ........
.
U d • "'c""0"-7 6
l •
Authorised ~ e. ~
aflh ·an Evidence,
A~i°•' 1979
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,..-''"'\
IN THE COURT OF
SHRI RAJESH KUMAR YADAV, ,·,t./
SUB-DlvISIONAL JUDICIAL MAGISTRATE, '13
SOHNA.
Criminal Complaint No.: 63 of 2013 ,
Date of Institution : 20.04.2013129.04.2013
Date of Order : 13.08.2014
1. Parvesh Kataria wlo Krishan Kumar(D), Rio 8 Biswa, House No.

182, Gurgaon Village, Gurgaon.
2. Sh. Om Parkash Kataria s/o Sh. Ram Parshad, H.No. 402, Sector-
12A, Gurgaon.
3. Lt. Col(Retd.) S.S. Oberoi slo late Capt. H.S. Oheroi, Flat No. 1102,
Tower-I, Uniworld Garden, Sector-47, Gurgaon, Haryana.
........... Complainants
Versus
Unk11ow11
.......... Accused
{omplaint under Sections 302. 367. 304, 325. 326, 193. 197, 201.
no IPC read with Seciion .U. 35. 36. 3 7. 38,. 39. 109.. 120-B..
J 77. 191 and 192 IPC in custodial death case Krishan l(umar slo
Ram Parshad on 12.01.2010
Police Station: Bhondsi

Present:- Complainant S.S, Oberoi in person on behalf of all
complainants
ORDER:
The present complaint was filed by complainant against
unknown accused under Sections 302, 367, 304, 325, 326, 193, 197, 201,
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Parve.sh Kataria etc. Versus Unknown
2 :v-.:
..• ,
• \'
'.I.:'.
220 IPC read with Section 34, 35, 36, 37, 38, 39, 109, 120-B, 177, 191 and Cf 'r
J92 IPC in custodial death case Krishan Kumar s/o Ram Pars had on
12.01.2010.
2. Brief facts of the complaint are that the present
complaint was jointly filed by complainants levelling the allegations of
murder of K.rishan Kumar, who died under mysterious circumstances in a
deep rooted conspiracy of the police, jail officials etc .. The pleadings in the
complaint are voluminous. It is further alleged that on 12.01.2010, late
Krishan Kumar was brought dead at 7.00 a.m. in General Hospital, Gurgaon
as an under trial prisoner from Bhondsi Jail, Gurgaon less than 20 hours
after his arrest in good health. It is further alleged that Pawan Kumar then,
learned JMIC, Gurgaon cancelled the valid bail of the said deceased on
I 1. l.l 0, who was regularly attending the trial along with his counsel Sh.
R.S.Saini, Advocate. The complainants have levelled the allegations in this
regard against Naib Court and Smt. Kiran Lohiya working in the said court.
However, the complainants have highlighted the enquiry report of Sh.
Mukesh Rao, then learned JMIC, Gurgaon who conducted enquiry as to the
cause of custodial death of the deceased under Section l 76(1A(a) Cr.P.C ..
The complainants have vented their grievance as regards the failure on the
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3
15
part of the police and administration to take action in view of the findings •
and observations recorded by said learned Magistrate, who is no longer in
the job as a Judicial Magistrate. The complainants have relied upon some of
the observations of learned Magistrate, who submitted his enquiry report on
2.4.2011 before the then learned District and Sessions Judge in the
concluding and operating part of his report suggested that learned
Magistrate found the role of doctors of jail, of G.H. Gurgaon and other
officials of the jail and police officials, full of suspicion at the every stage in
the matter as the deceased was hale and hearty, but his death was caused
under suspicious circumstances. Therefore, it is prayed that cognizance be
taken of the offence, or, in the alternative if no prima facie offence is made
out on the facts as alleged taken at their face value, the complaint be
dismissed under Sections 200 and 203 Cr.P.C. and the offence/case if found
prima facie to exist be referred to the court of Sessions in accord with
•. Cr.P.C Sections 200, 204, 208, 209 and 210 as applicable so that the
accused conspirators be summoned, tried and punished according to law in
the interest of justice.
3. Present complaint was filed on 20.04.2013 before the
Court of Ms. Manvika Banswal, learned JMIC, Gurgaon and learned
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4
counsel for complainant argued that cognizance of the offence be taken and
if a prima faice case is found, then the complaint be referred to the court of
Sessions. Thereafter, complaint was adjourned for 30.04.2014 for
consideration/arguments on the aforesaid point and vide order dated
30.04.2013 passed by learned JMIC, Gurgaon, present complaint was
dismissed. Thereafter, appeal preferred against the judgment dated
30.04.2013 before the court of Sh. S.K.Khanduja, learned ASJ, Gurgaon
and vide judgment dated 15.02.2014 passed by learned ASJ, Gurgaon,
present revision petition was accepted and impugned was set aside and
I·
further directions were passed to learned Magistrate to proceed afresh in the
matter by giving opportunity to the complafoants to lead preliminary
evidence and to proceed further in accordance with law and complainants
are directed to appear before concerned Magistrate on 28.02.2014 at 10.00
a.m. sharp and present complaint was received by transfer vide order dated
I 1.03.2014 passed by learned CJM, Gurgaon.
4. In order to prove the allegations, complainants in their

preliminary evidence examined Om Parkash as CW-I, complainant Parvesh
Kataria as CW-2 and Lt. Col S.S. Oberoi as CW-3. All witnesses are
complainants in this case and in their preliminary evidence reiterating the
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5
facts mentioned in the complaint.
5. Vide separate statement, complainant No. 3 Lt. Col.
Retd. S.S. Oberoi closed the preliminary evidence on dated 29.04.2014.
6. I have heard the complainant at length and h~ve gone
tl_irough the case file very carefully.
7. The perusal of case file reveals that the present
complaint was dismissed at summoning stage vide order dated 30.04.2013
passed by learned JMIC, Gurgaon, but the present complaint was remanded
back vide order dated 15.02.2014 passed by learned ASJ, Gurgaon. Perusal
of complaint reveals that the present complaint has been filed by the
complainants against unknown person and to prove their complaint,
compiaL'lants have not filed any documents and there is only oral evidence
on case file. Complainants have filed present complaint against unlmown
person under Sections 302,367,304,325,326, 193,197,201,220 IPC read
with Section 34, 35, 36, 37, 38, 39, !09, 120-B, 177, 191 and 192 IPC in
custodial death case Krishan Kumar s/o Ram Parshad on 12.01.2010. CW-1
Om Parkash in his testimony before court deposed that on 10.01.2011, at
10.00 a.m., his brother namely, Krishan Kumar met him at his residence
H.No. 402/12 in a hale and hearty condition and was not suffering from any
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6
ailment and on 12.01.2011, he received telephonic message from the
address of his brother Krishan Kumar that his brother has died in judicial
custody and there are number of injury mark on his body and his brother
was killed by way of hatching a criminal conspiracy. CW-2 Parvesh Kataria
wife ofKrishan Kumar deposed that in the year, 2010, a person came at her
residence with summons and they went to the court from where, her
husband Krishan Kumar was sent to jail and on the next date, they came to
know that Krishan Kumar has died and there are number of injuries mark on
his body and there is apprehension that some one had murdered her
husband. CW-3 Lt. Col. S.S. Oberoi deposed that on 12.01.2010, Om
Parkash Kataria told him that his brother had died in judicial custody and on
13th, when he reached at the cremation, he came to know that postmortem
of deceased would be conducted again but same does not taken place as .
cremation has already taken place. He further deposed !hat learned JMIC
has submitted enquiry report under Section 176 Cr.P.C. to the then learned
District and Sessions Judge, Gurgaon and further reiterated the facts
mentioned in the complaint.
8. At the stage of issuing process against the accused,
Court has although to see whether prima-facie case is made out or not and
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7
no detailed inquiry and scrutiny of evidence is required. In a complaint case,
any Magistrate of Ist Class and any Magistrate of Ilnd Class specially
empowered in the behalf may take cognizance of any offence as mentioned
in Section 190 Cr.P.C. and procedure to deal with complaint to Magistrate
has been discussed in Chapter XV Cr.P.C. in Sections 200 to 203. Further
perusal of Section 209 Cr.P.C. deals with the cases relating to commitment
of case to the Court of Session when offence is triable exclusively by it. It is
the settled law that court takes the cognizance of the case and not of the
offender. In Gurdeep Kqur Vs. Bqlbir Singh & Others. 200512/ RCR(Cr/.
N.Dl,. it was held that "it is an establislted law tltat at the time of
summoning an accused in a complaint case, trial Magistrate is supposed
to look into allegations as levelled in the complaint or averred at the time
when preliminary evidence is lead. Trial Magistrate has to be, a prim{(•
facie, satisfied as to whether, there are sufficient grounds for proceeding
against the accused named in the complaint or not It is not the duty of
Trial Magistrate to enter into detailed discussion on the merits or
• "
demerits of the case. At the stage of summoning, regular trial for
atljudicating guilt or otherwise of the persons complained against is not

envimged." •
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9. After taking into consideration evidence of these
witnesses on oath, it would be appropriate to go through the definitions of
word criminal conspiracy, culpable homicide, murder, grievous hurt,
kidnapping, knowing furnishing false information to a public servant,
giving a fabricated and false evidence, causing disappearance of evidence,
abetment etc. as defined under Indian Penal Code.
"Section 120A-A. Definition of Criminal Conspiracy is as

under:-
When two or more persons agree to do, or ca11se to be •
done--
(1) an illegal act, or
(2) an act which Is not illegal by illegal mea~, such
an ,1greement is designates a criminal conspiracy:
Provided that no agreement except an agreeme.,t to
commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by two or more parties to
such agreement in pursuance thereof."
Definition of Section 107 is as 11nder:-

Section 107. Abetment of a thing. A person abets the
doing of a tiring, who----
First. -Instigates a11y person to do that thing; or
Secondly.-- Engages with one or more other person or persons
in any conspiracy for tire doing of that thing, if a11 act or illegal
omission takes place in pursuance of that conspiracy, and in
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9 IDI
order to the doing of that thing; or
Thirdly- Jntentio1tal/y aids, by a11y act or illegal omission, the
doing of that thing.
Explanation 1.-A person who, by wilful

misrepresentation, or by wilful concealment of a material fact
which he Is bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a tlting to be done, is said to
instigate the doing of that I/ting.
Definition of Section 360 is as under:-

Section 360. Kidnapping. According to this section ,
whoever, conveys airy person beyond tire limits ofIndia, wit/rout
the consent of that person or ofsome person legally authorized to
consent on behalf oft/wt person, is said to commit the offence of
kulnapping from India.
Definition of Section 299 is as under:-
Section 299. Culpahle homicide-Whoever causes

death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause
death, commits the offence ofculpable homicide.
10. From the perusal of Section 120-A itself, it is clear that
in case of conspiracy to commit an offence, the mere agreement is sufficient
to impose liability without requirement that some overt act in furtherance of
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t6 (
10 Io l
conspiracy should have been committed. However, in case of a conspiracy
•to do an act, which is not illegal, in other words a legal act, through means
which are illegal, then in such cases, there ought to be some overt act which
should have been committed by one or more parties to the agreement, apart
from the agreement itself There is no evidence in regard to the fact that
there was any criminal conspiracy, culpable homicide, murder, grievous
hurt, kidnapping, knowing furnishing false info1mation to a public servant,
giving a fabricated and false evidence, causing disappearance of evidence,
abetment etc .. Further, in the present complaint not even a single witness in .
regard to proving the death of the deceased Krishan Kumar was examined
by the complainants and no witness in regard to proving the PMR was
examined by the complainants. Complainants have levelled simple
allegations that deceased Krishan Kumar who died under mysterious
circumstances in a deep rooted conspiracy of the police, jail officials etc.
without showing even a single documentary evidence in regard to
allegations levelled in the present complaint. There is nothing on record to
show that deceased Krishan has expired under mysterious circumstances in
judicial custody. Since, there is not an iota of evidence against any known
or unknown person that Krishan Kumar has expired under mysterious
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Parvesh Ka/aria etc. Versus Unknown

1lJ.,.-. I o3
circumstances in the jail premises. No witness regarding to medical
report/PMR was examined by the complainant and no such document was
placed on case file. Hence, taking into consideration statements on oath of
the complainant and of the witnesses, I am of considered view that there is
no sufficient ground for proceedings against unknown accused in view of
my discussion above being not an iota of evidence against any known or
unknown person and accordingly, present complaint stands dismissed. File
be consigned to record room after due compliance. sc( Ir-

Pronounced in open Court: (Rajesh Kumar Yadav),
Dated: 13.08.2014 Suh-Divisional Judicia/Magistrat.e,
Sohna.
Note:~ This order contaitss 11 (elever,J pages and each
pages /,as been checked a11d signed by me.
(Rajesh Kumar Yadav),

Sub-Divisional Judicial Magistrate,
Sohna. 13.08.2014
Certified to b
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CuJl~·e,/ ~ &f rJjrne-r/t Jf-7-r/o)-/IS-. Si:,

IN THE COURT OF PHALIT SHARMA, ADD)TIONAL SESSIONS
JUDGE, GURGAON.
Criminal appeal No.34-A of25.8.2014.

CIS No.CRA/0002898/2014.
Date oflnstitution: 25.8.2014.
Date of decision: 27.1.2015.
I. Parvesh Kataria wife of Sh.Krishan Kumar (D), resident of 8

Biswa, House No. I 82, Gurgaon Village, Gurgaon.
2. Om Prakash Kataria son of Sh.Ram Parshad, resident ofH.No.402,,

Sector-12A, Gurgaon (Haryana).
3. Lt.Col. (Retd.) S.S. Oberoi son of late Capt. H.S. Oberoi, Flat
No.1102, Tower-I, Uniworld Garden, Sector-47, Gurgaon
(Haryana).
Unknown.
..........Respondent-accused.
APPEAL UNDER PROVISO TO SECTION 372

Cr.P.C. READ WITH SECTIONS 299(2), 323,395
(SUBSTANTIAL QUESTION OF LAW OF
GENERAL PUBLIC INPORTANCE UNDER
ARTICLES 132, 134, 136 & 228 OF THE
CONSTITUTION OF INDIA), 174, 176 & 190(1)(c)
Cr.P.C. READ WITH SECTIONS 166A(b) JPC,
AGAINST ORDER DATED 13.8.2014, IN
COMPLAINT UNDER SECTIONS 302, 367, 304,
325, 326, 193, 197, 201 & 220 READ WITH
SECTIONS 34,35,36, 37,38,39,109,120-B,177, 191 &
192 IPC, IN CUSTODIAL DEATH CASE OF
KRISHAN KUMAR SON OF RAM PARSHAD,
ON 12.1.2010, DISMISSED BY LEARNED TRIAL
COURT ON THE ALLEGED GROUND THAT
NOT EVEN AN IOTA OF EVIDENCE WAS LED,
HENCE, TRIAL COURT IS OF THE VIEW THAT
THERE IS NO SUFFICIENT GROUND TO
PROCEED AGAINST UNKNOWN ACCUSED
SINCE NO WITNESSES WERE EXAMINED BY
ATTESTED
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Parvesh Kataria & others Vs. Unknown.
2
COMPLAINANT REGARDING MEDICAL

REPORT/PMR • BLATANT VIOLATION OF
CONSTITUTION BENCH JUDGMENT IN SHRI
A.C. AGGARWAL VS. Mst.RAM KALI, AIR 1968,
SC 1, AT pp.5 PARA(12) CONFLICTED WITH
RECENT CONSTITUTION BENCH JUDGMENT
OF THE HON'BLE SUPREME COURT IN
CONTEMPT PETITION (Crl.) No.11 OF 1990
TITLED AS "Dr.SUBRAMANIAN SWAMI VS.
ARUN SHOURIE", DECIDED ON 23.7.2014 •
ILLEGAL EXCLUSION OF ORAL EVIDENCE
OF COMPLAINANTS IN VIOLATION OF WELL
SETTLED LAW (DAYAL SINGH VS. STATE OF
UTTARANCHAL, 2012 VII AD (S.C.) 541 AT
pp.547-548 PARA 10).
Argued by:
U. Col. S.S. Oberoi (Retd.}appellant-complainant No.3 in
person.
JUDGMENT:
This judgment of mine will dispose of a criminal revision
filed by the above named revisionists/complainant against order dated
13.8.2014, passed by the cowt of Sh.Rajesh Kumar Yadav, learned Sub
Divisional Judicial Magistrate, Sohna, District Gurgaon, vide which the
complaint filed by the complainant has been dismissed as there was no
sufficient ground for proceeding against unknown accused, being not an
iota ofevidence against any known or unknown person.
2. The above named appellants-complainants have filed a
criminal complaint against unknown accused, for the commission of
offences punishable under Sections 302, 367, 304, 325, 326, 193, 197,
ATTESTED
.----Jb
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3
201,220 IPC read with Sections 34, 35, 36, 37, 38, 39, 109, 120-B, 177,
191 and 192 IPC in custodial death case ofKrishan Kumar son of Ram
Parshad on 12.1.2010, alleging therein that on 12.1.2010, Sh.Krishan
Kumar (since deceased) was brought dead at 7:00 am. in General
Hospital, Gurgaon, as an undertrial prisoner from Bhondsi Jail, Gurgaon,
less than 20 hours after his arrest in good health. It is further alleged that
Pawan Kumar, the then learned Judicial Magistrate !st Class, Gurgaon,
cancelled the valid bail of the said deceased on 11.1.20 I0, who wasj
regularly attending the trial alongwith his counsel Sh.R.S. Saini,
Advocate. The complainants have levelled allegations in this regard
against Naib Court and Smt.Kiran Lohiya, working in the said court.
However, the complainants have highlighted the enquiry report of
Y,<;r Sh.Mukesh Rao, the then learned Judicial Magistrate Ist Class, Gurgaon,
:;71) 'aolJ who conducted enquiry as to the cause of custodial death of the deceased
under Section I 76-IA(a) Cr.P.C. The complainants have vented their
grievance as regards the failure on the part of the police and
administration to take action in view of the findings and observations
recorded by said learned Magistrate, who is no longer in the job as a
Judicial Magistrate. The complainants have relied upon some of the
observations of learned Magistrate, who submitted his enquiry report on
2.4.20 II before the then learned District and Sessions Judge in the
concluding and operating part of his report suggested that learned
Magistrate found the role of doctors of jail. of General Hospital.
Gurgaon and other officials of the jail and police officials. full of
ATTESTED
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4
suspicion at the every stage in the matter as the deceased was bale
and hearty. but his death w,is caused under SUSJ!idous circumstances.
Therefore, it is prayed that cognizance be taken of the offence, or, in the
alternative if no prima facie offence is made out on the facts as alleged
taken at their face value, the complaint be dismissed under sections 200
and 203 Cr.P.C. and the offence/case if found prima facie to exist be
referred to the Court of Session in accordance with sections 200, 204,
208, 209 and 2IO Cr.P.C. as applicable so that the accused conspirators be
summoned, tried and punished according to law in the interest of justice.
3. In preliminary evidence, complainants examined themselves-
Om Prakash as CWI, Parvesh Kataria as CW2, Lt.Col. S.S. Oberoi as
_,,..--?1~ CW3 and after that preliminary evidence was closed by the complainant
·;} 11/ a.t'>on 29.4.2014.

4. After hearing the complainant and perusing the preliminary
evidence and material on record, complaint. was dismissed by the learned
trial court vide impugned order dated 13.8.2014. The relevant portion of
the order is as under :- (Refer para No. I0)
"From the perusal of Section 120..A of!PC itself, it is clear that

in case of conspiracy to commit an offence, the mere agreement
is sufficient to impose liability without requirement that some
overt act in furtherance of conspiracy should have been
e-0mmitted. However, in case of a conspiracy to do an act,
which is not illegal, in other words a legal act, through means
which are illegal, then in such cases, there ought to be some
ATTESTED
~
Exnrninor
. Coµying Agency
D1$tt. & SesJions Judge
Gs,,~'I.~
/6fJ -
- -i.--1/•1.-/i>
-82-
,r Parvesh Kataria & others Vs. Unknown.

5
60
overt act which should have been committed by one or more
parties to the agreement, apart from the agreement itself. There
is no evidence in regard to the fact that there was any criminal
conspiracy, culpable homicide, murder, grievous hurt,
kidnapping, knowing furnishing false infonnation to a public
servant, giving a fabricated and false evidence, causing
disappearance of evidence abetment etc. Further,in the present
complaint, not even a single witness in regard to proving the
death of the deceased Krishan Kumar was examined by the
complainants and no witness in regard to proving the PMR was
examined by the complainants. Complainants have levelled
simple allegations that deceased Krishan Kumar who died under
mysterious circumstances in a deep rooted conspiracy of the
police, jail officials etc., without showing even a single
documentary evidence in regard to allegations levelled in the
present complaint There is nothin: on record to show that
deceased Krishan has expir£d under mysterious
circumstances in judicial custody. Since, there ;s not an iota
of evidence a:ainst any known or unknown person that
Krishan Kumar bas expired under mysterious
circumstances in the jail premises. No witness regarding to
medical report/PMR was examined hy the complainants and
no such document was placed on case file. Hence, taking into
consideration statements on oath of the complainants and of the
witnesses, I am of considered view that there is no sufficient
ground for proceedings against unknown accused in view of my
discussion above being not an iota of evidence against any
known or unknown person and accordingly, present complaint
stands dismissed."
5. Feeling aggrieved, complainants preferred this revision
ATTESTED
~
Exarninar
. C->pyina Agency
D,stt. &. Sessions Judge
Gu~f/11.0n
.,,.,y .
2.-"1/0.J./ I>
-83-
r Parvesh Kataria & others Vs. Unknown. t1

6
petition against the order dated 13.8.2014 passed by the court of
Sh.Rajesh Kumar Yadav, learned Sub Divisional Judicial Magistrate,
Sohna, District Gurgaon.
6. Lower court record was requisitioned.
7. This court has heard Lt. Col. S.S. Oberoi (Retd.), one of the
complainant and revisionist in person and has gone through the record
carefully.
8. For the sake of clarity, the revisionists are being referred to as
complainants in accordance with the original nomenclature given by the
learned trial court.
Lt.Col. Oberoi (Reid.), one of the complainant and
!} 3/ I/ ~./1 J revisionist, while challenging the impugned order passed by learned trial
court, has argued that the impugned order vide which learned trial court
has dismissed his complaint in a cognizable offence, is contrary to the
settled law of the land as the trial court was bound to take cognizance
pertaining to cognizable offences, commission of which is emerging out
of the inquiry report conducted u/s 176 Cr.P.C. by Sh.Mukesh Rao, the
then learned JMlC, Gurgaon, He has further argued that learned
Magistrate was bound to take cognizance of the matter which pertained to
allegations of commission of cognizable offences including causing of
death of the undertrial Krishan Kataria by the police officials, medical
staff of General Hospital and the Bhondsi Jail and also the police:
ATTESTED
>
ANITA
2015.03.02 16:50
PHHC,Chandigarh
-84-

7
officials, who under a conspiracy killed Krishan Kataria, a hale and hearty
person when brought to jail. He has further argued that learned trial court
also failed to resort to provisions of section 299 as did not record the
evidence even if the accused are unknown in this complaint of
commission of cognizable offences and to rectify this mistake of the
lower court, this Court in revision is required to direct the Magistrate
concerned to take on evidence in this Session Triable offences within the
meaning of section 299(2} Cr.P.C. He has further argued that allegations
pertaining to offences exclusively triable by the Sessions Court, even this
Court of Sessions can ask for the evidence and can order to issue the
process against the persons found involved in the commission of the
offences for which the unknown persons liable for prosecution, are sought
to be summoned. Finally, while placing reliance on the law laid down in
B,C_ Chenoa Reddy and others Vs. State of Andhra Pradesh and
another. AIR 1962 Andhra Pradesh 267 CY 49 C 73). Sh.A.C.
Ag11arwaL Sub Diyjsional Magistrate. Delhi and another Vs. Ms.Ram
Kali. Am 1968 Supreme Court 01 (Y 5S C 1). J92inder Sjngh and
another Vs. State of Punjab and another. AIR 1979 Supreme Court
339. A.R.Antulay Vs. Ramdas Sriniwas Nayak and another. AIR 1984
Supreme Court 718. Kishun Singh and others Vs. State of Bibar.
/1993) 1 Supreme Court Reports 31. Sudhir and others Vs. State of
Madhya Pradesh. AIR 2001 Supreme Court 826. Santosh Hazarj Vs.
Purushottam Tiwarj fdeseasedl by LRs, <2001) 3 Supreme Court
Cases 179, T.T. Antony Vs. State of Kerala and others. (2001l 6
ATTESTED
___-)6
ANlTA
2015.03.02 16:50
PHHC,Chandigarh
Parvesh Kataria & others Vs. Unknown. 63
8
Supreme Court Cass 181, Shivjee Sin2h v,. Naeendra Tjwary and
othea, 1201Ql 7 Supreme Court Cases 57Q. Dayal Sjneh and others
Vs. State of Uttannchal, 2Q12 VII AD <S.C.} 54), Mis Tata Steel Ltd.
v,. Mis Atma Tobe Products Ltd. & ottwrs, CRM-790..MA-2016

(O&M\, date of decjsion 18.3.2013 (P&ID, Dharam Pal and others Vs.
State ofr Haryana and another, Criminal Appeal No.14B of 2003,,
dttided on 18.7.2013 (SO, he has prayed to set aside the impugned order
and to prosecute the accused involved as prayed.
10. With due regards to the arguments advanced by revisionist,
the observations of learned trial court made while dismissing the
' ~•- complaint and evidence on record, at the outset, it is necessary to note that
·- a revision petition is to be accepted in exceptional cases to prevent gross
•J/ '/' 1/ :;.m-
7
/ miscarriage of justice. To this effect, reliance is placed on the law laid
down in State of Orissa vs. Nakula Sahu and others. 1997 - ~
(Criminal} 283. In the quoted case, Hon'ble apex court had observed that
revisional jurisdiction is to be exercised only in exceptional cases
when there is &laring defect in the procedure or there is manifest
error on a point 9f law which has consequently resulted into
miscarriage of justice. Similar are the findings ofHon'ble apex court in
Devendn Nath Bhattacharya vs, State of West Beneal, AIR 1972 SC

.l!Ql. Our Hon'ble High Court in Gurdeep Kaur vs. Balbir Sineh and
others, 200S 12\ RCR /Criminan 20S has laid down the guidelines to be
followed to set aside the order of Magistrate issuing process, which are as
ATTESTED
----}b
E. . ~n,inN
COJJ) •• 19 Agr. "CY
Oislt. & :;Jssion'.; Judga
GurUf,,j'
ANITA
~
2015.03.02 16:50
PHHC,Chandigart,
-86-
Parvesh Katan! 2Lrs

9
Vs. Unknown.
under:-
(i) Where the allegations made in complaint or the statement

of witnesses recorded in support of same taken at their face
value make out absolutely no case against the accused or the
complaint does not disclose essential ingredients of an
offence which is alleged against the accused;
(ii) Where the allegations made in complaint are patently

absurd and inherently improbable so that no prudent person
can ever reach a conclusion that there is sufficient ground for
proceeding against accused;
{iii)Where the discretion exercised by Magistrate in issuing

process is capricious and arbitrary having been based either
on no evidence or on material which are wholly irrelevant
and inadmissible; and
(iv) Where the complaint suffers from fundamental defects

such as want of sanction, or absence of a complaint by
legally competent authority and the like.
As far as the powers of a Magistrate to issue process is
concerned, it cannot be disputed that criminal prosecution is a serious
matter as it affects the liberty of a person. No greater damage can be done
to the reputation of a person than dragging him in a criminal case.
Criminal law can't possibly be set into motion as a matter of course. The
order of the Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law applicable thereto.
He has to examine the nature of complaint and the evidence both oral and;
docwnentary in support thereof, relatable to the relevant provisions of the
offences and that would not be sufficient for the complainant to succeed
in bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of preliminary evidence. In nut shell, it may be
ATTESTED
-----!JP
fY"'lfflin~r
Cop):,,g Annncy
Dislt. & ~estit•r.5 Judge
Gurg.:.~
ANITA
2015.03.02 16:50
~
PHHC,Chandigarh
-87-

10 6S
said that the accused cannot be summoned in a routine manner, in view of
the law laid down by Hon'ble apex court in cases Mis fepsi Foods Ltd.
Vs. Special Judicial Ma,:istrate. AIR 1998 {SC) 129 and Harshendra
Kgmar D Vs. Rebatilata Koley and others. (2011-3) Supreme C1mrt
Cases 351.
Here, this court also would like to refer to the law laid down'
in Shivjit Singh Vs. Nagendra Tiwari and others, (2010) 7 Supreme
Court Cases 578. wherein Hon'ble apex court observed that complainant
is not bound to examine all witnesses named in the complaint or whose
names are disclosed in response to order passed by Magistrate. Only

I
~),.). those witnesses are required to be examined whom complainant considers
,..--7
/
J. /, d,l)r material to make out prima facie case for issue of process. Choice being
7
/
1 of complainant, he may choose not to examine other witnesses.
Consequence of such non-examination is to be considered at the trial and
not at the stage of issuing process when Magistrate is not required to enter
into detailed discussions on merits of the case. Magistrate has only to see
whether exists sufficient ground for proceeding against the accused.
Since, there has been repeated emphasis of the revisionist
that the Magistrate is bound to take cognizance of any cognizable offence
brought to his notice, here this court would also like to quote the
observations of Constitutional Bench of Hon'ble apex court in A&,._
Ajgarwal, Sub Divisi2nal Maeistrate, Delhi and another Vs. Mst.
Rgm Kali etc., AIR 1968 Supreme Court, 01. which are as under:-
ATTESTED
--)f;,
ANITA
2015.03.02 16:50
PHHC,Chandigartl
-88-
... Parvesh Kataria & others Vs. Unkoown.

11
"Under Section 190(1 Xb) of the Code of Criminal

Procedure, the Magistrate is bound to take cognizance
of any cognizable offence brought to his notice. The
words "may take cognizance" in the context means
"must take cognizance". He has no discretion in the
matter, otherwise that Section will be violative of
Article 14 of the Constitution."
What amounts to "take cognizance• has been explained
by Hon'ble apex court in Kishun Sini:h Vs. State. (1993) 1 SCR
H. in following manner :-
"2.06 Even though the expression 1ake cognizance' is

not defined, it is well settled that when the Magistrate
takes notice of the accusations and applies his mind to
the allegations made in the complaint or police report
or info~tion and on beini: satisfied that the
allegations, if proved, would constitute an offence
decides to initiate judicial proceedings against the
alleged offender he is said to have taken cognizance of
the offence. It is essential to bear in mind the fact that
cognizance is in regard to the offence and not the
offender. Mere application of mind does not amount to
taking cognizance unless the Magistrate does so for
proceeding under section 200/204 of the Code."
The above described legal position makes it clear that a
Magistrate while considering whether or not process is to be issued under
Section 204 Cr.P.C., is to satisfy itself whether or not the evidence on
record, prima facie, establishes the ingredients of the offence for which
ATTESTED
__,)t,
E'<aminer
cor •ing Agency
Oistt. & Sessions Judge
Gurg~
ANITA
2015.03.02 16:50
PHHC,Chandigarh
~
-89-

12
the persons a,rayed as accused are sought to be summoned. The above
descnlled position also makes it clear that if in the opinion of thf
MagiS1rate, the documents on record establish the commission of
cognizable offence, he is required to take cognizance of the matter and
proceed in accordance with law. The term "taking cognizance" means
application of mind on the evidence befure it and then to decide whether
process is to be issued or nol It is not that mere filing of complaint
concerning cognizable offence, would ipso facto compel a Magistrate to
issue the process. Further, it is also an undisputed legal proposition that
the court is not to pass a summoning order in a cyclostyled manner and
summoning order should show the application of mind and some
reasoning in support of his order of summoning in respect of the offences

'
- ryJ.,,-, for which accused is ordered to be summoned to face trial. Reliance to
'/~,nr this effect is placed on the law reported iri
f) 7
1 Mis GHCL Employees Stock
Option Irn•t Vs. Mis India Info Line Ltd.. 2013(2) RCR <Crl.) 519.
11. Reverting back to the facts of the case under consideration,
before proceeding further, this court would like to mention here that
admittedly, as per complainant's own documents and copies of orders
placed on record, our Hon'ble High Court is already ceased of the matter
on the request of one of the present complainant and has ordered fdr
constitution of Special Investigating Team to inquire into the cause of
injuries on the person of the deceased Krishan Kumar which have been
reflected in report dated 2.4.2011 of learned Magistrate at Gurgaon, under
AiTESiED
----77
ANITA
2015.03.02 16:50
True Scanned Copy Of The Or1glnal
PHHC,Chandigarh
-90-

13
section 176 Cr.P.C. It is also admitted by revisionist that the Special
Investigating Team constituted for conducting inquiry based on the report
of Magistrate dated 2.4.2011, is conducting the inquiry, but no FIR has
been registered so far. Some of the relevant orders ofHon'ble High Court
passed in relevant CRM No.M-34001 of 2012 dated 23.5.2013 and
4.4.2014, 1.5.2014, are reproduced below:-
Present : Sh. RK. Gupta, Advocate

for the petitioner.
Sh. Amit Kaushik, Senior, DAG, Haryana.
Learned State counsel is directed to place

on record the specific reply in light of the report of
Judicial Magistrate 1st Class dated 2.4.2011 and to the
effect whether any enquiry was conducted regarding
the death ofKrishan Kumar in the judicial custody.
Adjourned to 29.7.2013.
The order be conveyed to the State

counsel for compliance.
23.5.2013 sd/-
(K.C. Puri)
Judge.
Present : Mr. Ravi Kama! Gupta, Advocate

for the petitioner.
Mr. B.S. Saini, Sr. DAG, Haryana.

•••
Heard.
In this case, a detailed inquiry was

conducted by the Magistrate, Gurgaon and he gave his
report dated 02.04.20 l I. In that report, he pointed
towards certain injuries on the person of the deceased
and was of the opinion that thorough investigation is
required, The learned State counsel submits that the
matter was sent to the Crime Branch, which was
ATTESTED
--J:6
ANITA
2015.03.02 16:50
True Scanned Copy Of The Orig ma I
PHHC,Chandigarh
-91-
T76
14
entrusted to the Officer of the rank of Inspector to

conduct the inquiry in this case. The DGP, Haryana is
directed to constitute a Special Investigating Team
(SIT) for conducting the inquiry based upon the report
of the Magistrate dated 02.04.2011. The names of the
officers of the SIT be placed on file on the next date of
hearing.
A copy of the order be given dasti under

the signatures of the Reader of this Court to the learned
State counsel.
April 04, 2014. sd/-

(SURINDER GUPTA)
JUDGE.
Present: Mr. Ravi Kamal Gupta, Advocate

for the petitioner(s).
Mr.Anupam Sharma, A.A.G. Haryana,

counsel for respondent-State.
A Special Investigating Tesm (SIT)

comprising of Shri V:P. Godara, IPS, SP/SCB,
Panchkula; Shri Arun Mudgil, HPS, DSP, SCB,
Panchkula; and Inspector Surender Kumar, SCB,
Faridabad, has been constituted to investigate the case.
Lesmed counsel for the petitioner submits

that SIT may be directed to submit periodical reports
about the progress made in the investigation in this
case.
Adjourned for0S.09.2014.
Status report of investigation be

submitted.
May 01, 2014. sdl-
(SURINDER GUPTA)
JUDGE.
At the out set, in respect of the maintainability of this
complaint, this Court is of the view that it is not maintainable as Hon'ble
ATTESTED
~
ANITA
2015.03.02 16:50
PHHC,Chandigarh
-92-
f77
15
7o
High Court is already ceased of the matter and under its directions,
Special Investigating Team (SIT) is already investigating the
circumstances under which Krishan Kumar's death took place. It is no)
out of place to mention here that the base of the present criminal
complaint and of the directions ofHon'ble High Court to detail SIT, is the
same report dated 2.4.2011 of learned Magistrate under section 176
Cr.P.C. Since, there was nothing beyond the contents of report dated
2.4.2011 with the complainants before learned trial court, giving any
finding on merit, was not legally possible since, notice of the incident has
already been taken by Hon'ble High Court before which all three
~/~ complainants here, are the petitioners as on date. It is not out of place to
<'\.,{) r mention here that since, any finding given by learned trial court, in the
J7/' } u
/ given circumstances, would have no legal sanctity once Hon'ble High
Court decides the matter finally, no purpose is going to be served even if
the complaint was allowed by learned trial court and process issued.
Thus, continuing with the present complaint, is a futile exercise of
complainants, since, the complainants have knocked the doors of Hon'ble
High Court, for the same relief.
Here this court would also like to mention that such kind of
litigation where the litigant has availed more than one remedy available
with it simultaneously, has been termed as "abuse .of process of court and
Forum Shopping" by Hon'ble apex court in Tamilnad Mercantile Bank
Shareholders Welfare Association (2} v,. S.C. Sekar and others,
A1'TESTE0
~
ANITA
2015.03.02 16:50
PHHC,Chand1garh
-93-

16 7/
(200,) i §upreme Court ()ses 784. Since, in the instant case, the
complainants have not succeeded to get a favourable report from SIT
appointed under the directions of Hon'ble High Court for the purposes of
registration of FIR. they have adopted this mode of criminal complaint to
continue with to achieve the same purpose which was desirous of them
from Hon'ble High Court. In fact, such kind of tendency is required to be
condemned so has been done by Hon'ble apex court in Tamilnad's case
(supra) by imposing an exemplary cost of '{50,000/- while dismissing the
appeal.
I
12. Notwithstanding this, complaint is also not maintainable on
• /" (_. '_ the ground that when the complainants' themselves are not sure as to who
;;,('
~ ;1/1Jf).I) r committed the crime, how \1 was committed and who all committed a
particular crime and others committed which crime, even for arguments
sake, the complaint is allowed, process against whom shall be issued to
face trial, still remains unclear. Until and unless, the trial court is
provided with some material that so and so had done this, which falls in
the category of such and such offence, how could court on its own issue ~
!
process. It is not out of place to mention here that as per evidence of three
CWs, who are the complainants also, they are not witnesses to
commission of any offence allegedly committed, nor, they have led any
evidence of any witness who could prima facie establish commission of
crime. Even, learned Magistrate's report dated 2.4:2011 under section 176
Cr.P.C., does not mention anybody's name but has a general observation
ATTESTED
--f6
F.:iraniint.r
Ccpy!,,;} A~1tmCY
Oistt. & si~ssi0"s Judge
Gui n
ANITA
2015.03.02 16:50
:w
PHHC,Chandigarh
-94- Parvesh !Waria & !Zr/v,.
17
l,Jnknown.
of involvement of police, medical staff etc. but who among the officials 7 2..
fall in that observation, the said report is also silent, thus, not sufficient to
summon one or more individua~ who even have not been named as
suspects by complainants.
13. Further, the contention of the revisionists that learned trial
court was bound to take cognizance and issue process as complaint
.pertains to commission of cognizable offence, lacks substance in the
instant case, where the witnesses examined in preliminary evidence are
not the witnesses to the facts i.e. eye-witnesses, nor, the version of any of
three witnesses, establishes ingredients of commission of any offence
allegedly committed and mentioned in complaint. A.C. Aggarwal's case
(supra) has been misinterpreted by revisionist, because in the quoted case
there was police reports under Sections 8 and 7 of Suppression o(
Immoral Traffic in Women and Girls Act, 1956, taking of cognizance of
which by Magistrate was must. But, here, learned Magistrate had no such
evidence before him to issue process based on the evidence led including
the report dated 2.4.20 I I. It is not out of place to mention here that even
the report dated 2.4.2011 under section 176 Cr.P.C., is incomplete without
the report of viscera, which had not come by then when report dated
2.4.2011 was prepared Moreover, PMR., Pathology or FSL reports,
speaks about cause of death as coronary artery disease. The relevant para
of report dated 25.8.2010, copy of which is part of complainants'!
documents on record, is as under:•
ATTESTED
~
r..g~i,,~~
Copy .r.:, .'-.:,·,or:-1
n: ... o, .•,.._,,._.,_...,,,.....,,,JlulftA
ANITA
2015.03.02 16:50
True Scanned Copy Of The Ongma!
PHHC,Chand1gartl
-95-

73
18
"On reviewing the chemical analysis report and

Histopathology report as well as Post Mortem
report of above mentioned deceased, we the board
members are of the opinion that above reports and
autopsy findings are consistent with death due to
shock following coronary artery disease."
Moreover, report under section 176 Cr.P.C. can't be equated
with the report under sections 8 and 7 of Suppression of Immoral Traffic
in Women and Girls Act, 1956, as otherwise argued by revisionist,
moresowhen, report dated 2.42011 is incomplete for want of FSL report
,. . fl -~ . about viscera which otherwise give different cause for death and not the
c;.
,
1,e7p
J9.fl 1 one claimed by complainants.
14. Another contention of revisionist that this Court under
section 299(2) Cr.P.C. should direct Magistrate to record evidence as the
accused are unknown, also lacks substance in this case becsuse section
299(2) Cr.P.C. has no application in the facts of present case. Section
299(2) Cr.P.C. read as under:-
Section 299( I) XXX XXX XXX XXX XXX
Section 299(2) If it Bppears that an offence

punishable with death or imprqonment for life has
been committed by some person or persons
unknown, the High Court or the Sessions Jodee
may direct that any Magistrate of the first class
shall hold an inquiry and examine any witnesses
who c;an give eyjdence concernin& the offence and
Ji.iTESTED
-Jt!,
l"."v:;imir:cr
CopwoAwncy
Di$tt. & 3 .i:;sk,.::!i Judge
Gurg~~;
ANITA
2015.03.02 16:50
PHHC,Chand1garh
- , __,/ot/1§"
-96-
Parvesh Kataria & othe,s Vs. Unknown.

19
any degositions so taken may be given in evidence

against any person who is subsequently accused of the
offence, if the deponent is dead or incapable of giving
evidence or beyond the limits of India."
The above mentioned provision has two ingredients for its
application_ Firstly, an offence punishable with death or imprisonment for'
life has been committed by some person or persons unknown_ Secondly,
High Court or the Sessions Judge is satisfied about commission of such
offence. Since, in the instant case, as per viscera report, cause of death is
due to coronary artery disease and there is no evidence that the death of
Krishan Kwnar was result of any injury on his body, so, question of his
. .• . ~ murder does not arise, thus, no offence punishable with death or
~ imprisonment for life is made out. Accordingly, Section 299(2) Cr.P.C.

i71/,9-11r bas no applicatwn
. . m . the given
. ctreumstances.
.
I
15. Here, this Court would also like to observe that when the
complainants themselves are grouping in the dark about the actual roles
played and by whom, in alleged commission of offences, it is not within
the powers of trial court to infer about the identity of individual and his
role in commission of crime and then to issue process. There is difference
between an investigation by police and conducting of an inquiry under
section 190 Cr.P.C. by the Court For example, in case of a blind murder,
investigating officer during investigation, can look for all possible clues
or modes available including interrogation, but trial court is to restrict
itself to the evidence provided on record by complainant for summoning''
ATTESTED
_)t,
ANITA
2015.QJ,02 16:50
PHHC,Chandigartl
-97-
P1uv<sh Kataria & others Vs. Unknown. 7S

20
or at the most the evidence which it can call for in addition to the
evidence brought on record. In the case in hand, where complainants are
not sure as to what exactly had happened and by whom, the best mode to
reach the truth is investigation by police, which is already doing its work
and not the court under Sections 190 to 204 Cr.P.C., moresowhen, the
identity of actual culprits, if any, is not known, nor, anybody's role is
clear. On this point also, this complaint deserves to be dismissed.
16. The revisionist has referred to various authorities but having
due regard to the cited authorities, benefit of the same is not available to
the revisionists, as the quoted authorities are distinguishable on facts.
I 7. As a sequel to the above discussion, this Court do not find
any illegality or irregularity in the impugned order passed in this
complaint which is neither maintainable, nor, has any merit, if evidence
brought on record is taken note of. Thus, the revision is dismissed being
devoid of merit. A copy of this judgment be sent to the learned trial court
forthwith alongwith the record so summoned. Revision file be consigned
to the record room after due compliance.
Announced in open court. (,. (Phalit Sharma),

Dated: 27.01.2015. Additional Sessions Judge,
. Gurgaon .
Certified that this judgment contains twenty (20) pages which have ~en
checked and signed by me. ./2'>
,_
J;_ ·"
i. • (Phalit Shanna),
Dated:27.01.2015. A~ditional Sessions Judge,
Gurgaon.
#6 . t/' :;·.
U,:~?-·
Ci.W.
-23-
lA
IN THE HIGH COURT OF PUNJAB AND HARY ANA AT

CHANDIGARH
CRM-M NO. 5',.;).}}o OF 2015
IN
CRIMINAL APPEAL NO. 34A OF 2014
IN
COMPLAINT CASE NO. 63 OF 2013
(District: Gurgaon)
IN THE MATTER OF :
Lt Col SS Oberoi (Retd),
v~sus
Unknown .. Defendanfs/ Accused

with State ofHaryana
PS.: Bhondsi
DDLENo. l0dt 12.0l.l0r/wCrPC
J76(1A)(a) JMFC Report dt 02.04.11
r/w P.S. Sec 5, Gurgaon FIR No. 75/08
PETITION UIS_ 482 CrPC OF APPELLANT NO. 3 IN
CRIMINAL APPEAL NO. 34A OF 2014 IN COMPLAINT
CASE NO. 63 OF 2013 BY LT COL SARVAOAMAN SINGH
OBEROI (RETD) COMPLAINANT NO. 3 IN COMPLAINT

CASE NO. 63 OF 2013 F'ORG.UA SH!NG oF ORDE.11. PT 21-1-15
RESPECTFULLY SHOWETH:-
ANITA
2015.03.02 16:50
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PHHC,Chandigarh
...
•
-24-
l. That the Petitioner herein Appellant No. 3/ Complainant
No. 3 in Criminal Appeal No. 34A of2014 in CC No. 63 of
2013 in the courts below, Lt Col Sarvadaman Singh Oberoi
(Retd), aged 65 years S/o Capt. H.S. Oberoi, Rio 1102,
Tower-I, Uniworld Garden, Sector-47, Gurgaon, has
preferred this petiton u/s 482 CrPC and Article 227 against
dismissal of the Appeal which has been treated as a
Revision by Sh. Phalit Sharma, Ld. Additional Sessions
Judge, Gurgaon vide judgment and order dated 27.01.15.
That the petitioner has performed his duty under Article
5lA by lodging complaints u/s 302 JPC with the District
Court, Gurgaon in 2011 which was dismissed with costs
and again in 2013 after receipt of fresh information against
unknown persons. Separately, the wife of the deceased
victim of this alleged custodial death of her husband, who
had sought sanction for prosecution which remains
unreplied to this day, was granted legal aid by the Hon'ble
High Court in 2012 and on 27.11.14 this Hon'ble Court was
pleased to add Lt Col Sarvadaman Singh Oberoi as
Petitioner No. 3 in CRM-M No. 34001 of 2012 titled as
Parvesh v. State ofHaryana. That filing of the cases in 2011
and 2013 at the District Court, Gurgaon seeking prosecution
of unknown persons for offence u/s 302 IPC is a
constitutional duty and could never be seen to be a case of
"abuse of process of court and Forum Shopping" as held by
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Sh. Phalit Sharma, Ld. Additional Sessions Judge, Gurgaon
vide judgment and order dated 27.01.15. That the Ld.
Sessions Judge has overlooked the fact that in 2011 the
petitioner was levied costs for approaching the Court of
Sessions rather that the court of Ilaqa Magistrate. In 2013
the Ilaqa Magistrate cited technical difficulty in taking
cognisance on account of bar of Section 209 CrPC of
commitment of at least one accused in any committal to the
Court of Sessions, perhaps being unaware of Section 323
CrPC. This Hon'ble High Court was not conducting the trial
and was only perfonning the supervisory role of directing
independent investigation which is not the same thing as a
criminal trial. That the two are separate and have no clash
with each other as the merits may only be looked into by a
trial court of jurisdiction, in this case the Court of Sessions,
is well settled[ Kunga Nima Lepcha v. State of Sikkim
2010 (4) sec 513]
2. That this high-profile, politically charged alleged judicial-
cum-police-custodial murder case, in which no FIR has yet
been registere!l, throwing judicial precedents into chaos, has
been one of five years of unusual judicial obstruction with
myriad twists and turns during ll.0l.10 to 27.01.15 in the
alleged judicial-cum-police custodial murder of under-trial
Krishan Kumar s/o Ram Parshad on or about 11. 0l. 10 under
admittedly highly dubious circumstances which have never
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{t6 4
been found possible to be explained by the judicial
authority which opined that only an independent
investigation could get to the bottom of the mystery. That
the matter has been further compounded by the politically
engineered decision of police-cum-administration nexus to
refuse to register FIR, and also to refuse to even reply in
negative or positive to request for sanction for prosecution
dated 12.06.11, which is sine qua non for any meaningful
investigation/ prosecution whereas the judicial magistrate
reported injury marks on the dead body, suggestive of a
cognizable offence ''upon his own knowledge. that such
offence has been committed" thus attracting the mischief of
CrPC Section 190 (1) (c) reads with CrPC Section 39(l)(v)
which inter alia state:
"39. Public to give information of certain offences. - (1)
Every person, aware of the commission of, or of the
intention of any other person to commit, any offence
punishable under any of the following sections of the Indian
Penal Code (45 of 1860), namely-
xxxxx
(v) sections 302, 303 and 304 (that is to say, offences
affecting life);
xxxxx
shall in the absence of any reasonable excuse, the burden of
proving which excuse shall lie upon the person so aware,
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forthwith give information to the nearest magistrate or
police officer of such commission or intention."
xxxxxx
"190. Cognizance of offences by Magistrates. - (I)
Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed. "
[Shankar Kisanrao Khade v. State of Maharashtra 2013 (5)
sec 546 at pp.579 para 65. As regards reporting of crimes

an anguished Justice Radhakrishnan asked " Is there not a
duty cast on every citizen of this country... " to report a
crime in the context of Section I9 of POCSO Act, 2012 but
the same equally applies to Section 39(1)(v) CrPC. Surely,
the inquiry magistrate u/s 176(IA)(a) was also a citizen of
this country and had duty coupled with power u/s 190( I)(c)
to take suo moto cognizance of this suspected judicial-cum-
police-custodial murder case "upon his own knowledge,
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that such offence has been committed" thus attracting the
mischiefofCrPC Section 190 (1) (c)]
3. That faced with the situation as explained above, the
Petitoner is left with no alternative remedy for the redressal
of the grievances except to approach this Hon'ble Court by
way of filing the present petition u/s 482 CrPC.
4. That the following Questions of law are involved in the
present application for the kind consideration of this
Hon'ble Court:•
i) WHETHER, once under CrPC 397, the Court of
Sessions, upon a given fact situation, has quashed the
order of dismissal of the trial court in 2013-14 and
sent it for trial according to law, is it permissible
under Article 14 of the Constitution of India for the
co-ordinate Court of Sessions to uphold a subsequent
second dismissal on the very same fact situation,
without any changes at all in 2014-15 ?"
ii) WHETHER under CrPC 482 read with Articles 226
to 228 the High Court, without hearing evidence or
the facts, may unsettle the Article 141 law already
laid down that in every criminal trial in which facts
are yet to be ascertained responsibility to ascertain
facts vests with the competent court may it be
special/ sessions/ trial court?" [It is now well settled
that tbe trial courts have primacy "in certain degree
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lo1 7
of control over ongoing investigations" m
proceedings u/s 190(l)(c) CrPC, which the High
Courts do not enjoy under Article 226. (Kunga Nima
Lepcha v. State of Sikkim 2010 (4) SCC 513]
iii) WHETHER the general law dealing with the general
crime, without any specific legislative Act override
the special law passed by the Legislature for decision
of special criminal provision made in CrPC 176 (IA)
(a)?" with special reference to Civil Appeal No. 4226
of2012 titled Anvar P.V. v. P.K. Basheer & Ors.
5. The Applicants have not filed any such or similar
application either in this Hon'ble Court or in Hon 'ble
Supreme Court of India, previous to this for this relief. That
no !is is pending between the same parties, or between
parties under whom they or any of them claim, litigating on
the same grounds has been previously instituted or finally
decided by a court of competent jurisdiction or limited
jurisdiction except Criminal Appeal No. 34A of2014 in CC
No. 63 of2013 titled Parvesh Kataria and Ors v. Unknown
dated 23.08.14 dismissed by Sh. Phalit Sharma, Ld.
Additional Sessions Judge, Gurgaon on 27.01.15, Criminal
Appeal No. 45 of 2013 in CC No. 63 of 2013 titled Parvesh
Kataria and Ors v. Unknown decided by Sh. S.K. Khanduja,
Ld. Additional Sessions Judge, Gurgaon on 15.02.14 and
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CRM-M 34001 of 2012 titled Parvesh and Ors v. State of
Haryana pending for 29.01. 15.
6. That the complainant No. 1 in Criminal Appeal No. 34A of
2014 titled Parvesh Kataria and Ors v. Unknown (is
Wleducated lady and non petitioner in this petition and is
already the complainant No. I in CRM-M 34001 of 2012
through legal aid cell) is the wife of late Krishan Kumar s/o
Ram Parshad aged about 42 years who was allegedly
brought dead at about 7 A.M. on 12.01.10, to General
Hospital, Gurgaon as a UTP from Bhondsi Jail, Gurgaon,
less than 20 hours after his arrest in good health, in
unexplained circumstances with extensive bruises showing
clearly on his body, and also in photographs taken by
Constable No. 1088 Shri Kuldeep Singh of P.S. Bhondsi,
Gurgaon sometime after 1.45 P.M on 12.01.10, having
been taken into custody in good health in unexplained
circumstances in improper manner, not according to law,
between about 10.30 A.M. and 8.30 P.M. on 11.01.10,
jamatalashi and medical check up reportedly not having
been carried out / admittedly not having been carried out by
removing the clothes to check for bruises, pointing to a
huge conspiracy with the aid and abetment of the apparatus
of State, including politicians, police, jail and medical
officers of the State Government. That whereas it is well
settled that it is mandatory to register FIR in every case of
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19 ( g
custodial death, this is a strange case where no FIR was
ever registered and all that is avaiable is DDLE No. 10
dated 12.01.10 in P.S. Bhondsi and P.S. Bhondsi has
refused to register FIR even after a complaint was made by
complainants herein to S.H.O. P.S. Bhondsi on 23.04.11
enclosing a copy of JMFC Gurgaon Report u/s 176/202
CrPC dated 02.04.11. Complainant No. 2 in Criminal
Appeal No. 34A of 2014 titled Parvesh Kataria and Ors v.
Unknown (non petitioner in this petition is not fully
conversant in the English language) is brother of the
deceased.
7. That the manner in which Sh Pawan Kumar, then JMFC
Gurgaon cancelled valid bail of an innocent Krishan
Kumar, on I 1.01.10, who was regularly attending court
with advocate Sh R.S. Saini on all proper dates of hearing
in apparent collusion with Naib Court Jagdish and Smt
Kiran Lohia working under supervision and control of his
court at Gurgaon on l 1.01.10, was unprecedented and
allegedly illegal, and points to alleged high level conspiracy
in this custodial death matter, which is of Sessions Trial. In
Kishun Singh vs. State of Bihar 1993 (2) SCC 16 it was
held:
"It may immediately be noticed that under the old
provision a Court of Session could not take
cognizance of an offence •as a Court of original
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10
jurisdiction unless the accused was committed to it
whereas under the recast section as it presently stands
the expression the accused has been replaced by the
words the case. As has been pointed out earlier, under
section 190 cognizance has to be taken for the
offence and not the offender: so also under section
193 the emphasis now is to the committal of the case
and no more on the offender. So also section 209
speaks of committing the case to the Court of
Session. On a conjoint reading of these provisions it
becomes clear that while under the Old Code in view
of the language of section 193 unless an accused was
committed to the Court of Session the said court not
take cognizance of an offence as a court of original
jurisdiction; now under section 193 as it presently
stands once the case is committed the restriction
disappears......... On the magistrate committing the
case under section 209 to the Court of Session the bar
of section 193 is lifted thereby investing the Court of
Session complete and unfettered jurisdiction of the
Court of original jurisdiction to take cognizance of
the offence which would include the Summoning of
the person or persons whose complicity in the
commission of the crime can prima facie be gathered
from the material available on record."
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!95 11
8. It was held, on 02.04.11, by Sh. Mukesh Rao, then

learned JMFC Gurgaon, inquiry magistrate u/s 176
(lA)(a) in the custodial death case" ... Sukhbir Singh,
Minister in Haryana Govemment...Report is
submitted accordingly with the opinion that the
matter needs thorough investigation from some
independent/ impartial agency as there seems to he
indulgence of senior political boss, superior officers,
jail authorities, doctors and others." But even after a
lapse of 24 months no such independent investigation
appears to have been ordered, and the proof of this is
as follows - all such investigations, even by NHRC,
after the 02.04.11 submission of report u/s 176 CrPC
to the learned District & Sessions Judge, Gurgaon,
are mandated to be held under CrPC 176, whereas
appellant/ complainant in Criminal Appeal No. 34A
of 2014 in CC No. 63 of 2013, who had immediately,
after receipt of inquiry report under RTI Act on
22.04.11, approached the P.S. Bhondsi, Gurgaon on
23.04.11 for lodging FIR by giving a written
complaint, and later also appeared before learned
District & Sessions Judge, Gurgaon on 19.05 .11, and
also sought additional information under RTI Act
from PIO, Sessions Court, Gurgaon on 10.06.11, has
not been informed to remain present at any such
purported inquiry, in alleged contradiction of CrPC
176(1A)(a) and (4)-CrPC 176 provides:
"Section 176 - Inquiry by Magistrate into cause of
death
(1 ). When any person dies while in the custody
of the police ...... any Magistrate so empowered
may hold an inquiry into the cause of death
either instead of, or in addition to, the
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12
investigation held by the police officer; and if

be does so, he shall have all the powers in
conducting it which he would have in holding
an inquiry into an offence.
(IA). Where,-
(a) any person dies or disappears, or
(b)XXXXXXX
while such person or woman is in the custody
of the police or in any other custody authorised
by the Magistrate or the Court, under this Code
in addition to the inquiry or investigation held
by the police, an inquiry shall be held by the
Judicial Magistrate or the Metropolitan
Magistrate, as the case may be, within whose
local jurisdiction the offences has been
committed.
(2). The Magistrate holding such an inquiry
shall record the evidence taken by him in
connection therewith in any manner hereinafter
prescribed according to the circumstances of
the case.
(3). Whenever such Magistrate considers it
expedient to make an examination of the dead
body of any person who has been already
interred, in order to discover the cause of his
death, the Magistrate may cause the body to be
disinterred and examined.
(4). Where an inquiry is to be held under this
section, the Magistrate shall, wherever
practicable, inform the relatives of the
deceased whose names and addresses are
known, and shall allow them to remain present
at the inquiry,
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13
(5). The Judicial Magistrate or the

Metropolitan Magistrate or Executive
Magistrate or police officer holding an inquiry
or investigation, as the case may be, under
Sub-Section (IA) shall, within twenty-four
hours of the death of a person, forward the
body with a view to its being examined to the
nearest Civil Surgeon or other qualified
medical person appointed in this behalf by the
State Government, unless it is not possible to
do so for reasons to be recorded in writing.
Explanation - fn this section, the expression
''relative" means parents, children brothers,
sisters and spouse.''
9. That the delay in framing charges is well beyond the
nine months mandated after framing of charges in
investigating and bringing to book the alleged
conspirators in custodial death for which capital
punishment has now been made mandatory in
Mehboob Batcha v. State rep by Supdt of Police
2011(3) SCC (Cri) 70, 2011 (7) SCC 45. Also, by not
permitting investigation the framing of charges is still
a far cry; vide High Court of Punjab & Haryana
Gazette (Extraordinary) No. 52 Rules/II.D.4 dated
12.03.08 published 17.03.08 in Part V (a) Criminal
Trials and as also decided by the Apex Court on
29.03.11, the District Administration has breached
the mandate of the High Court and the intent of
Article 141 law laid down by the Apex Court on
02.08.2005 in Salem Advocate Bar Association v
Union of fndia 2005 AIR 3353, 2005 6 SCC 344
which is as follows:
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14
"V. Criminal trials and criminal appeals before

Criminal courts
(a) Criminal Trials
1. Criminal Trials should be classified on the
basis of offences, sentence and whether the
accused is on bail or in jail. Capital punishment
cases, rape cases and cases involving sexual
offences or dowry deaths should . be kept in
Track I. Other cases where the accused have
been denied bail should be kept in Track II.
Cases which affect a large number of persons
such as cases of mass cheating, economic
offences, illicit liquor tragedy and food
adulteration cases, etc. should be kept in Track
HI. The offences which are tried by special
courts such as POTA, NDPS Act, Prevention
of Corruption Act, etc. should be kept in Track
IV whereas all other offences are to be listed in
Track V. The endeavour should be to complete
Track I cases within a period of nine months,
Track II and Track III cases within a period of
one year, Track IV within fifteen
months ........... period shall commence from the
framing of charges"
I 0. That there was excessive delay in viscera report and
who was authorized to give viscera report was not
mentioned in inquiry magistrate report. It was
deliberate failure on the part of then Jail
Superintendent to timely intimate the inquiry
magistrate that whereas case was of P.S. Sector 5,
Gurgaon, and whereas Gurgaon Court Escort should
have left deceased at Jail, it was actually an on
leave/absent Constable No. 3134 Angrej Singh of
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P.S. City, Gurgaon, reportedly deployed as gunman

of Haryana Minister who singly and alone had left
deceased in a badly bruised condition at Jail after
about 5.35 P.M. and before about 8.30 PM on
I 1.01.10; reportedly deceased was unwell at 8.30
P.M. and not eating his food properly, but was never
medically checked by removing his clothes, as
admitted by Dr Renu Sharma, till after being brought
dead to General Hospital Gurgaon on 12.01.10. That
the body of deceased was released without
pennission of magistrate was informed to High Court
of Punjab & Haryana, Chandigarh through its
Registrar General by email on 14.01.10, but the
concerned officers somehow or the other failed to
uphold the constitutional right to life under various
provisions under the Constitution of India including
Article 21 & Article 5lA. Toe concerned officers of
the Commissionerate of Police, Gurgaon through its
Commissioner, Bhondsi Jail, Gurgaon through its
Superintendent, State of Haryana, Chandigarh,
through its Chief Secretary and Deputy
Commissioner, Gurgaon, Mini-Secretariat, Gurgaon,
did not bother to even see that NHRC was informed
about delay in post mortem, injuries noted on body of
deceased and in photographs and by which magistrate
u/s 202 CrPC were informed to High Court of Punjab
& Haryana, Chandigarh through its Registrar General
by email on 14.01.10, which it was their duty under
Article 51A to inquire, with the result that NHRC
was misled into dismissing this case on 02. 07.10 as
one of routine death, allegedly on a false affidavit
dated 26.02.10 submitted by Jail Superintendent,
Bhondsi which illegally contradicts the judicial
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finding of JMFC, Gurgaon u/s 202 CrPC read with

CrPC Section 176 (l) & (IA). The NHRC case detail
is as follows:
''NHRCCase
Details of File Number: 181/7/5/2010-AD
Diary Number 6432 dt 07.02.10,
Name of the Complainant SUHAS CHAKMA,
DIRECTOR, Address NATIONAL CAMPAIGN
FOR PREVENTION OF TORTURE, C-3/441-C,
JANAKPURI, WEST DELHI , DELHI,
Name of the Victim KRISHNA KUMAR,
Address AS ABOVE, WEST DELHI , DELID,
Place of Incident BHONDSI JAIL GURGAON ,
HARYANA,
Date offncident 1/12/2010
Direction issued by the Commission
The complainant drew the attention of the
Commission towards death of UTP Krishna Kumar
allegedly due to torture at Bhondsi Jail, Gurgaon,
Haryana on 12-01-2010. It was prayed as under:-
Direct the State Government of Haryana to order a
judicial inquiry into the death of undertrial prisoner,
Mr. Krisbana Kumar due to alleged torture at
Bhondsi Jail, Gurgaon and delay in providing
medical treatment, and sent the report within two
weeks time; Direct the State Government of Haryana
to sent the post-mortem report of the deceased which
should have been conducted in full confonnity with
the NHRC guidelines within two weeks time; Direct
the State Government of Haryana to suspend the
Superintendent of Bhondsi Jail, Gurgaon to facilitate
fair and impartial investigation and further, take
appropriate legal action against anyone found to be
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guilty; Direct the State Government of Haryana to

provide an interim compensation of Rs 10 lakhs to
the next of kin of the deceased; and Take any other
measures the NHRC deems fit and proper. Upon
perusal, the Commission vide proceedings dated
04/02/20 to directed as under:- "This is a case of
death in jail allegedly due to torture and intimation
about death in jail as per guidelines of the
Commission appear to have not been received. Issue
notice to the Deputy Commissioner, Gurgaon,
Haryana and the Superintendent, District Jail,
Gurgaon as to why this death was not reported to the
Commission with 24 Hrs of occurrence. Both the
above authorities are also directed to submit requisite
reports within eight weeks.• Pursuant to the
directions of the Commission, Superintendent,
District Jail, Gurgaon, Haryana vide communication
dated 26/02/2010 stated as under:- "It is submitted
that UTP Krishna Kumar S/o Ram Parsad was
admitted in this Jail on 11-01-2010 in case FIR No.
75/08 u/s 324, 506 PS Sec-05 Gurgaon. The accused
got seriously ill on ll/12-01-2010 and was sent to
General Hospital Gurgaon for treatment in serious
condition accompanied by Jail Pharmacist and
escorted by Jail Guard. He was declared dead at
General Hospital Gurgaon by Medical Officer. The
Honble Commission is further apprised that a judicial
inquiry was got conducted by Sh. Mukesh Rao,
Judicial Magistrate 1st Class, Gurgaon on 12-01-
2010 into the cause of death of UTP on the order of
Ld Distt. and Session Judge Gurgaon. There was no
delay in providing proper medical treatment to the
deceased by Jail Medical Officer. No torturing of
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deceased took place as alleged. Due postmortem was

got conducted on the body of deceased on 13-01-
2010 by a panel of three Medical officer constituted
by CMO General Hospital Gurgaon in the presence
of Sh. Mukesh Rao, Ld Judicial Magistrate Ist Class.
The cause of death in this case will be given after
receiving viscera report as mentioned in the
postmortem report. District Magistrate Gurgaon,
Deputy Commissioner Of Police (West) Gurgaon and
SHO Police Station Sec-05, Gurgaon, were duly
informed vide this Office P'IM No. 585-89 dated 12-
01-2010 message delivered by hand by Asstt. Supdt
Jail Bijender Singh Joon and Warder Gaje Singh of
this Jail. Financial Commissioner and Principal
Secretary, Director General of Prisons, Haryana and
your good Office were also intimated vide above
quoted PTM No. The National Hwnan Right
Commission is further apprised that no torturing of
UTP Krishna Kumar S/o Ram Parsad took place at
this Jail as alleged in the complaint. No apparent
injury marks were seen on the deceased body as
opined by the Jail Medical Officer on the basis of
Postmortem report. Thus the complaint seems to be
misleading and mischievous and far away from
truth." Shri Nand Lal Shukla, President,
Manavadhikar Emergency Helpline Association also
has drawn attention of the Commission towards this
death in jail. The Commission has perused record.
Inquest was conducted by a Judicial Magistrate. No
delay has been found in providing treatment to the
deceased. Three doctors have conducted Post
Mortem. Viscera sent for examination. In the facts
and circumstances now on record, no further action
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19
by the Commission is called for. The case is closed.

Action Taken
Concluded and No Further Action Required (Dated
7/2/2010)
Note: For further details kindly contact National
Human Rights Commission, Copernicus Marg, New
Delhi, PIN I 10001 Tel.No. 23385368 Fax No.
23384863 E-Mail: covdnhrc@hub.nic.in"
I I.That the inquiry magistrate report is also silent on
how such an important witness as Constable No.
3134 Angrej Singh of P.S. City, Gurgaon, was never
examined for 14 months till 25.03.11; neither is there
any explanation from inquiry magistrate for not
having taken statement of S.H.O. P.S. City, Gurgaon
on or after 28.05.11, by which date it had been
clarified that there was violation of the mandate that
two constables is the minimum escort for any one
prisoner escort party. That the inquiry magistrate
was remiss for not intimating to higher authorities,
such as District & Sessions Judge, Gurgaon, Deputy
Commissioner, Gurgaon and Commissioner Police,
Gurgaon till 02.04.11 that deceased had been beaten
in custody, so as to enable them to report the matter
within 24 hours to NHRC as per mandate of Article
141. As a result none of these authorities have made a
report to NHRC within 24 hours, or even at al~ till
today. That the inquiry magistrate was remiss for not
having been able to even ascertain that the correct
S.H.O. was not S.H.O. P.S. City, Gurgaon but S.H.O.
P.S. Civil Lines, Gurgaon so far as Constable No.
3134 Angrej Singh was concerned.
12.Even another aspect of grave violation of Article 141
law by State of Haryana bears repetition, since it
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20
closed the route for complainant to have binding

directions issued by District Police Complaints
Authority, Gurgaon to errant police officials, and by
State Police Complaints Authority, Haryana to
Commissioner of Police, Gurgaon. The Apex Court
in Prakash Singh v Union of India 2006 (8) SCC 1
held:
"Police Complaints Authority:
(6) There shall be a Police Complaints
Authority at the district level to look into
complaints against police officers of and up to
the rank of Deputy Superintendent of Police.
Similarly, there should be another Police
Complaints Authority at the State level to look
into complaints against officers of the rank of
Superintendent of Police and above. The
district level Authority may be headed by a
retired District Judge while the State level
Authority may be headed by a retired Judge of
the High Court/Supreme Court The head of
the State level Complaints Authority shall be
chosen by the State Government out of a panel
of names proposed by the Chief Justice; the
head of the district level Complaints Authority
may also be chosen out of a panel of names
proposed by the Chief Justice or a Judge of the
High Court nominated by him. These
Authorities may be assisted by three to five
members depending upon the volume of
complaints in different States/districts, and
they shall be selected by the State Government
from a panel prepared by the State Human
Rights Commission/Lok Ayukta/State Public
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Service Commission. The panel may include

members from amongst retired civil servants,
police officers or officers from any other
department, or from tlle civil society. They
would work whole time for the Autllority and
would have to be suitably remunerated for the
services rendered by them. The Authority may
also need the services of regular staff to
conduct field inquiries. For this purpose, they
may utilize the services of retired investigators
from the CID, Intelligence, Vigilance or any
other organization. The State level Complaints
Authority would take cognizance of only
allegations of serious misconduct by the police
personnel, which would include incidents
involving death, grievous hurt or rape in police
custody. The district level Complaints
Authority would, apart from above cases, may
also inquire into allegations of extortion,
land/house grabbing or any incident involving
serious abuse of authority. The
recommendations of the Complaints Authority,
both at the district and State levels, for any
action, departmental or criminal, against a
delinquent police officer shall be binding on
the concerned autllority....The aforesaid
directions shall be complied with by the
Central Government, State Governments or
Union Territories, as the case may be, on or
before 31st December, 2006 so that the bodies
afore-noted became operational on the onset of
the new year. The Cabinet Secretary,
Government of India and the Chief Secretaries
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of State Governments/Union Territories are

directed to file affidavits of compliance by 3rd
January, 2007."
Orders of the Apex Court in pursuance of this
judgement (Prakash Singh supra) were issued on
04.10.10, 08.11.10, 06.12.10, 10.01.11, 24.01.11 and
11.04.11. The non compliance status of State of
Haryana is apparent from a perusal of
Commonwealth Human Rights Initiative Report on
Compliance by State of Haryana dated 03.12.09:"6.
Police Complaints Authorities...Constitution The
Apex Court expressly ordered that complaints
authorities be established at both the state and the
district level. Section 59 of the Haryana Police Act
sets up a Police Complaints Authority at the state
level. However the Act at section 68 of Haryana
Police Act states that the State Government may
create a District PCA as and when required. The
directive is binding on all states and creation of these
Authorities is not optional.
Members
As per the Apex Court's directive the State level
PCA is to be Chaired by a retired Judge of the High
Court or Supreme Court. The Haryana Police Act sets
up a one man Authority at the state level. According
to the Act the Chair may be a retired Judge or civil
servant. This violates the Supreme Court directive
which clearly does not allow a civil servant to chair
the body. The purpose behind having a judge as the
chair was to maintain an independence and neutrality
within the body as well as have a person with sound
knowledge of the law. Having a civil servant chair
this body undermines this pwpose completely. In
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addition to this the Authority is to function solely on

the abilities of one person. Not having any other
members is largely going to render the body
inefficient and unable to live up to its mandate.
Powers
Of great concern is that the State level PCA does not
have binding powers.As per the Act, it is optional for
the PCA to communicate their findings to the State
Government. Further, the State Govermnent shall
consider the fmdings and recommendations of the
PCA and take appropriate action. This language is
quite contradictory to the Supreme Court's directive
which clearly states that the PCA's recommendations
against a delinquent police officer shall be binding.
As a result, the Haryana State level PCA as it stands
now, is merely a recommendatory authority, which
dilutes its purpose as envisioned by the Supreme
Court.
Conclusion
The creation of a State PCA is a clear deviation from
the Apex Court's ruling. The statute has rendered the
body toothless and ineffective by making its
recommendations non-binding. The composition does
not guarantee it to be an independent and impartial
body.
13.More importantly, the creation of district level PCAs
remain at the discretion of the state Government As
a result, the Haryana Government is not in
compliance with this directive."That the deceased
UTP, Krishan Kumar, was on bail in the case
pending before the Court of Sh Pawan Kumar, then
JMFC Gurgaon in Case No. 335 of 21.04.08 State v.
Krishan, P.S. Sector 5 Gurgaon u/s 324/506 IPC,
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punishable with maximum 3 years imprisonment,

from last date of hearing, 05. 08. 09 till next date of
hearing, i.e. 11.2.10, but as per RTI Reply of P.S.
Sector 5, Gurgaon dated 04.05.11 said UTP is
claimed to have jumped bail and been absconding
since 21.04.08, and hence Sh Pawan Kumar, JMFC
Gurgaon remanded him to 14 days custody on
11.01.10. This RTI reply was completely false. It
appears that the Naib Court Jagdish, who was
allegedly close to Haryana Minister, Sukhbir Kat aria
may have been managed to obtain this inexplicable
14 day remand order from Sh Pawan Kumar, then
JMFC Gurgaon, in blatant violation of Apex Court
ruling in Joginder Kumar V, State ofU.P. 1994 sec
(4) 260 that necessity of arrest must be established
upon the following four principles:
"(i) The case involves a grave offence like murder,
dacoity, robbery, rape etc., and it is necessary to
arrest the accused and bring his movements under
restraint to infuse confidence among the terror
stricken victims.
(ii) The accused is likely to abscond and evade the
processes oflaw.
(iii) The accused is given to violent behaviour and is
likely to commit further offences unless his
movements are brought under restraint
(iv) The accused is a habitual offender and unless
kept in custody he is likely to commit similar
offences again.»
14. That a false affidavit, or at the very least, a
misleading affidavit dated 26.02.10 appears to have
been filed, illegal! y contradicting the judicial findings
of JFMC, Gurgaon u/s 176/202 CrPC, by Jail
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Superintendent, Bhondsi behind the back of the

complainants, before National Human Rights
Commission in NHRC Case File Number:
IS!n/5/2010-AD Diary Number 6432 dt 07.02.10 to
get the case dismissed, without talcing on record the
mandatory affidavit of the Deputy Commissioner,
Gurgaon, who was also issued notice, in view of the
plea of an NGO dated 07.02.10 to "Direct the State
Government of Haryana to suspend the
Superintendent of Bhondsi Jail, Gurgaon to facilitate
fair and impartial investigation and further, take
appropriate legal action against anyone found to be
guilty;". This is mentioned in the NHRC Order dt
02. 07.l 0 reproduced at paragraph 5 above. The
finding of the NHRC dated 02.07.10 being based
upon an illegal affidavit of the executive negating a
judicial fmding u/s 176/202 CrPC, which has been
held to be superior to the highest executive's findings
needs must be neutralised by striking down the
affidavit dated 26.02.10 filed by Jail Superintendent,
Bhondsi as it is non est, illegal and baseless. In AR.
Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR
914, it was held by the Constitution Bench at pp. 942,
that there could be no better safeguard than a court of
Jaw for any one accused of a criminal offence:
''Astounding as it appeared to us, in all
solemnity it was submitted that investigation of
an offence by a superior police officer qffords
a more solid safeguard compared to a court.
Myopic as this is, it would topsy turvy the
fandamental beliefthat lo a person accused of
an offence there is no better sqfeguard than a
court"
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15.From 10.30 AM to 5.35 PM on 11.01.10 the

whereabouts and records in terms of Guidelines for
Arrest Nos. l, 2, 3, 5, 6, 7 & 9 in D.K. Basu v. State
of West Bengal (1997) 1 SCC 416 are completely
and wholly absent. Case was of Sector 5 Gurgaon,
which on oral submission accepts through Virender,
Constable No. 719 of Sector 5, Gurgaon that he was
picked up at I0.30 AM, and jamatalashi was done but
no record kept - then there is a hiatus of 7 to 10 hours
without any record, then Constable No. 3134 Angrej
Singh of City P.S. Gurgaon, (who was not on
prisoner duty) handed over deceased at Bhondsi Jai~
(whereas case is of Sector 5 Gurgaon) and is not seen
by inquiry magistrate till 25. 03. II for 14 months! !
Neither of these constables have been able to explain
any cogent reason why it was so very essential to
arrest the deceased and hand him over in jail; the
police had the power to arrange with the magistrate to
let him go at any time if it so wished. S.H.O. Sector 5
P.S. has falsely stated in the RTI reply dt 04.05.11
sent vide DCP (HQ) Gurgaon letter No. 645-D/RTI
dt 06.05.11, R.L. 2896 dt 10.05.11 received on
12.05 .11, that deceased Krishan had absconded in the
Case 355 of 21.04.08 from 21.04.08, onwards till
apprehended on I 1.01.10.
16. This is a completely false and baseless statement as
Sh Pawan Kumar, JMFC, Gurgaon has issued bail
bond on 28. 07. 08 for Rs 15000/- as per certified
record obtained on 28.04.l I. The last order of bail
was from 05.08.09 to next date of hearing fixed for
I 1.02.10. Tne circumstances of how he could have
jumped bail before 11.02. JO and been arrested for
bail jumping on 11. 0l. l Oand sent to jail for 14 days
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custody by Sh Pawan Kumar JMFC Gurgaon are

unexplained from the case file according to the report
of Sh Mukesh Rao, then learned JMFC. Sh Mukesh
Rao, learned JMFC has deliberately omitted to
mention the true conspiracy unfolded in the case file
as it took only a few minutes of inspection of the file
to conclude that two, and not one case seems to be
running in this file at the concurrent period from and
after !st/5th May 2009 tn 5th/12th August 2009 - 1st
May 2009 & 5th August 2009 are dates where
accused was present with his counsel, and 5lh May
2009 & 121h August 2009 are dates where accused is
stated to be in jail, and not produced, but no court
documents were served upon him, only two
constables came to his house in December 2009 and
informed that husband of complainant had jumped
bail and was to be in the Court on l 1.01.10. A
possible motive for the alleged crime emerges from
the twin Ist/51h May 2009 dates highlighted - the
deceased's brother, Sh Om Parkash Kataria s/o Sh
Ram Parshad had complained in April 2009 to
Election Commission of India about massive
fraudulent registration of votes in Gurgaon Village by
Haryana Minister Sh Sukhbir Kataria, who appears to
have colluded with Naib Court Jagdish to harm the
brother of Sh Om Parkash Kataria, possibly with a
view to threaten Sh Om Parkash Kataria to cease and
desist, by misusing process of law. Sh. Pawan
Kumar, erstwhile learned JMFC Gurgaon and Smt
Kiran Lohia posted in Sessions Court Gurgaon have
permitted this fraud to be perpetrated on the criminal
judicial process.
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~ 17.It has also been confirmed that the deceased was

never handed over to the Escort Guard in the Court
Complex by Constable No. 719 Virender Singh of
Sector 5 Police Station or by any other person. Also
it bas been confirmed that no medical was conducted
on the deceased since all police and other officials etc
claimed he was hale and hearty before he was handed
over to Bhondsi Jail between about 5.35 P.M. and
8.30 P.M. on I 1.01.10 by Constable No. 3134 Angrej
Singh of City P.S. Gurgaon, and therefore he might
even have been taken to City P.S./ Civil Lines P.S.
Gurgaon or residence/ infamous office basement of
Haryana Minister, Sukhbir Kataria at I Bhateri Villa,
Gurgaon after 10.30 A.M. and all paper work got
surreptiously completed in absentia as appears from
the jamatalashi fiasco revealed by the admitted fact of
recovery by doctors during post mortem of bidi ( a
banned item inside any jail) and metallic pendent.
Very cleverly, it appears to be a conspiracy in action,
in the Post Mortem Report, the mention of ''bidi", a
banned item is found deleted. The witnesses are clear
that ''bidi" was found in the pockets of dead body.
A. The jail doctor has confirmed that no check of
deceased was done by removal of clothing, and hence
Dr Renu Sharma Medical Officer then posted at
District Jail, Bhondsi could not positively confmn
that he was not beaten before being brought to jail.
The police had not got any medical done before or
after arrest either. The frrst doctor to thoroughly
examine the deceased did so only after he was
brought dead to hospital. Clearly the death on
11/12.01.10 is on account of beating he received
"''hile in custody - it is for police and jail officers to
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explain the beating marks and the unnatural death in

police custody which has been shamefully covered up
by the government doctors under political influence.
He was admittedly arrested on his two feet in good
health less than 20 hours before bis unexplained
death in custody, and admittedly he was brought dead
to General Hospital Gurgaon less than 20 hours after
bis arrest, there was unexplained delay of 26 hours in
carrying out of post mortem, video recording of body
was done late and matter was not officially reported
to NHRC within 24 hours, temperature of body was
also not recorded on arrival in hospital, clearly
violating Apex Court and NHRC guidelines which
are of mandatory nature. That the post mortem report
appears to be fudged under political pressure -
PGIMS, Rohtak revealed nomial "mild to moderate
atherosclerosis" in both the coronary arteries, which
is quite the nonn for a 40 year old and held that the
heart "did not show any significant Pathological
change." The opinion of the medical board omitted to
make any mention of the words "did not show any
significant Pathological change" and instead
mentioned death due to "shock following coronary
artery disease." The beating marks noted by inquiry
magistrate were also ignored by the medical board.
Deceased had no history of coronary artery disease
(CAD) and the post mortem found no signs typical in
cases of sudden death from CAD. Death from CAD
as opined by Medical Board is most unlikely in view
of finding: "Heart:-Representative microsections
examined from various portions of heart do not show
any significant Pathological change. Both the
coronaries show mild to moderate atherosclerosis."
-52-
30
Death from injuries to vital organs very much more

likely in view of finding: "Kidney and Spleen:-
Representative microsections from kidney & Spleen
show congestion." Death from injuries to vital organs
is most likely as JMFC u/s 176 CrPC found marks of
beatings on the back which are consistent with
congestion in kidney & spl~en. Mild to moderate
atherosclerosis does not cause death. The shock from
a violent beating is however known to cause heart
failure. ln such a case the evidence/ finding recorded
by inquiry magistrate will override the medical board
is well settled. [K.H. Shekarappa v State of
Karnataka 2009 (I 7) SCC 1, Munshi Singh Gautam
(D) & Ors. V. State ofM.P. 2005 (9) SCC 631, Saroj
Rani v. Govt ofNCT of Delhi, TLR 2010 (5) Del 407]
I8. All these unexplained facts and delays have been
sought to be explained by inquiry magistrate, at
Pages 16-17 of his report dt 02.04.11, as revealing
hand of the Haryana Minister from Gurgaon, Sukhbir
Kataria, as follows, "... Sukhbir Singh, Minister in
Haryana Government....Report is submitted
accordingly with the opinion that the matter needs
thorough investigation from some independent/
impartial agency as there seems to be indulgence of
senior political boss, superior officers, jail authorities,
doctors and others." Be that as it may, there was a
sudden transfer of inquiry magistrate on 01.04.11
within 6 days of talcing statement on 25.03.11 of
Constable No. 3134 Angrej Singh of City P.S.
Gurgaon/ Civil Lines P.S. Gurgaon and the inquiry
was not taken to a logical conclusion, and abandoned
halfway as a result.
19.The media has reported the disturbing news that:
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I (1) Prisoner.; death-needle of suspicion points at

'
politicians, cops, doctors Daily Bhaskar 30.04.11
(2) Judge for probe by independent agency in
Gurgaon custodial death The Tribune 30.04.11
(3) Judges report pins murder on minister top cops
HT Gurgaon 01.05.11
20. That this custodial death case appears to be a deep
rooted conspiracy of silence, allegedly involving
"senior political boss, superior officers, jail
authorities, doctors and others." In such type of a
case, in Munshi Singh Gautam (D) & Ors. V. State
ofM.P. 2005 (9) SCC 631 decided on 16.11.2004 the
Apex Court was constrained to hold:
''Rarely in cases of police torture or custodial
death, direct ocular evidence of the complicity
of the police personnel alone who can only
explain the circumstances in which a person in
their custody had died. Bound as they are by
the ties of brotherhood, it is not unknown that
the police per.;onnel prefer to remain silent and
more often than not even pervert the truth to
save their colleagues and the present case is an
apt illustration as to how one after the other
police witnesses feigned ignorance about the
whole matter... ... The exaggerated adherence
to and insistence upon the establishment of
proof beyond every reasonable doubt by the
prosecution, at times even when the
prosecuting agencies are themselves fixed in
the dock, ignoring the ground realities, the
fact-situation and the peculiar circumstances of
a given case, as in the present case, often
results in miscarriage of justice and makes the
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justice delivery system suspect and vulnerable.

In the ultimate analysis the society suffers and
a criminal gets encouraged. Tortures in police
custody, which of late are on the increase,
receive encouragement by this type of an
unrealistic approach at times of the courts as
well because it reinforces the belief in the mind
of the police that no harm would come to them
if one prisoner dies in the lock•up because
there would hardly be any evidence available
to the prosecution to directly implicate them
with the torture. The courts must not lose sight
of the fact that death in police custody is
perhaps one of the worst kind of crimes in a
civilized society, governed by the rule of law
and poses a serious threat to an orderly
civilized society. Torture in custody flouts the
basic rights of the citizens recognized by the
Indian Constitution and is an affront to human
dignity. Police excesses and the mal-treatment
of detainees/under-trial prisoners or suspects
tarnishes the image of any civilised nation and
encourages the men in 'Khaki' to consider
tltemselves to be above the law and sometimes
even to become law unto themselves. Unless
stern measw-es are taken to check the malady
of the very fence eating the crops, the
foundations of the criminal justice delivery
system would be shaken and the civilization
itself would risk the consequence of heading,
towards total decay resulting in anarchy and
authoritarianism reminiscent of barbarism. The
cow-ts must, therefore, deal with such cases in
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a realistic manner and with the sensitivity

which they deserve, otherwise the common
man may tend to gradually Jose faith in the
efficacy of the system ofjudiciary itself, which
if it happens will be a sad day, for any one to
reckon with ..... Though Sections 330 and 331
of the Indian Penal Code, 1860 (for short the
'IPC') make punishable those persons who
cause hurt for the purpose of extorting the
confession by making the offence punishable
with sentence up to 10 years of imprisonment,
but the convictions, as experience shows from
track record have been very few compared to
the considerable increase of such onslaught
because the atrocities within the precincts of
the police station are often left without much
traces or any ocular or other direct evidence to
prove as to who the offenders are. . .. The
courts are also required to have a change in
their outlook approach, appreciation and
attitude, particularly in cases involving
custodial crimes and they should exhibit more
sensitivity and adopt a realistic rather than a
narrow technical approach, while dealing with
the cases of custodial crime so that as far as
possible within their powers, the truth is found
and guilty should not escape so that the victim
of the crime has the satisfaction that ultimately
the majesty oflaw has prevailed"
21.Section 106 of the Indian Evidence Act, 1872
provides "When any fact is specially within the
knowledge of any person, the burden of proving that
fact is upon him." The Apex Court while dealing
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with this aspect of custodial death has held in K.H.

Shekarappa v State ofKamataka 2009 (17) sec l:
"17. The fact that the deceased and injured
were arrested and brought to the Police Station
is not in dispute. It is not in dispute that the
deceased and the injured were brought to the
Police Station on their two feet. The testimony
of the Medical Officers, who had performed
autopsy on the dead bodies of the two
deceased, would indicate that both the
deceased were brought dead to the hospital.
When the deceased, who were brought to the
Police Station, were alive and were produced
dead before the Medical officer, it is for the
appellants to explain as to in which
circumstances they had died. The deceased
were in the custody of the appellants, who
were police officials. During the time when
they were in police custody they bad expired.
Therefore, it was within the special knowledge
of the appellants as to bow they had expired. In
view of the salutary provisions of Section I06
of the Evidence Act, I872, it was for the
appellants to offer explanation regarding the
death ofthe two deceased."
22.Krishan Kumar was admittedly arrested on his two
feet at 10.30 A.Mon 11.01.10 and less than 20 hours
later was brought dead as UTP to General Hospital,
Gurgaon with extensive bruises on his back. In view
of the grave importance attached to custodial deaths
documentation of this case bas been made widely
available on the world wide web.
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23.ln Mehboob Batcha v. State rep by Supdt of Police

2011 (7) SCC 45, the Apex Court held:
• 15. We are surprised that the accused were
not charged under Section 302 IPC ..they
should have been charged under that provision
and awarded death sentence, as murder by
policemen in police custody is in our opinion
in the category of rarest of rare cases deserving
death sentence, but surprisingly no charge
under Section 302 IPC was framed against any
of the accused. We are constrained to say that
both the trial Court and High Court have failed
in their duty in this connection."
24. That the complainants have collected circumstantial
evidence of this deep rooted conspiracy, which prima
facie points to wiexplained custodial death, and in
order to obtain evidence of murder in custody and
establish acts of omission and commission amounting
to offences under Sections 302, 367, 304, 325, 326,
193, 197, 201 & 220 IPC read with Sections 34, 35,
36, 37, 38, 39, 109, 120-B, 177, 191 & 192 IPC
which may be required to be in accordance with
Rules 16.38 and 18.44 of Punjab Police Rules, 1934,
Volume Il (as applicable in Haryana State, Reprint
Edition 2008 amended upto 31.03.08) (Rules silent
on custodial death/ torture), would need the
assistance of the competent Court of Sessions to
examine witnesses and summon documents, some of
which are awaited under the RTI Act, 2005. List of
witnesses is enclosed. List of witnesses require to
produce documents is also enclosed. Any other
witnesses would be possible to decide only after
some progress is made in this case. The case is of
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Session Trial and it has been clarified that after

revision of CrPC in 1973 the magistrate court has a
limited role to play so as to identify only the offence
and send it to the Sessions with or without the names
of accused, without being permitted to carry out any
inquiry u/s 202 CrPC.
25.Tbat on 11.01.10 complainant No. I went to the court
with her husband. They had not been given any
papers by any court or by police. They went to the
table of Advocate R.S. Saini but he was not there so
they sat at the table of one advocate Ajit, who sits
nearby to Advocate R.S. Saini. They were waiting to
arrange surety around 10.30 AM., but before
Advocate R.S. Saini could arrive, Constable No. 719
Virender Singh of P.S. Sector 5, Gurgaon came
there, a few minutes later, and asked them to sign on
a half sheet of paper (with no prioted or other matter
in Hindi) hand written in English, which complainant
No. I can not read. Complainant No. I asked him
what is written on this English paper. He said it says
that her husband had jumped bail and did not appear
in the court so he has to appear in the court with
surety on I 1.01.10, and the earlier surety is cancelled.
He still did not leave any paper with them. He told
them to come to the court and they went with him.
Later on complainant No. I learnt that earlier, in the
morning, he had gone to her house to execute the
warrant and been told by her relative/ neighbour that
they have already gone to the court.
26.That at about 10.30 A.M. Constable Virender Singh
had taken them away from table of advocate Ajit to
the table of the court staff, a tall person, whom
complainant No. I recognizes, and complainant No. I
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was told by the court staff who is a tall person Naib

Court Jagdish and Constable Virender Singh that the
judge has ordered that your husband has to go to jail
and that she should go home. Complainant No.I did
as she was told by Constable Virender Singh. They
had some money, about Rs 1000/-, with them at the
time and she gave him some more money. She heard
Constable Virender Singh tell the court staff (Naib
Court Jagdish) that he is going home and to take over
the custody matter of her husband. Constable
Virender Singh, who is from same village, said that
since he is going home he could drop her home, but
for some reason she refused, as she did not feel
comfortable going with him. Her husband had been
to jail once earlier from 19.03.08 to 28.07.08 and had
come back soon after getting bail so she was not
worried. She thought he will be out of jail soon after
bail is arranged. They were not asked anything by the
judge at any stage or asked to sign any papers in
presence of the judge. They were not given any time
to meet their advocate to arrange bail. Complainant
No. I then left the court and does not know what
happened afterwards till she saw her husband's dead
body with marks of beating next day at General
Hospital, Gurgaon.
27.At about 11 A.M. on 12.01.10 one constable from
P.S. Sector 5, Gurgaon came to house and informed
that husband of complainant No. I is admitted in
General Hospital, Gurgaon and went away. She went
to the hospital but was shocked to find his dead body,
and informed her relatives about I I.45A.M. When
they came they sent her home. Sh Mukesh Rao,
learned JMFC Gurgaon, called her back and she
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returned to the General Hospital at about 2.00 P.M.

Sh Mukesh Rao, leamed JMFC Gurgaon inspected
the body and found marks of beating on the back of
her husband's body. She was asked by him if these
were old marks and she said that he was hale and
hearty on I I.OLIO and his back was clear of any
such bruise marks on the morning of I 1.01.10 before
he was taken away into custody. She was not asked
any other question and she was once again sent back
home by her relatives.
28.That the complainant bad received a copy of inquiry
report of magistrate u/s 176 CrPC under RTI on
22.04.l I. At this stage of the matter motive bad been
attributed by inquiry magistrate against some
influential persons and custodial death of
complainant's husband appears to be a conspiracy in
which her husband was perhaps made a pawn in
some alleged electoral fraud matter being pursued by
his brother and other concerned citizens, in which her
husband had no direct hand. However the alleged
grave illegalities in arrest followed by alleged illegal
remand into 14 days judicial custody in alleged
violation of Section 344 I.P.C. and Apex Court
judgement in case titled Joginder Kumar v. State of
U.P. 1994 (4) SCC 260 appear to establish that some
of the orders of the ilaqa magistrate dated 19.03.08,
02.04.08, 30.04.08, 09.07.08, 05.08.08, 24.01.09,
01.05.09, 05.05.09, 14.05.09, 06.07.09, 05.08.09,
12.08.09, 02.09.09, 29.09.09 & 11.01.10 and some
remand requests of police and some remand orders of
ilaqa magistrate violate the Apex Court judgement in
Joginder Kumar V. State of U.P. 1994 (4) sec 260_
Hence his death in custody constitutes a blot on our
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2015.03.02 16:50
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39
judicial system in general and lack of police reforms

in particular, because the police dance to the tune of
criminal minded politicians and ignore justice to the
common people.
29.That the replies have been received under RTI
requests made to PIO, Sessions Court, Gurgaon on
08.04.11, 21.04.11 and in September 2012,
Commissioner Police, Gurgaon on 02.05.J I &
13.05.11, and to Jail Superintendent, Bhondsi on
04.06.11 and 04.10.12. Replies to RTI requests made
to Deputy Commissioner, Gurgaon after a direction
of PIO, Sessions Court was also received in 2012.
The information provided clearly establishes offences
under Sections 302, 367, 304, 325, 326, 344, 193,
197, 201 & 220 IPC read with Sections 34, 35, 36,
37, 38, 39, 109, 120-B, 177, 191 & 192 IPC and Rule
18.44 of Punjab Police Rules, 1934, Volume II (as
applicable in Haryana State, Reprint Edition 2008
amended upto 31.03.08) read with Section 96 (4) of
the Haryana Police Act, 2007 (Act 25 of 2008).
Private Complaint has been made with P.S. Bhondsi
on 23.04.11. Media reported the matter on 30.04.11
& 01.05.11.
30. It is mandated under Section 5I of The Haryana
Police Act, 2007 (Act 25 of 2008) that "Every police
officer shall be considered to be always on duty and
may at any time be deployed in any part of the State
or outside the State." Hence the delay in recording of
statement by Sh Mukesh Rao, learned JMFC
Gurgaon on 25.03.11 of Accused No. I is
unacceptable and the abrupt termination of inquiry,
which remained unfinished as a result, tends to defeat
the ends of justice, never mind that in the end blame
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-62-
has been alleged and conspiracy has been alleged by

Sh Mukesh Rao, learned JMFC Gurgaon/ inquiry
magistrate.
31.That frrstly as early as 28.05.I0 Sh Mukesh Rao,
learned JMFC Gurgaon was fully aware that
deceased was beaten and then taken to jail by a single
policeman in blatant violation of Rule 18.44 of
Punjab Police Rules, 1934, Volume II (as applicable
in Haryana State, Reprint Edition 2008 amended upto
31.03.08) read with Section 96 (4) of the Haryana
Police Act, 2007 (Act 25 of 2008), which requires a
minimum escort of two constables.
32. Secondly Sh Mukesh Rao, learned JMFC Gurgaon
was also aware that it was highly unusual that a
policeman (rather than escort guard or two policemen
of P.S. Sector 5 Gurgaon concerned in the case) of
P.S. City Gurgaon should have committed deceased
to jail on I l.01.10 - being so aware the obvious
action of calling for statement of S.H.O. P.S. City
Gurgaon being omitted raises more than sufficient
implication that Sh Mukesh Rao, learned JMFC
Gurgaon shielded unknown persons by not so calling
the concerned S.H.O. for statement on 28.05.10 till
today.
33. Thirdly Sh Mukesh Rao, learned JMFC Gurgaon
was also aware, or should have inquired and been
aware that deceased was taken to jail by a single
policeman who was not on duty roster for the day
between 10.30 A.M. and 5.35 P.M. on 11.01.10.
34. It is this fatal omission coupled with the fatal delay
from 28. 05 .10 in calling for statement of Angrej
Singh, Constable No. 3 I34/Gurgaon till fmally called
on 25 .03 .11 that establishes a sinister plot to save the
-63-
41
real culprits, alleged "senior political boss" and

others (as alleged by Sh Mukesh Rao, learned JMFC
Gurgaon himself).
35.That the said delay appears to be highly deliberate
and planned so as to provide an escape route to
Angrej Singh, Constable No. 3134/Gurgaon to be
able to pass on the blame to a superior, whose name
he was enabled to conveniently forget, by !aches of
inquiry magistrate in not calling S.H.O. P.S. City
Gurgaon at all and delaying recording of the
statement of Angrej Singh, Constable No.
3134/Gurgaon for full 14 months.
36.If Angrej Singh, Constable No. 3134/Gurgaon is
found to be off duty/ on leave, he, alongwith Naib
Court Jagdish, deserves to be charged under Section
302 I.P.C. and to go to the gallows in line with the
Apex Court rulings on custodial death, unless they
come out with cogent defence. If, on the other hand
he is found to be on duty under Section 5I of The
Haryana Police Act, 2007 (Act 25 of 2008), then
Angrej Singh, Constable No. 3134/Gurgaon
alongwith all on duty staff of P.S. City, P.S. Sector 5
& P.S. Bhonds~ Gurgaon, Bhondsi Jail, Escort Guard
of Sessions Court, Gurgaon, General Hospital
Gurgaon, Naib Court Jagdish, etc and other
influential persons as implicated by inquiry
magistrate shall become part of a conspiracy in this
case - in accord with Apex Court rulings on custodial
death they all would need to be charged under
Section 302 I.P. C. and face trial leading to the
gallows in line with the Apex Court rulings on
custodial death, unless they come out with cogent
defence. The excessive delay in viscera report
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42
collection till 25.08.10 and then non submission by

LO. of P.S. Bhondsi to inquiry magistrate from
25.08.10 to 02.04.11 is also highly suspicious.
37.Sanction for prosecution under CrPC 197 had been
sought on 12.06.11. There is neither refusal nor
permission even as 90 days have long since elapsed
and Jaw on 90 days is clear enough but law on
deemed ~tion after 90 days, though advised to
Parliament to be passed vide judgment dated
31.01.12 (Subramaniam Swamy v. Manmohan Singh
2012 (3) sec 64) is hazy at present. Now it is four
years since sanction was sought and there is a
deafening silence on this front as well. It has now
been conclusively held in Manohar Lal Sharma v.
Principal Secretary 2014 (2) SCC 532 that prior
sanction shall no longer be required in cases
monitored by constitutional courts.
38. Krishan Kumar was admittedly arrested on his two
feet at I0.30 A.M. on I 1.01.10 and less than 20 hours
later was brought dead as UTP to General Hospital,
Gurgaon with extensive bruises on his back Paras
20, 21 & 23 above contain the exact solution to
remedy this murder which is on the exactly similar
circumstances, with an added twist that it was
literally a judicial murder or execution, so to say.
39. Sanction was sought on 12.06.11 under CrPC 197
for prosecution of certain officers & staff by the
appropriate competent authority in accord with
Munshi Singh Gautam (D) & Ors. V. State ofM.P.
2005 (9) sec 631, K.H. Shekarappa v State of
Karnatakll 2010 (3) SCR 883 & Mehboob Batcha v.
State 2011(3) sec (Cri) 70, 2011 (7) sec 45 u/s
302, 304, 344, 193, 197, 201 & 220 IPC read with
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Sections 34, 35, 36, 37, 38, 39, 109, 120-B, 177, 191
& 192 !PC and Rule 18.44 of Punjab Police Rules,
1934, Volume Il (as applicable in Haryana State,
Reprint Edition 2008 amended upto 31.03 .08) read
with Section 96 (4) of the Hruyana Police Act, 2007
(Act 25 of 2008). In this sanction letter dated
12.06.11 it was mentioned as follows
PROPOSED PRAYER TO COMPETENT COURT
OF JURISDICTION
a. It is respectfully prayed that deficiencies, if any, in
formatting and drafting of this application may kind! y
be exempted in the interests of justice, and summons
be issued for production of the record from the
respective witnesses, hostile or otherwise, some of
whom may be offered immunity from Section 302
I.P. C. so as to break the ring of conspiracy so that the
actual influential persons, having motive and truly
responsible, unimpeached as of today, may be
summoned, tried, found guilty and punished
according to law in the interests of justice. In the
event that custodial death as alleged is established,
costs in the amount of Rs 500 lakhs be imposed on
the State of Hruyana, for its failure to properly
prosecute the matter for last 17 months, which it shall
be at liberty to recover jointly and severally from the
persons found guilty of committing or abetting any of
the offences alleged, such sum to be credited to
NGOs which reponed this matter to National Human
Rights Commission, unknown to complainants till as
recently as 01.05.l I, to be utilized to set up a
nationwide free to call helpline, free SMS and
unlimited webspace to enable upload of videos and
-66-
44
photographs of custodial torture from alert citizens

anywhere in India
b. Recommend to the State Government and the
Punjab & Haryana High Court for appointment of
Special Investigation Team by Hon'ble Chief Justice
of Punjab & Haryana High Court for independent
investigation of this grave violation of law which
allegedly continues unchecked. c. Pass any other or
further order which this Hon'ble Court may deem fit
and apposite in the facts and circumstances of the
case.
ALLEGED INVOLVEMENT OF OFFICERS OF
HIGH COURT ETC.
a. Inaction under Article SIA of the Constitution of
High Court officers on Emails dated 14.01.10 and
22.04.11 point to alleged involvement of officers of
High Court. (Copies enclosed). Sanction sought
below under CrPC I97 through the Hon 'ble Chief
Justice, Punjab & Haryana High Court, from the
authority competent to permit prosecution of judicial
officers and staff.
b. Inaction ofNHRC officials in the matter may point
to alleged involvement ofNHRC officials. However
no sanction is proposed to be sought against NHRC
from the competent authority at this stage.
c. Sanction sought below under CrPC 197 through
the Chief Minister, State of Haryana, from the
authority competent to permit prosecution of officers
and staff other than those covered as above.
40. However it has now been noticed that in this case
sanction may not even be an essential pre-requisite -
Apex Court in Choudhury Parveen Sultana v State of
West Bengal 2009 (3) SCC 398 held:
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"17 ... In order to apply the bar of Section 197

Cr.P .C. each case has to be considered in its
own fact situation in order to arrive at a finding
as to whether the protection of Section 197
Cr.P.C. could be given to the public servant.
The fact situation in the complaint in this case
is such that it does not bring the case within the
ambit of Section 197 and the High Court erred
in quashing the same as far as the respondent
No.2 is concerned. The complaint prima facie
makes out offences alleged to have been
committed by the respondent No.2 which were
not part of his official duties.18. We,
accordingly, allow the appeal and set aside the
judgment and order of the High Court. The
trial Court shall proceed with the trial of all the
accused, including the respondent No.2
herein."
41. The cause of action arose on 12.01.10 when
complainant saw dead body of her husband with
large bruise marks on the back a day after he was sent
to jail, in good health, by the court at Gurgaon. That
there can be no question at all oflack of any locus of
any of the three complainants in this criminal
complaint which is made to punish criminal offence
against public justice because it bas been
categorically held by the Apex Court in
Subramaniam Swamy v. Manmohan Singh 2012 (3)
sec 64, wherein at pp 1208-1209 para 51-52 the
Apex Court held:
"51. The right of private citizen to file a
complaint against a corrupt public servant must
be equated with his right to access the Court in
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46
order to set the criminal law in motion against

a colIUJ)t public official. This right of access, a
Constitutional right should not be burdened
with unreasonable fetters. When a private
citizen approaches a court of law against a
COlIUJ)t public servant who is highly placed,
what is at stake is not only a vindication of
personal grievance of that citizen but also the
question of bringing orderliness in society and
maintaining equal balance in the rule oflaw. It
was pointed out by the Constitution Bench of
this Court in Sheonandan Paswan vs. State of
Bihar and Others, (1987) 1 SCC 288 at page
315:
"...... It is now settled law that a
criminal proceeding is not a proceeding
for vindication of a private grievance but
it is a proceeding initiated for the
pwpose of punishment to the offender in
the interest of the society. It is for
maintaining stability and orderliness in
the society that certain acts are
constituted offences and the right is
given to any citizen to set the machinery
of the criminal law in motion for the
purpose of bringing the offender to
book. It is for this reason that in A.R.
Antulay v. R.S. Nayak this Court
pointed out that (SCC p. 509, para 6)
"punishment of the offender in the
interest of the society being one of the
objects behind penal statutes enacted for
larger good of the society, right to
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47
, initiate proceedings cannot be whittled

down, circumscribed or fettered by
putting it into a strait jacket formula of
locus standi...... " "
"52. Keeping those principles in mind,
.....provisions being exceptions to the equality
provision of Article 14 are analogous to
provisions of protective discrimination and
these protections must be construed very
narrowly. These procedural provisions relating
to sanction must be construed in such a manner •
as to advance the causes of honesty and justice
and good governance as opposed to escalation
of corruption. .........authority must bear in ·
mind that what is at stake is the public
confidence in the maintenance of rule of Jaw
which is fundamental in the administration of
justice..... adversely viewed in public mind that
...... protection is given to a corrupt public
official as a quid pro quo .... authority and the
corrupt officials were or are partners in the
same misdeeds. I may hasten to add that this
may not be factual position in this but the
general demoralizing effect of such a popular
perception is profound and pernicious. ...thus
the legitimacy of the judicial institutions is
eroded. It, thus, deprives a citizen of his
legitimate and fundamental right to get justice
by setting the criminal law in motion and
thereby frustrates his right to access judicial
remedy which is a constitutionally protected
right."
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48
42.This Hon'ble Court has jurisdiction to admit the case u/s

302, 367 IPC etc for consideration whether offence as
alleged is made out prima facie, and if so made out upon the
facts as alleged and taken at their face value, refer the case
for sessions trial u/s 209 CrPC, without further ado. No
sanction is required to proceed with this complaint in view
of Choudhury Parveen Sultana v State of West Bengal 2009
(3) sec 398.
43. That earlier on 18.04.13 application u/s 399 CrPC was
made to Ld. District & Sessions Judge only by Complainant
No. 1 & 2 in CC No. 63 of 2013 in the courts below (who
earlier bad made a Complaint dated 17.05.11) requesting re-
consideration of Order passed by Sh. R.S. Virk, Ld. District
& Sessions Judge on 20.05. ll in Cr Misc No. 200 of 201 l
filed by Complainant No. I & 2. During pendency of the
application dated 18.04.13 (NDOH 23.04.13) CC No. 63 of
2013 Wlll filed by Complainant Nos I, 2 & 3 in CC No. 63
of 2013. That the justifiable circwnstance for the
complainants to present the case directly before the Ld.
District & Sessions Judge and not the concerned Ilaqa
Magistrate on 17.05.10 was explained as follows: Firstly the
concerned Ilaqa Magistrate could have had no knowledge of
the Report UIS 176 (IA) (a) CrPC made on 02.04.11 by
JMFC Sh. Mukesh Rao to Ld. District & Sessions Judge.
This report was later on approved by Ld. District &
Sessions Judge and by the High Court of Punjab & Haryana
vide a Jetter No. 27936 L.81. Gen (3) dated 06.08.11
addressed to Ld. District & Sessions Judge, Gurgaon, which
constitutes per incuriam in the peculiar facts and
circumstances of this case. This conspectus of facts and
reports which was duly sent approved by the High Court to
the Deputy Connnissioner, Gurgaon by Ld. District &
Sessions Judge, Gurgaon (vide Office of the District &
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2015,03.02 16:50
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49
Sessions Judge, Gurgaon letter No. 20936/J.9 dated

02.09.11), constituted a judicial order in tenns of Sections
176/202 CrPC and Article 141 Law to lodge supplementary
FIR (in P.S. Bhondsi DDLE No. 10 dated 12.01.10 for
custodial death) by Deputy Commissioner, Gurgaon who
miserably failed to do so till date. The report dated 02.04.11
attached as many as 15 photographs showing beating marks
which had been noticed by Judicial Magistrate First Class
on 12.01.10 and other independent witnesses • the Judicial
Magistrate First Class opined that deceased was reported
hale and hearty on 11.01.10 per the recorded statements of
police and relatives taken on 12.01.10 after his death in
custody - the Judicial Magistrate First Class opined that
cancellation of bail was irregular and suspicious, delay in
escorting to jail was delayed and suspicious, delay in post
mortem till 13.01.10 was suspicious and pressure of
political persons and officials was apparent from the
circumstances of irregular release of dead body by police/
doctors and year long delay in producing the key witness,
Constable Angrej Singh/3143 Gurgaon. Hence grave
miscarriage of justice was alleged to have occurred by
purported failure of the Ld. District & Sessions Judge,
Gurgaon and/ or the learned Ilaqa Magistrate to fully and
correctly appreciate the criminal law as it operated in the
facts and circumstances of this case, per incuriam, in the
Order of the Ld. District & Sessions Judge, Gurgaon dated
20.05.11 and Oral Order of Dr Ashok Kumar JMFC
Gurgaon dated 10.06.11 dismissing the Complaint Parvesh
Kataria v. Unknown without registering and without taking
on the record given in presence of legal aid counsel, Sh.
Ved Pal Yadav. That Judicial Magistrate First Class had
perhaps foreseen that Deputy Commissioner, Gurgaon
would not pursue this custodial death, in which the learned
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237- 50
Judicial Magistrate First Class had personally recorded

marks of beating upon the body of deceased prisoner, hence
had sought investigation by independent agency, not
Haryana Police, and this same Report dated 02.04.11 stands
approved by the Ld. District & Sessions Judge as also
Hon'ble High Court. That the case law on cognizance inter
se magistrate court and court of sessions is now well settled
in Dharam Pal v. State ofHaryana 2014 (3) SCC 306 hence
the current legal position appears to be that of Kishun Singh
vs. State of Bihar 1993 (2) SCC 16. Therefore the ODLE
No. 10 dated 12.01.10/ P.S. Bhondsi and a private
complaint dated 23.04.11 having become defunct by non
investigation/ deemed closure, (it is now well settled law
that if no movement in investigation for 12 months the
investigation in that case is to be treated as defunct for
purposes including release of information ordinarily barred
under RTI Act in ongoing investigations) complainant was
left with no option except to resort to a complaint in the
court of Ld. District & Sessions Judge. That the Judicial
Magistrate First Class Report dated 02.04.11 was approved
by the Hon 'ble High Court in line with the reasoning of
Randhir Singh Rana vs. State (Delhi Admn.), 1997 (I) SCC
361(3 judges). That being the case, upon filing of the
complaint against unknown persons (Sessions Trial under
CrPC 208) on I 7.05.11, it would appear that the only
remaining duty, if any, of trial magistrate would have been
to examine the documents attached with the complaint, see
if prime facie offence was made out, see if any persons can
be identified, and either dismiss the case or remand it
against known and/ or unknown persons to the Court of
Sessions by following the procedure of Sections
200/203/207/209/323 CrPC and, if applicable, Section 210
CrPC. Unfortunately this procedure had been given the go
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2015.03.02 16:50
PHHC,Chand/garh
-73-
51
bye in this case by Dr Ashok Kwnar JMIC Gurgaon by

unceremoniously dismissing Complaint Parvesh Kataria v.
Unknown dated 10.06.11 without registering and without
talcing on the record, primarily because he bad objection to
admitting a case wherein accused were unknown.
44. Cases may need to be filed in such types of deep rooted
criminal conspiracies where it is difficult to clearly identify
the real accused acting behind the scenes but the offence is
glaring and prima facie though against unknown persons
who are the real hands at work behind the dastardly acts and
CrPC provides for such cases to be filed and to be remitted
to Sessions Court as against the unknown persons. That it is
perfectly legal and correct to implicate unknown persons
because CrPC Section 2 (d) which defines "complaint''
mentions "some person, whether known or unknown."
(Pravin Chandra Mody vs State Of Andhra Pradesh AIR
1965 SC l 185 and Raghubans Dubey vs State OfBihar AIR
1967 SC 1167 [1967) 2 S.C.R. 423). In Kishun Singh vs.
State ofBihar 1993 (2) SCC 16 it was held:
"It may immediately be noticed that under the old
provision a Court of Session could not take
cognii.ance of an offence as a Court of original
jurisdiction unless the accused was committed to it
whereas under the recast section as it presently stands
the expression the accused has been replaced by the
words the case. As has been pointed out earlier, under
section 190 cognizance has to be taken for the
offence and not the offender: so also under section
193 the emphasis now is to the committal of the case
and no more on the offender. So also section 209
speaks of committing the case to the Court of
Session. On a conjoint reading of these provisions it
becomes clear that while under the Old Code in view
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2015.03.02 16:50
PHHC,Chandigarh
.74.
52
of the language of section 193 unless an accused was

committed to the Court of Session the said court not
take cognizance of an offence as a court of original
jurisdiction; now under section 193 as it presently
stands once the case is committed the restriction
disappears ......... On the magistrate committing the
case under section 209 to the Court of Session the bar
of section 193 is lifted thereby investing the Court of
Session complete and unfettered jurisdiction of the
Court of original jurisdiction to take cognizance of
the offence which would include the Summoning of
the person or persons whose complicity in the
commission of the crime can prima facie be gathered
from the material available on record."
45. This is a fit case for setting aside the orders of the courts
below and grant of permission to prosecute the matter by a
special prosecutor in a court monitored investigation
without any influence of the Haryana officials likely to be
implicated in the matter of this dastardly custodial death
which took place on I 1.01.2010/ 12.01.2010,.
PRAYER
It is, therefore, respectfully prayed that this Hon'ble Court
may be pleased to:-
a) summon the complete records of this case from the
courts below; and/or
b) quash the order dated 27.01.15 of the courts below,
and/ or
c) pass directions to a competent agency to register FIR
and investigate the matter which has only been
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-75-
53
inquired by JMFC in 2010 and inquired but not
investigated by SIT in 2014; and/or
d) decide the substantial questions of law of general
public importance as to the interpretation of Articles
21, 136,226 to 228 of the Constitution of India; and
e) issue any other order or direction, which this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case .
g~~
CHANDIGARH [Lt Col SS Oberoi (Retd)]
DATED:• 28.01.2015 Appellant/Complainant no.3
'.
............
VERIFICATION:• • ..
Verified that the contents as stated. \n ~ara Nos: ·,l .to

'
45 are true and correct to my knowledge. No' part of it is
incorrect and nothing has been kept concealed therefrom.
CHANDIGARH
~
[Lt Col SS Oberoi (Retd)J
DATED:- 28.01.2015 Appellant/Complainant no.3
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-76-
54
IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH
CRM-M NO. _ _ _ OF 2015
IN
IN
COMPLAINT CASE NO. 63 OF 2013
(District: Gurgaon)
IN THE MATTER OF:

Lt Col SS Oberoi (Retd), aged 65 years s/o late Capt HS Oberoi,
Flat No. I 102, Tower I, Uniworld Garden, Sector 47, Gurgaon,
Haryana. ...... Petitioner/Appellant No. 3/Complainant No. 3
Versus
Unknown ... Defendants/ Accused

with State of Haryana
AFFIDAVIT
Affidavit of Sarvadaman Singh Oberoi aged 65 years s/o late Capt
HS Oberoi r/o 1102, Tower-I, Uniworld Garden, Sector-47,
Gurgaon, I, the above named deponent do hereby solemnly affirm
~ and declare as under:-

,~ . . ,:.,
·""'{·
/ -""""" \r . That the deponent is filing the accompanying Criminal
'I _~:- ., ·_ i
,;~~;:,..-.·_g11'/- Petition u/s 482 CrPC and Article 227 of the Constitution of
\
. -~,
'•,M•l.j,
• "I-:- ., ;'O,tr India and is well versed with the facts and circumstances of
the case.
2. That the contents of the accompanying Criminal Petition u/s
482 CrPC and Article 227 of the Constitution of India have
been drafted by the deponent and understood the saine. .

-77-
55
3. That the contents of the accompanying Criminal Petition u/s
482 CrPC and Article 227 of the Constitution of India may
kindly be read as part and parcel of this affidavit to avoid

repetition for the sake of brevity.
<;J~DEPONENT
VERIFICATION:
Verified at Chandigarh on this twenty eighth day of January
2015 that the contents of the above said affidavit are true and
correct to the best of my knowledge and belief and nothing has
been concealed therein.
<f3 -5:/.. ~
DEPONENT
ATTESiED AS ,Df.ff,!1-I'~;;
~ ~
NOT.4RY Pi ,
CHAt.lDJGA,..,i
05FEB 2015
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PHHC,Chandigarh
267 CRM-M-5280 of2015 (O&M)
S.S. Oberoi Vs. Unknown with State ofHaryana
Present: Petitioner in person.
Mr. Deepak Sabharwal, Add!. AG, Haryana.
******
To be heard along with CRM-M-34001 of2012.
(DAYA CHAUDHARY)
JUDGE
27.02.2015
rittu
1 ofl
::: Downloaded on. 14-05-2016 18:34:08 ::

108+224 CRM-M-34001 of2012 (O&M)
Parvesh Kataria and others Vs. State ofHaryana and others
Present: Mr. Ravi Kamal Gupta, Advocate

for the petitioner.
Mr. Deepak Sabharwal, Addi. AG, Haryana.
******
To be shown in urgent list.
(DAYA CHAUDHARY)
JUDGE
27.02.2015
rittu
l ofl
::: Downloaded on - 25-05-2016 06:36:28 :

IN THE illGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
117 CRM-M-44361-2017
Sarvadaman Singh Oberoi Vs. Union ofindia and others
****
PRESENT: Petitioner in person.
****
The petitioner who is present in person, prays that
CWP-24079-2015, involving similar questions of law, is pending
adjudication before a Division Bench of this Court on 29.01.2018, this
petition may be referred to the same Division Bench.
To avoid any multiplicity of proceedings and conflicting views,
be put up before the same Division Bench, after obtaining appropriate
orders, from Hon'ble the Chief Justice.
December 06, 2017 ( RAMENDRA JAIN)

rishu JUDGE
1 of l
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(242) CRM-M-34001 of2012 (O&M)
CRM-M-5280 of201S(O&M)
Parvesb Kataria Vs. State ofHaryana and others
Present: Mr. S.S. Oberoi - petitioner in person.
Mr. Deepak Sabharwal, Addi. AG, Haryana.
Mr. Harmandeep S. Bhullar, Advocate for

Mr. D.P.S. Randhawa, Advocate for NHRC.
****
The petitioner submits that the petition bearing CRM-M-43361
of 2017 involving the point of law, upon which the decision of the present
case would be depending, is already pending before the Division Bench of
this Court for 28.01.2019. It is submitted by the counsel that either this
petition be sent to the Division Bench; so that both the cases can be heard
together or this case may be taken up after the above said case is decided by
the Division Bench of this Court.
Learned counsel for the State has no objection if the present
case is taken up after the above said CRM-M-43361 of 2017 is decided by
the Division Bench.
Adjourned sine die.
To be taken up after the above said CRM-M-43361 of2017 is
decided by the Division Bench of this Court.
A photocopy of this order be placed on the file of connected
case.
10.12.2018 ( RAJBIR SERRAWAT)

renu JUDGE
1 of l
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Neutral Citation No:=
102+203 CWP-24079-2015 (O&M) with

CRMs-13835-13836-2023 in/and
CRM-M-44361-2017 (O&M)
RANI DEVI
vs
NATIONAL HUMAN RIGHTS COMMISSION AND ORS
Present: Mr. S.S. Narula, Advocate for the petitioner

(In CWP-24079-2015)
Mr. Sukhwinder Singh Chatrath, Advocate for

Mr. D.P.S. Randhawa, Advocate for respondent No.1-NHRC.
(In CWP-24079-2015)
Mr. R.S. Bains, Sr. Advocate with

Mr. Amarjeet, Advocate for respondent No.2.
(ln CWP-24079-2015)
Mr. Deepak Balyan, Add!. A.G. Haryana.
Mr. S.S. Oberoi, Petitioner in person, (In CRM-M-44361-2017)

****
The said matters and the questions of law raised therein have to be
considered and decided in lhc backdrop of the facts involved in each and every
individual case. Therefore, CRM-M-44361-2017 is sent back to the appropriate
Bench hearing the said matter as per the Rules and Roster.
Learned counsel for the petitioner submits that during the
pendency of this writ petition, the Criminal Court has decided the matter and
convicted respondent No.2. He prays for and is granted time to place the
decision/judgment of the Criminal Court on record.
As prayed, adjourned to 04.09.2023.
A photocopy of this order be placed on the file(s) of connected
case(s).
(RAVI SHANKER JHA)

CHIEF JUSTICE
(VIKAS BAHL)
JUDGE
28.03.2023
Pawan
1 1)/ !
::: Downloaded on. 19-12-2023 14:42:06 ::
245
CWP-24079-2015 ( O&M)
Rani Devi
Vs.
National Human Rights Commission and others
Present: Mr. S.S. Narula, Advocate,

for the petitioner.
None for respondent No.I.
Mr. R.S. Bains, Senior Advocate, with

Mr. Aman Raj Bawa, Advocate,
for respondent No.2.
Mr. Deepak Balyan, Addi. Advocate General, Haryana.
Mr. S.S. Oberoi - applicant in person.
****
None is present on behalf ofrespondent No.I.
Adjourned to 29.02.2024 to enable learned counsel for
respondent No. I to assist this Court with respect to the evidence,
including the video clips, available against the police officials.
( RITU BAHRI )
ACTING CHIEF JUSTICE
( NIDHI GUPTA )
JUDGE
December 15, 2023
ndj
1 ol l
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109+222 (3 cases)
CRM-21436-2023, CRM-28630-2023 IN/AND

CRM-M-34001-2012 (O&M)
PARVESH KATARIAAND ORS.

vs.
STATE OF HARYANAAND ORS.
CRM-21554-2023 IN/AND
CRM-M-5280-2015 (O&M)
S.S. OBEROI VS. UNKNOWN WITH STATE OF HARYANA
CRM-M-44361-2017 (O&M)
SARVADAMAN SINGH OBEROI

vs.
UNION OF INDIA AND ORS.
Present : Mr. Ravi Kamal Gupta, Advocate for the petitioners.
Mr. S.S. Oberoi, petitioner in person.
Mr. Ashok S. Chaudhry, Add!. A.G., Haryana.
****
Jointly stated that similar controversy is pending consideration
before Division Bench in CWP-24079-2015 titled as 'Rani Devi Vs. National
Human Rights Commission & others' for 29.02.2024.
Adjourned sine die.
Be listed after the decision of the aforesaid case.
Photocopy of this order be placed on the files of connected cases.
(MAHABIR SINGH SINDHU)

JUDGE
15.12.2023
Harish Kumar
l of l
::: Downloaded on• 19-12-2023 14:33:51:
IN THE COURT OF SH. PHALIT SHARMA ADDITIONAL SESSIONS JUDGE, GURGAON
IN
CRIMINAL COMPLAINT NO. 63/2013
IN THE MATTER OF: NDOH: 26.03.2015
Parvesh Kataria and Ors ..... Appellants 1,-7,0(,'h(.!
Unknown
versus
...... Defendants
~
UPDATED CASE CHART FOR SUBSTANTIAL QUESTIONS OF LAW
('--._ Sr Case Rule Tonic
~ I Sant Singh etc V. Guiab "Having regard to the provisions of Order 22 Rule 11, Civil Procedure Code and Section 107, Civil Matter abates
~ Singh etc (I 929) !LR IO Lah. Procedure Code, l fail to understand why a similar decree may not be possible in an appeal which has on death -
7 (FB) partially abated as regards some of the respondents only and has succeeded against the remaining dismissal is
respondents." 8th line at pp. 50 See also pp. 17 decree
2 Bak:hshish Singh etc V. "The test in such cases is whether the plaintiff will be debarred from seeking his relief against those persons Plaintiff
Makhan Singh etc (1935) in a separate suit whom he does not join in the previous suit." 13 th line at pp. 751 See also pp. 750 retains right to
!LR 16 Lah. 747 file suit
against
persons not
ioined
3 State of Punjab v. Nathu Ram "It is immaterial that the modification which the court will do is one to which exception can or cannot be Appeal can
AIR 1962 SC 89 taken." - Para 8 last line proceed if LRs
are imoleaded
4 State of Gujarat v. Shyamlal
Mohanlal Choksi and anr
AIR 1965 SC 1251 (5judges)
para 8
4 Ashwin Nanubhai Vyas v. The Code also does not provide for the abatement of inquiries and trials although it provides for the Trials - Death
State of Maharashtra AIR abatement of appeals on the death of the accused, in respect of appeals under ss. 411 A(2) and 417 and on of accused -
1967 SC 983, para 3 the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on procedure to
the death of a complainant in a case started on a complaint has to be inferred generally from the provisions be inferred
of the Code. generally from
the provisions
of the Code.
5 AC Aggarwal SDM Delhi v. "Under s.190( 1)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any Rule of Law -
(:)..,
Mst Ram Kali AIR 1968 SC cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take Section 190 -
.:s-
~
I at pp. 5 para (12) cognizance". He has no discretion in the matter, otherwise that section will be violative of Art. 14." Because
the context of word "may" remains the same without any change for s.190(1)(c) of the Code of Criminal
"must take
cognizance 11 ~
Procedure, it would be violation of Article 14 if magistrate does not take cognizance of any cognizable ~
offence information about which he receives upon his own knowledge by way of any inquiry conducted hy
him, which is not a judicial proceeding proper. The same logic shall thereupon also apply to s.190(1)(a) of
the Code of Criminal Procedure.
6 Pradyut Natwarlal Shah v. Binding force of Supreme Court's Judgments Article 300A
Suryakant N. Sangani AIR
1979Bom 166
7 The State vs Suraj 1979 "4 ...... Only if such a point of law arises in the court of learned Magistrate or in a court of Sessions, which CrPC 395
WLN 580 has not been decided by this Court or by the Supreme Court, the question of making a reference under
Section 395(2), Cr.P.C. will arise. But, as the reference has been made and as the commitment of the case
without complying with the provisions of Section 306(4)(A), Cr.P.C. is not in accordance with law, it is
illegal and if any trial is held on such commitment, the same will be vitiated, the reference is worth
accenting."
8 Collector (D.M.) v. Raia Ram Order I Rule 8-A, Plea oflegal malafides - Ann!ication for intervention allowed bv Sunreme Court CPC,O1R8A,
Jaiswal I 985 (3) sec 1 SC Rules 020
R3
9 Jogendra Lal Saha v. State of Special legislation - Expressio unlus est exclusion alterius (when one or more things of a class are expressly Special law &
Bihar & Ors 1991 Supp (2) mentioned others of the same class are excluded) general law
sec 654
10 R.S. Raghunath v. State of "Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly Special law &
Karnataka & Anr 1992 (1) supersedes the said Special Law - is an unexceptionable proposition of law." Para 1 pp. 338 of SCC general law
SCC 335 (3 judges) Genera/ia specia/ibus non derogant - Special law being already in force application of subsequent general
law is excluded to the extent field is occupied by the special law - Repeal - Cannot be implied in absence of
conflict between ,;,eneral and special law - Paras 7, 8 & 11 to 16
11 S.P. Chengalvaraya Naidu v. "Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life Civil &
~ Jagannath AIR 1994 SC 853 find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say criminal
~ that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily litigation
C'-..\ thrown out at anv stage of the litigation." - Para 7, nn. 855
12 Smt. Rarnawati Sharma v. "The provisions have been challenged as having violated the constitutional guarantees under Articles, 14, CrPC 395/
Union of India 2000 (]) 19, 20 and 21 of the Constitution." - Para 8, pp. 63 Section 113
MWN (Cr.) DCC 61 !All.) CPC
13 Saraswati Industrial lntervener - Rights of- Held, he is entitled to address arguments in support of either side but is not himself CPC 01 RS-A,
Syndicate Ltd v. CIT, entitled to relief in the intervener application - Constitution oflndia, Art. 136 - Para 12 Article 136
Haryana, Rohtak 1999 (3)
sec 141 (3 iud!!es)
14 Kondiba Dagadu Kadam v. CPC 1908 - Second appeal - Scope of S.100 after 1976 amendment - Held: .. (3) the respondent has the Scope of
Savitribai Sopan Gujar & Ors right to argue that no substantial question of law is involved: .... (5) the court must distinguish between a Section 100
1999 (3) sec 122 question oflaw and a substantial question of law - Paras 3 & 4 CPC after
Held, High Court cannot substitute its own opinion for that of the first appellate court unless it finds that the 1976
conclusions drawn by the lower court were erroneous being ( 1) contrary to the mandatory provisions of amendment
applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible
evidence or no evidence - Paras 5 & 7
15 State of T.N. v. Board of Intervention when nermissible and to what extent - lnterveners not allowed to arnue in resnect of other Article 136
Trustees of the Port of State Acts in a matter concerning sales tax under the Tamil Nadu State enactment
Madras 1999 (41 SCC 630
16 Gobind Sugar Mills Ltd v. Preamble - Nature and applicability of the Act - Interpretation of Statutes - Subsidiary rules of Special law &
State of Bihar & Ors 1999 (7) interpretation- Generalia specialibus non derogant - Applied - Test to determine general and special Act, general law
sec 76 explained - Constitution of India - Focus must be on the principal subject-matter coupled with a particular
perspective with reference to the intendment of the Act - Whether it is possible to construe harmoniously
the provisions Para IO, lntemretation of Statutes Legislative historv Taken into account - Paras 5 to 12
17 Shirish Suresh Welling v. "In Allahabad High Court decision case does not stem from the proceedings under section 395 of the Cr. P. CrPC 395/
Smt. Sangeeta Avinash C. but it was a matter where the High Court was approached under Article 226 of the Constitution to declare Section 113
Marathe & Others 2001 (2) that section 138 is unconstitutional." - Para 4, pp. 95 CPC
Mh.LJ94
~
18 Sudhir and others v. State of "It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of Same incident
M.P. 2001 !2l sec 688 bv the same court bv oronouncing iudgments on the same dav." - Para 8, nn. 692
19 Santosh Hazari V. No second appeal under Section 100 CPC- unless substantial question of law - Para 11 Scope of
~
Purushottam Tiwari If the question is settled by the highest court - not a substantial question - Paras 12 & 14 Section 100
(deceased) by LRs 2001 (3) Two principles to be kept in mind by first appellate court in writing a judgment of reversal - Para 15 CPC
SCC 179 (3 iud2es)
20 Municipal Council, Hansi, High Court committed a manifest error in rejecting the application filed by the appellant seeking CPC 01 R 8-A
District Hissar v. Mani Raj & intervention - When the direction adversely and seriously affected the valuable rights of the intervener in
Ors2001 (4SCC 173 immovable property - Remitted to the High Court for disposal on merits after hearing intervener - (Paras 5
& 6)
21 G Jaya Rao v. State of A.P. "None of the contentions raised in the written arguments are considered ...... .I find that this is a classic case Written
2004 (2) RCR (Civil) 249 where the Judge refused to consider the written arguments. He has not considered the decisions cited before arguments &
/A.P.) him. In such cases, the judgment should not be unheld." Para 6. nn. 251 citations.
22 Ramesh Mehta v. Sanwal "A right to contest election although arises under a statute but having regard to the Constitution 74th Democracy at
Chand Singhvi 2004 (5) sec Amendment Act, the interpretation thereof must be made keeping in view the constitutional scheme. the grass-root
409 pp. 425 at para 22 Democracy at the grass-root level was sought to be introduced by reason of the said amendment in the
Constitution. Once the concept of a grass-root democracy is accepted, a pragmatic and purposive meaning
to the nrovisions of the Act must be assigned."
23 Ravi Rao Gaikwad & Ors v. Application for impleadment as an intervener - not maintainable when writ petition of intervener already Article 226
Rajajinagar Youth Social dismissed - Direction of Division Bench to Single Judge set aside to that extent -(Para 7)
Welfare Assn & Ors 2006 (5)
SCC62
24 Hero Vinoth (Minor) v. CPC 1908 - S. 100 - Second appeal - Substantial question of law - "Substantial" - Meaning of - Held, a Scope of
Seshammal 2006 (5) sec question of law which affects rights of the parties to the suit will be substantial, if it is not covered by any Section 100
545 specific provisions of law, or settled legal principles emerging from binding precedents of the High Court CPC after
concerned, Privy Council, Federal Court or Supreme Court, and involves a debatable legal issue - (Paras 17, 1976
18, 20, 21 & 23) amendment
A substantial question of law will also arise where the legal position is clear but the court below has decided
the matter iQnorinQ or actinQ contrarv to such orinciole - (Paras 13, 19 & 24/ii))
25 BG Thimmaiah etc v. KA " .... 13...ln other words, the suit has been virtually dismissed determining the rights of the parties Decree
Narayana Shetty ILR 2007 conclusively with regard to or any other matters in controversy in suit. 14. Undoubtedly, it has an effect of
"-
KAR 1415 determining the rights of the parties finally and such an order thus falls within the definition of decree as
~ defined under Section 2(2) ofCPC." Paras 13 & 14 nn. 1422
~ 26 Rashida Kamaluddin Syed 20. Though this Court allowed the appeal holding that the courts below were not justified in granting such Any person
and another V. Shaikh permission since it was made by the Power of Attorney, it was held that a person other than a complainant may continue
Saheblal Mardan (Dead) could continue prosecution. The Court, therefore, while setting aside the orders granted liberty to the heirs prosecution
through LRs and another of the complainant to file fresh application under Section 302 of the Code. with
2007 (3) sec 548 para 20 at permission of
nn,555 the court
27 Kulwinder Kaur v. Kandi CPC Section 24 & 25 - Transfer of a suit, appeal or other proceedings - Factors to be taken into account for CPC Section
Friends Education Trust & - Reiterated that .... (v) important questions of law involved or a considerable section of public interested in 24, Transfer of
Ors 2008 (3) sec 659 the litigation; (vi) "interest of justice" demanding for transfer of case, etc. are certain instances which are any
germane in considering the question of transfer - However, these instances are merely illustrative and not proceedings
exhaustive - If on the above or other relevant considerations, the court feels that the plaintiff or the
defendant is not likely to have a "fair trial" in the court from which he seeks to transfer a case, it is not only
the vower, but the dutv of the court to transfer the case - Para 23
28 Suresh Nanda v. Central Maxim Generalia svecialibus non deromnt ann!icable Where there is a snecial Act deaJinQ with snecific Special law &
Bureau of Investigation 2008subject, resort should be had to that Act instead of general Act providing for the matter connected with the general law
(31 sec 674 specific Act
29 Mahesh Yadav etc V. "15. The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex Non suited LR
Rajeshwar Singh etc 2009 (2)parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, may file
sec 205 the Court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable appeal upon
at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. decree of
When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit dismissal
contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of
the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte
iudPment and decree. In a given case. he mav also file a review annlication." Para 15 nn. 209
30 South Delhi Estate Agents " ... .In view of this the suit of the plaintiff stands abated against defendant no. 1. ..... .In view of this the Decree
Assoc. etc v Sher Singh etc present suit is dismissed for non-appearance as well as non-prosecution. File be consigned to record room provides scope
~ Decree of dismissal dated after completing necessary formalities." for plaintiff to
'--1 31.03.09 file plaint
against non~
~ suited LRs.
31 !TR No. 29 of 1981 titled Genera/ia specialibus non derogant and Generalibus specialia derogant Special law &
Income Tax, Patiala v. Well settled principles of interpretation (Para 10) general law
Roadmaster Industries of Compilation of principles (Para 11)
India (P) Ltd decided by the
Hon'ble Punjab & Haryana
High Court (FB) on
03.07.2009
32 Maya Devi ( dead) through 22. The juristic basis underlying the requirement that Courts and indeed all such authorities, as exercise the Reasons in
LRs v. Raj Kumari Batra power to determine the rights and obligations of individuals must give reasons in support of their orders has support of
(Dead) through LRs and been examined in a long line of decisions rendered by this Court. In Hindustan Times Limited v. Union of orders on each
others 20 IO (9) SCC 486 at India & Ors. 1998 (2) SCC 242 the need to give reasons has been held to arise out of the need to minimize major issue
nn.494-495 at oaras 22-30 chances of arbitrariness and induce claritv. raised
33 Fuliit Kaur v. State of Puniab Makin2: the allotment in such a hastv manner itself is arbitrarv and unreasonable and is hit bv Article 14 of Haste is
& Ors AIR 2010 SC 1937 the Constitution. "This court has consistently held that "when a thing is done in a post-haste manner, mala arbitrary.
fide would be oresumed." Para 26. no./ 1945 Article 14.
34 VAT Revision No. 8 of2010 Generalia specialibus non derogant is an accepted principle with certain exceptions. Special law &
(O&M) titled State of Punjab general law
v. Malwa Cotton & Spinning
Mills Ltd decided by the
Hon'ble Punjab & Haryana
High Court (DB) on
24.08.2010
35 Raj Kumar & Ors v. Intention of lawmakers (Paras 7, 11 to 15, 17 to 19, & 21) Special law &
\"\ Ravindra Pharmaceuticals Legislative history (Paras 7 & 19 to 22) general law
\_,, Pvt Ltd & Ors !LR 20 I 2 (2)
P&H I (DB)
N By (a) application of maxim Generalia specialibus non derogant i.e. general law yields to special law Special law &
36 CTO, Rajasthan V. Binani
Cements Ltd & Anr 2014 (8)should they operate in the same field on the same subject, (b) harmonious construction, and (Paras 32 to 47) general law
sec 319 (c) the rule that statutory interpretation should not be ab absurdo (that is interpretation avoiding absurd
results) (Para 50)
37 Civil Appeal No. 4226 of Generalia specialibus non derogant - Special law will always prevail over the general law - (Para 22) Special &
2012 titled Anvar P.V. v. (Decided by a 3 judge Bench of the Hon'ble Supreme Court on 18.09.2014) general law
P.K. Basheer & Ors
Place: Gurgaon
Date: 22.01.2015
s;J~
Lt Col (Retd) S S Oberoi,
Applicant/Complainant No. 3
•
[!l
2024 INSC 143
f~
f
., <G
~ - VJ
~
I
/y 1
(
/l'
IN THE SUPREME COURT OF INDIA

1 11 1 ')..'b 1 1J'-Jo
-J. G., J61- -'!./ 26fr~, i-61 1 :t7~~'2i'JR.EPORTABLE
1
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 684 OF 2012
SHAILESH KUMAR ... APPELLANT(S)
VERSUS
STATE OF U.P. (NOW STATE

OF UTTARAKHAND) ... RESPONDENT(S)
JUDGMENT
M. M. Sundresh, J.
1. The appellant convicted by the Additional Sessions Judge/Special Judge,
Anti-Corruption U.P (East) Dehradun in ST 166/1992 under Section 302 of
the Indian Penal Code, 1860 (hereinafter referred to as "IPC") for life
imprisonment, as confirmed by the Division Bench of the High Court of
Uttarakhand at Nainital in Criminal Appeal No. 888 of 2001 seeks acquittal.
2. Heard learned counsel Mr. D.P Singh appearing for the appellant and the
learned counsel Mr. Saurabh Trivedi appearing for the respondent. We have
perused the entire records placed before us, and taken due note of the
1
BRIEF FACTS
3. The deceased, Gajendra Singh went to a picnic along with two friends,
Suresh (PW-2) and Sunil Manda! (PW-3) at about 11 a.m. on the fateful day
- 21.06.1992. On their return, they were intercepted by the appellant riding
on a motorcycle. The appellant by uttering the words "Today I shall pay all
your dues", attacked the deceased Gajendra Singh with a knife inflicting two
fatal blows on the chest and stomach respectively. The motive of the attack
appears to be the failure of the appellant in completing the work for which
the deceased gave a sum of Rs.500/-.
4. PW-2 and PW-3 took the deceased, who was bleeding profusely on a tempo
whose driver has not been examined, to the hospital in which PW-5 was
working. After admitting the deceased in the hospital, PW-2 went to the
house of the deceased by travelling, which took him 15 minutes, and passed
on the information of attack on deceased, to his father, PW-1. On
examination, PW-5 found that the deceased was in a serious condition and,
therefore, merely gave first aid and referred the deceased to a hospital in
Dehradun. After reaching the hospital, PW-1 made an enquiry with the
deceased who gave a dying declaration narrating the incident. PW-5 did not
speak about the presence of any of the witnesses except the fact that the
deceased was admitted by PW-3 and, therefore, did not refer to the said
2
dying declaration given to PW-1. PW-1 dictated the complaint to one Mr.
Inder Singh (not examined) and went to the police station situated just
opposite to the hospital. Prior to the aforesaid action on the part of PW-1,
PW-5 has made an entry in the emergency medical register which was
subsequently filled up by another person named Dr. B.V. Sharma (not
examined). Dr. B.V. Sharma sent report immediately to the police station.
~-.. ·~elo.fE!· ~W-t<;~llld• r~atli ·.tne police statiqii,iJhe):eport froni.tfteliospitaJ..had

readied11nd,· therefore,. investigation was.triggerl!d. ··•·.·However, .. ne1ilier. F.rr:st
Infofui~ticln Report (FIR) fiad t,eeri registered nor notirlg had been madeJn
th¢ general illary. ln fact; the avrulabJe nbtfog on ilie general. illary. illd not
disclose ~y•. offerice·· committed on2l.06.1992, as perthestatenienf of PW.:

13,whoproqucecl the same before the ci;ittrt:.
6. PW-2 and PW-3 took the deceased to the nearby hospital at Dehradun as per
the version of PW-1 and PW-2, while PW-3 said it was himself and PW-1
who undertook the said exercise. As per the version of PW-8, the doctor who
attended the deceased at the Dehradun hospital, the deceased was brought to
the hospital by his brother Mr. Bhupender Singh (not examined).
7. PW-11 took up ilie investigation. He went to the place of occurrence, drew
the sketch and prepared the site plan. While returning, he was informed by
PW-7, another brother of the deceased that he received information that the
3
appellant was trying to escape to Dehradun. PW-6, who heard about the
occurrence, went to the place of occurrence out of curiosity. The appellant
was found and arrested at about 50-60 yards from the place of occurrence by
PW-11 in the presence of PW-6, PW-7 and one Mr. Sanjeev Saini (not
examined). The knife that was said to have been used for committing the
offence was recovered from an open place at about 50 steps near the place of
occurrence. No arrest memo has been prepared though an entry was made in
the general diary. Recovery memo was signed by PW-6 and PW-7 alone.
8. The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which
indicated two major injuries, in tune with the case of the prosecution. PW-9,
being the police officer of a different jurisdiction, prepared the inquest
report, presumably on the ground that the ultimate death happened there, as
the second hospital was situated within his jurisdiction.
9. After the initial investigation by PW-11, PW-12 took over the further
investigation, but did not take adequate care to check and verify the earlier
statements given by the witnesses. Some of the witnesses have been
examined at the earliest while the others like PW-2, PW-6 and PW-7 were
examined 2 weeks thereafter. The FIR was curiously sent by post and,
therefore, reached the jurisdictional magistrate days thereafter.
4
10.During the course of trial, the prosecution examined 13 witnesses. In the
questioning made under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter referred to as "CrPC"), the appellant clearly denied all the
charges levelled against him. On a request made on behalf of the appellant,
the general diary was summoned and perused by the trial court. This was
done as a question was raised on the story propounded by the prosecution
which goes to the date and time of the occurrence. On perusal, the trial court
found out that there were certain interpolations with specific reference to the
dates and certain pages were missing and jumbled. While giving a finding
that the noting of the date as 22.06.1992 and thereafter striking it off to
21.06.1992 as a clerical mistake, the trial court went on to put the blame on
the appellant that he maneuvered to do so in connivance with somebody,
though the said correction could only help the case of the prosecution.
11. While convicting the appellant, the trial court placed heavy reliance upon the
evidence of PW-1 to PW-3. The discrepancies qua the emergency medical
register and amongst the statements of PW-1, PW-2 and PW-3 were brushed
aside as minor and natural or ignorable discrepancies due to the passage of
time. Much reliance has been placed on the recovery of the two-wheeler,
though not mentioned in the site plan. The delay in recording the statement
of the witnesses were also taken lightly. The so-called dying declaration
5
given before PW-1 was accepted, despite a clear statement made by PW-5
that none was present during the stay of the deceased with him till he was
sent to the other hospital.
12.The High Court concurred with the decision of the trial court by placing
reliance upon the post-mortem report and the testimony of PW-1 to PW-3.
SUBMISSION OF THE APPELLANT
13.Leamed counsel for the appellant submitted that the evidence of PW-1 ought
not to have been accepted by both the courts. The report from the hospital
had reached the police station much before. The person to whom PW-1
dictated the complaint has not been examined. There is no material for
motive and the testimony of PW-1 is contrary to the one given by PW-3,
PW-5 and PW-8. Similarly, the presence of PW-2 is extremely doubtful as
his evidence was recorded weeks thereafter. He was also not found to be
present by PW-3 in the second hospital, though PW-3 deposed otherwise.
Therefore, evidence of PW-2 also ought to have been eschewed. His
statement that it is PW-1 and himself who took the deceased to the second
hospital is found to be incorrect in view of the testimony of PW-8. The
courts below ought to have placed adequate reliance upon the evidence of
PW-5 and PW-8, the doctors, who were admittedly working in the hospital at
the relevant point of time. The fact that the FIR was not registered
6
immediately after the information was received clearly indicates that it was
ante-dated. This contention is also strengthened by the inquest report
prepared by the police officer of a different police station i.e. by PW-9.
14.Leamed counsel vehern'eritly contended .that the trial court has COil:nfiitted '
grave error in .riot noting the fact thatno time, date and adequate particulars
were lllenµonedin the case diary. The. object and rationale behind .Section
172,·of Ci:IIQ cQ11pled.Witll$eC2ti9n:s}4S,; l6faiidt65 i:>f tlle ]~tliaiiEVIclerice
Act, ·.J.872 (hereiiiafter referred to as "Eviclence A#'') have been tlearly

ov~rltiokedbyboth the courts: •The motive•liasnorheen .provedas:witnesses
have notspol<:eri about itm their statements under Section 161 ofCrPQ: Ids
a case of completely htitthed upirivestlgation.and, thetefote, tlie·· appellant
deser.ves acqmtta1.
SUBMISSION OF THE RESPONDENT
15.Leamed counsel for the State placed substantial reliance upon the recovery
of the vehicle. It is stated that admittedly the vehicle belonged to the father
of the appellant. That is the reason why an application was filed seeking its
custody, which came to be allowed. Both the courts have rightly held that
the discrepancies are bound to happen in view of the passage of time from
the date of incident till the deposition is recorded in the Court. PW-2 and
PW-3 did not have any ulterior motive or reason to implicate the appellant.
7
PW-3's statement has been recorded at the earliest. There is nothing wrong
in the inquest report submitted by PW-9. As there is no perversity,
appreciation by both the courts of the evidence available on record for
coming to their conclusion does not warrant any interference.
DISCUSSION
16. Before considering the factual submissions of both sides, we shall first deal
with the position of law which is relevant for deciding the appeal.
Investigation and the Role of Investigating Officer
17.An investigation of a crime is a lawful search of men and materials relevant
in reconstructing and recreating the circumstances of an offence said to have
been committed. With the evidence in possession, an Investigating Officer
shall travel back in time and, therefore tick off the time zone to reach the
exact time and date of the occurrence of the incident under investigation.
The goal of investigation is to determine the truth which would help the
Investigating Officer to form a correct opinion on the culpability of the
named accused or suspect. Once such an opinion is formed on a fair
assessment of the evidence collected in the investigation, the role of the
court comes into play when the evidence i.e. oral, documentary,
circumstantial, scientific, electronic, etc. is presented for and on behalf of
the prosecution. In its journey towards determining the truth, a court shall
8
play an active role while acknowledging the respective roles meant to be
played by the prosecution and the defence. During the entire play, the rules
of evidence ought to be honoured, sprinkled with the element of fairness
through due procedure. Adequate opportunities would have to be given to
challenge every assumption. Administration of criminal justice lies in
determining the guilt of the accused beyond reasonable doubt. The power of
the State to prosecute an accused commences with investigation, collection
of evidence and presentation before the Court for acceptance.
ts.The It1vestigati11g agency, the prosectitor artd the defertce are expected to
lend atnple assistance to die cottrtin order to decipher die truth. As the
investi:gati1:1g agertcy is supposed toirtvestigate a•ctfufe,its. primacy •du.ty fato

find out the plausible·•.offender tlii-ou:glithe'mateiials··collectecl, <It lliay .• or
lliay not.beppssible forthe. saicl ageµc:y.to collect every material,bufit has
toforfu. its.opinion ·witlrthe availaolexnateriaL Thete·.is• rtone¢clJor such an
agency to filt someone .as an accusei:l at any cost..· •· n is hltimatelffor the
court to decide wh:o die ctilprif is. Arvind Kumar @ Nenlichillld & Ots. \f.
StateufRajasthau,··(2021)llSCR237,
''Fair. Defective.. cofourable Investigation

40. An Investigating Officer being a public servant is expected to
conduct the investigation fairly. While doing so, he is expected to look
for materials available for corning to a correct conclusion. He is
concerned with the offense as against an offender. It is the offense that
he investigates. Whenever a homicide happens, an investigating officer is
9
expected to cover all the aspects and, in the process, shall always keep in
mind as to whether the offence would come under Section 299 IPC sans
Section 300 IPC. In other words, it is his primary duty to satisfy that a case
would fall under culpable homicide not amounting to murder and then a
murder. When there are adequate materials available, he shall not be
overzealous in preparing a case for an offense punishable under Section
302 !PC. We believe that a pliable change is required in the mind of the
Investigating Officer. After all. such an officer is an officer of the court
also and his duty is to find out the truth and help the court in coming
to the correct conclusion. He does not know sides, either of the victim
or the accused but shall only be guided by law and be an epitome of
fairness in hjs investigation.
0
defective
a ••• ' ble
iirii• Jlffi~tt • <:c , " "otv~- a
i~!Jfn~:to~~:~tft" ~er,; s~11tt,~ot ~ei.. ~attt1c,atnn'~
eit1Terfirt1t~Pf9S~Monl>f.by.thg ooJ1rtas;1easJ!.·mvolvesan•elernent
oflawratherthanmoralli;y.
XXX XXX XXX
44. We would only reiterate the aforesaid principle qua a fair investigation
through the following judgment of Kumar v. State, (2018) 7 SCC 536:
"27. The action of investigating authority in pursuing the case in

the manner in which they have done must be rebuked. The High
Court on this aspect, correctly notices that the police authorities
have botched up the arrest for reasons best known to them.
Although we are aware of the ratio laid down in Parbhu v. King
Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], wherein the
Court had ruled that irregularity and illegality of arrest would not
affect the culpability of the offence if the same is proved by cogent
evidence, yet in this case at hand, such irregularity should be
shown deference as the investigating authorities are responsible for
suppression of facts.
28. The criminal justice must be above reproach. It is

irrelevant whether the falsity lie in the statement of witnesses
or the guilt of the accused. The investigative authority has a
responsibility to investigate in a fair manner and elicit truth. At
the cost of repetition, I must remind the authorities concerned
to take up the investigation in a neutral manner, without
10
having regard to the ultimate result. In this case at hand, we
cannot close our eyes to what has happened; regardless of guilt or
the asserted persuasiveness of the evidence, the aspect wherein the
police has actively connived to suppress the facts, cannot be
ignored or overlooked."
45. A fair investigation would become a colourable one when there

involves a suppression. Suppressing the motive, injuries and other
existing factors which will have the effect of modifying or altering the
charge would amount to a perfunctory investigation and. therefore.
become a false narrative. If the courts find that the foundation of the
prosecution case is false and would not conform to the doctrine of
fairness as against a conscious suppression. then the very case of the
prosecution falls to the ground unless there are unimpeachable
evidence to come to a conclusion for awarding a punishment on a
different charge."
( emphasis supplied)
19.Common Cause and Others v. Union of India, (2015) 6 SCC 332,
"31. There is a very high degree of responsibility placed on an

investigating agency to ensure that an innocent person is not subjected to a
criminal trial. This responsibility is coupled with an equally high
degree of ethical rectitude required of an investigating officer or an
investigating agency to ensure that the investigations are carried out
without any bias and are conducted in all fairness not only to the accused
person but also to the victim of any crime, whether the victim is an
individual or the State."
Cc1$e<Diaey
Sectionl72·ofCrPc
«f1Z. •~~~·of p~c:e~n119i i~ i11vei1tig~on."--{1) l.:vety . police·officer

m,kjng',n inves~g,tiqnccun1er thlt~ha~ter . •. ~halli .~ay.by·.1~Y.•.e1ttel'•.lti~
l)l;oceedipgsJn.the.ipvestiga1:\C1Phl,il,~~;selting;~;t!Jetime,ap,d1ii;,b
tht infqnnatlonle.rclied.hinl; the. time,at,;1\Thiclt lte beg<lll..andclos.ed.•.his
investigation, the place or placE!s \Iisit~ by hinl, and .a .statement of the
circumstances ascertained through his investigation.
11
(1,A) The: ..statements ..of Witnesses recorded d11ring me colll'se of
investigation under sec:tion 16:t shall.be inserted Ill the•case.diary.
(1:~lJ'he diary referie:dtc> in sul),section {1) shall be avolume and duly

pagwated.
(2)..A.ili:,~al.G!lllrt,!ll~Y s~~d.~cn\the.· poli~e.•diiltje:s•. •of.il;<:ase Uffder
iitqu~ ettrhil~ S1,lq) C:c>~ ~d f!lilY ;use such diaries, .not as evidence:. in
the.case,. but.to.aiditil\suchinqtlirygrtrllil.
(::t)•Neitlterthe: acci¥ed.•.not 1'is·.ag,fots.shalr•bee:rititlei!·to•can•. for•such
Ol-m~Wi ~~.s~t.~~<o(mett>~i!~tle.11 f6"$1e t!t~~fut!ti!lif .lli!£llt!iie,~e¥ ar~
ref~~~(e 1:ittll(fC:Qlll't;l:iut,Jf tlleyrare;u.s;et:t 1:IY' tlle.relice;o~C~l'.~ll!l
l'li,:ldl!"tlltll'li!j>J;e~~~:lllill'liOry(Ofif;jletsolll't',eft11el'lifofmtP\U.'})Osil
oft C()ll.~,~~!J.••Sl!~lpbljf¢ ~ff(cer, .t11e,;~r()~~11,.j6:f.~7~Pl! l~JQr
Sil!e~o;u14:>r,~ th.e case may be,of .the Indian. Evide:nce..Act, .• '.l872 ~1.· of
1872), sballapply."
S¢ction 14li oltlteRvidence:Ag:
~1.~.1;('.;~~il~!~~~~,>il~!0 .;P:~~,~/~,~~effi~~·,~~~';·•·J\.
~f:(I~~. r~r{!'ie .Cl'()S~j~ill'li~~···~·· !R rre:....!e;us.~ar~~e;u~ l'liilde:, lly ~~!;u
Wtiting,Q~•,edll£~inio writing, lllld•ri!l¢villlt to~afillrS~ CJ.llt!s,tlQ!i, ~thout
~ell;•~~~ be:1:;uip sb9w,n ~o bim;or .bt!~grpr?ve~; bqt;if·•~tis!;utertdt!l'I. to
CC)llt.i''l9i~ ~ by·;~t! ~~llg;ms,attell~(!ll.lll~t,befort!. tllf?~~gcill; be
prc>yed,Jje £i11I.elitg those p~. of It whkb a;e• to lle used for .the•plll'poseof
cQntradictiUg him."
Section16lo:ftheclmdew;ecArt
"16t:Ri~tof/a~rse~ftowptq1g.~~dt1>•~hrnent11J:Y.~
Anr·.·~ting•. re(el"l"~•.to unl'l.e!··tlie.• pro'lli~jons• •. ~fthe•. J;wo••·.last•. Preceding
secti.oll~ lllll~tbll prelduced /Jild sf!owh to.(he a,dyerse party if f!e.~equjres it;
suclt party may, if he. pleases, cross,exannne the Witriess thereupon:•
20.A case diary is maintained by an Investigating Officer during his
investigation for the purpose of entering the day-to-day proceedings of the
investigation. While doing so, the Investigating Officer should mandatorily
record the necessary particulars gathered in the course of investigation with
12
the relevant date, time and place. Under sub-section (1-A) and (1-B) of
Section 172 of CrPC, the Investigating Officer has to mention, in his case
diary, the statement of witnesses recorded during investigation with due
pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with
effect from 31/12/2009. The object of these sub-sections is to facilitate a fair
investigation since a statement made under Section 161 of CrPC is not
expected to be signed as mandated by Section 162 of CrPC. To highlight the
importance of adhering to the requirements of these sub-sections, we rely
upon the Law Commission of India's One Hundred and Fifty Fourth Report
(154th) on Code of Criminal Procedure, 1973, Chapter IX,
"7. After giving our earnest consideration and in view of the fact that there
is unanimity in respect of the need for making substantial changes in the
law, we propose that there should be changes on the following lines :
... The signature of the witness on the statement thus recorded need not be
obtained. But, if the witness so examined desires a copy of such statement
so recorded shall be handed over to him under acknowledgement. To
reflect the shift in emphasis. a corresponding amendment to Section
172 should also be made to the effect that the Investigating Officer
maintaining the case diary should mention about the statement of the
circumstances thus ascertained. and also attach to the diary for each
day. copies of the statement of facts thus recorded under Section 161
CrPC. Neither the accused nor his agent shall be entitled to call for
such diaries which can be put to a limited use as provided under
Section 172 CrPC. Under the existing provisions of the Code, the
preparation of the earliest record of the statement of witness is left in
the hands of Investigating Officer and as the mode of recording as
provided in section 162 does not ensure the accuracy of the record (It is
well known that many good cases are spoiled by insidious incorrect
entries at the instance of the accused and it is also well known that
many innocent persons are sent up along with the guilty at the instance
of informant's party), ... "
(emphasis supplied)
13
21. In furtherance of the above suggestion, the Law Commission of India
accordingly provided a draft amendment to Section 172 of CrPC for the
consideration of the Parliament,

" ... On the above mentioned lines, the relevant Sections can be amended as
follows:
xx.xx
172(1) Every police officer making an investigation under this chapter shall
day by day enter his proceedings in the investigation in a diary, setting
forth the time at which the information reached him, the time at which he
began and closed his investigation, the place or places visited by him and a
statement if the circumstances ascertained through his investigation; and
also attach to the diary for each day copies of statement of facts. if any.
recorded under Section 161 in respect of the person or persons whose
examination was completed that day.
(2) Any criminal Court may send for the police diaries of a case under
inquiry or trial in such court, and may use such diaries, not as evidence in
the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such
diaries, nor shall he or they be entitled to see them merely because they are
referred (to) by this Court."
(emphasis supplied)
22. While it is the responsibility and duty of the Investigating Officer to make a
due recording in his case diary, there is no corresponding right under sub-
section (3) of Section 172 of CrPC for accused to seek production of such
diaries, or to peruse them, except in a case where they are used by a police
officer maintaining them to refresh his memory, or in a case where the court
uses them for the purpose of contradicting the police officer. In such a case,
the provision of Section 145 or Section 161, as the case may be, of the
Evidence Act, shall apply.
14
23.Law i$ quite settled that· an improper maintenance. of a case diary. by the
:fovestigating Officer will not enure to •the benefit of.the· accu~ed. .Prejudice
has to be shown..and proved hy the accused despite nori~compliance of

Section 112 ofCrPC in a given case. Hoi--\tever; this. does not take away the
m.utdatory duty of. the police officefto maintain· it properly. As the. court· is
the guarcliario.f truth, it fa the duty ofthe investigating Officer: to satisfy the
court'\\Th¢ri]t.~eek'!;Jtfc9no:,d.i~fhnn,·•·J"he~glit6fthe,cictt1seclis;therefore;
very .resttimve arid litnitt!d; Bhagwaitt.Shig&; ~-. Commi~ioner ofPolice,
(1983)3:SCC 344,
~ti(pte,(lti:\~f.i~!~ti!IllJe t\l~c:n, clis~, ~i~ tl:lat t11:, ~n~~~ ~~¢;pi,~~e

c:~stm~.(~ tJ.(I~ ~~e~llll~l'l!r.tre"~~~If/lc~~~/l'.yif~1' tl:l~rrc:()~)
1
dt:1r9?~ ~P~f/arJ!J. lt,~~ ~~ii~.~111~~?1~flt,tl:l¢1~c:tr11:1ttl.9~.c:~m@1.~t~n,e,~~,.~11?

t>ffilJi.e!'lcyWltitili\i:ht>
•;.i·•- ·-. >·-
law, req~S,Qf.-.:-.,->.,·.
,- ,, "·",, '· . . ---_-
a tl~ent•1tielighazard
$t1i:h'·,:,,:->---.'---- -.·. .-.;v • -··</.- .:.--..-- <··.->~(J.'-::.
·,,"<>-'· ·., - , •._,,, :-- . -. ..: ,,_,,, ,-_, ·- ·.,.·-. ,,_>_--:,:,._,,-. -:,,,- -"'·"'°"- -:,_:
ns mai ~ii ·~ fo
w~tit,~~·.·~~·•t1t¥>1jijirt@,;~-~~i~~~1~.~t·111•d.i~~11st
1~e~9'~1,~l}s~es~~P~!5~;~1}dj~~~bt:J!ach,:.~tb
~P~-~~uffitil!llt•.~tmt.•.lllfW~~ili@•i!'•·~a,n•facts.•m
canjfill cllronologit:al order and with 11omplete objettivity,"
(emphasis supplied)
24. Baleshwar Mandal v. State of Bihar, (1997) 7 sec 219,
"5. Under Section 172 CrPC read with Rule 164 of Biffar Police
Manual dealing with the investigation. an Investigating Officer
investigating a crime is under obligation to record all the day-to-day
proceedings and information in his case diary. and also record the time
at which the information was received and the place visited by liim.
15
besides the preparation of site plan and other documents. The
Investigating Officer is also required to send bloodstained clothes and
earth seized from the place of occurrence for chemical examination.
Fallure on the part of the Investigating Officer to comply with the
provisions of Section 172 CrPC is a serious lapse on his part resulting
in diminishing the value and credibility of his investigation. In this case
the Investigating Officer neither entered the time of recording of the
statements of the witnesses in the diary nor did he send the bloodstained
clothes and earth seized from the place of occurrence for examination by a
serologist. The High Court also adversely commented upon the lapses on
the part of the Investigating Officer in not complying with the provisions of
the Code of Criminal Procedure. We, therefore, take it that, in fact, there
was serious lapse on the part of the Investigation Officer in not
observini: the mandate of Section 172 CrPC while investigating the
case which has given rise to this appeal. But the question that arises for
consideration is, has any prejudice been caused to the accused in the
trial by non-observance of rules by the Investigating Officer? The
evidence on record before the Sessions Court and the appellate court does
not show that due to the lapses on the part of the Investigating Officer in
not sending the bloodstained clothes and earth seized from the place of
occurrence for chemical examination and further not noting down the time
of recording the statement of the witnesses in the diary has resulted in any
prejudice to the defence of the accused. In the present case, the place of
occurrence and the identity of the deceased are not disputed. Further, the
testimony of the eyewitnesses which is consistent and does not suffer from
infirmity, was believed by both the courts below. Once the eyewitnesses
are believed and the courts come to the conclusion that the testimony
of the eyewitnesses is trustworthy. the lapse on the part of the
Investigating Officer in not observing the provisions of Section 172
CrPC unless some prejudice is shown to have been caused to the
accused, will not affect the findini: of llPilt recorded by the Court.
Neither before the High Court nor before this Court, it was pointed out in
what manner the accused were prejudiced by non-observance of the
provisions of Section 172 CrPC and the rules framed in this regard. We are,
therefore, of opinion that judgments of the courts below do not suffer on
account of omission on the part of the Investigating Officer in not sending
the earth seized from the place of occurrence for chemical examination or
in not entering the time of recording of the statements of witnesses in the
diary."
(emphasis supplied)
25. Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353,
16
"203. The scheme of the CrPC under Chapter XII (Information to Police
and Powers to Investigate) is clear - the police have the power to
investigate freely and fairly; in the course of which, it is mandatory to
maintain a diary where the day-to-day proceedings are to be recorded with
specific mention of time of events, places visited, departure and reporting
back, statements recorded, etc. While the criminal court is empowered to
summon these diaries under Section 172(2) for the purpose of inquiry or
trial (and not as evidence), Section 173(3) makes it clear that the accused
cannot claim any right to peruse them, unless the police themselves, rely on
it (to refresh their memory) or if the court uses it for contradicting the
testimony of the police officers. [Mukund Lal v. Union of India, 1989 Supp
(1) sec 622 : 1989 sec (Cri) 606; Malkiat Singh v. State of Punjab,
(1991) 4 sec 341 : 1991 sec (Cri) 976]
204. In Manu Sharma [Manu Sharma v. State (NCT of Delhi), (2010) 6

sec 1 : (2010) 2 sec (Cri) 1385] , in the context of police diaries, this
Cornt noted that "[t]he purpose and the object seems to be quite clear that
there should be fairness in investigation, transparency and a record should
be maintained to ensure a proper investigation". This object is rendered
entirely meaningless if the police fail to maintain the police diary
accurately. Failure to meticulously note down the steps taken during
investigation. and the resulting lack of transparency. undermines the
accused's right to fair investigation; it is up to the trial court that must
take an active role in scrutinising the record extensively. rather than
accept the prosecution side willingly. so as to bare such hidden or
concealed actions taken during the course of investigation. [ Role of the
courts in a criminal trial has been discussed in Zahira Habibu/la H. Sheikh
v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999. ]"
(emphasis supplied)
26.When a police officer uses case diary for refreshing his memory, an accused
automatically gets a right to peruse that part of the prior statement as
recorded in the police officer's diary by taking recourse to Section 145 or
Section 161, as the case may be, of the Evidence Act.

27.Section 172(3) of CrPC makes a specific reference to Section 145 and
Section 161 of the Evidence Act. Therefore, whenever a case is made out
either under Section 145 or under Section 161 of the Evidence Act, the
17
27(
benefit conferred thereunder along with the benefit of Section 172(3) of
CrPC has to be extended to an accused. Thus, the accused has a right to
cross-examine a police officer as to the recording made in the case diary
whenever the police officer uses it to refresh his memory. Though Section
161 of the Evidence Act does not restrict itself to a case of refreshing
memory by perusing a case diary alone, there is no exclusion for doing so.
Similarly, in a case where the court uses a case diary for the purpose of
contradicting a police officer, then an accused is entitled to peruse the said
statement so recorded which is relevant, and cross-examine the police officer
on that count. What is relevant in such a case is the process of using it for
the purpose of contradiction and not the conclusion. To make the position
clear, though Section 145 read with Section 161 of the Evidence Act deals
with the right of a party including an accused, such a right is limited and
restrictive when it is applied to Section 172 of CrPC. Suffice it is to state,
that the said right cannot be declined when the author of a case diary uses it
to refresh his memory or the court uses it for the purpose of contradiction.
Therefore, we have no hesitation in holding that Section 145 and Section
161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the
other are to be read in consonance with each other, subject to the limited
18
right conferred under sub-section (3) of Section 172 of CrPC. Balakram v.
State of Uttarakhand and Others, (2017) 7 sec 668,
"9. The aforementioned proV1S10ns are to be read conjointly and

homogenously. It is evident from sub-section /2) of Section 172 CrPC.
that the trial court has unfettered power to call for and examine the
entries in the police diaries maintained by the investigating officer.
This is a very important safeguard. The legislature has reposed
complete trust in the Court which is conducting the inquiry or the
trial. If there is any inconsistency or contradiction arising in the
evidence, the Court can use the entries made in the diaries for the
pm;poses of contradicting the police officer as provided in sub-section
13} of Section 172 CrPC. It cannot be denied that the Court trying the
case is the best guardian of interest of justice. Under sub-section (2) the
criminal court may send for diaries and may use them not as evidence, but
to aid it in an inquiry or trial. The information which the Court may get
from the entries in such diaries usually will be utilised as foundation
for questions to be put to the police witness and the court may. if
necessary in its discretion use the entries to contradict the police
officer. who made them. But the entries in the police diary are neither
substantive nor corroborative evidence, and that they cannot be used
against any other witness than against the police officer that too for the
limited extent indicated above.
10. Coming to the use of police diary by the accused, sub-section (3) of
Section 172 clearly lays down that neither the accused nor his agents shall
be entitled to call for such diaries nor he or they may be entitled to see
them merely because they are referred to by the Court. But. in case the
police officer uses the entries in the diaries to refresh his memory or if
the Court uses them for the purpose of contradicting such police
officer. then the provisions of Sections 145 and 161. as the case may be.
of the Evidence Act would apply. Section 145 of the Evidence Act
provides for cross-examination of a witness as to the previous
statements made by him in writing or reduced into writing and if it
was intended to contradict him in writing. his attention must be called
to those portions which are to be used for the purpose of contradiction.
Section 161 deals with the adverse party's right as to the writing used
to refresh memory. It can. therefore, be seen that. the right of the
accused to cross-examine the police officer with reference to the entries
in the police diary is very much limited in extent and even that limited
scope arises only when the Court uses the entries to contradict the
police officer or when the police officer uses it for refreshing his
memory.
19
11. In other words, in case if the Court does not use such entries for the
purpose of contradicting the police officer or if the police officer does
not use the same for refreshing his memory, then the question of the
accused getting any right to use entries even to that limited extent does
not arise. The accused persons cannot force the police officer to refresh
his memory during his examination in the Court by referring to the
entries in the police diary.
12. Section 145 of the Evidence Act consists of two limbs. It is provided in
the first limb of Section 145 that a witness may be cross-examined as to the
previous statements made by him without such writing being shown to him.
But the second limb provides that, if it is intended to contradict him by the
writing, his attention must before writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting him.
Sections 155(3) and 145 of the Evidence Act deal with the different aspects
of the same matter and should, therefore, be read together.
13. Be that as it may, as mentioned supra, right of the accused to cross-

examine the police officer with reference to the entries in the police
diary is very much limited in extent and even that limited scope arises
only when the Court uses such entries to contradict the police officer
or when the police officer uses it for refreshing his memory and that
again is subject to the provisions of Sections 145 and 161 of the
Evidence Act. Thus, a witness may be cross-examined as to his
previous statements made by him as contemplated under Section 145
of the Evidence Act if such previous statements are brought on record,
jn accordance with law, before the Court and if the contingencies as
contemplated under Section 172(3) CrPC are fulfilled. Section 145 of
the Evidence Act does not either extend or control the provisions of
Section 172 CrPC. We may hasten to add here itself that there is no
scope in Section 172 CrPC to enable the Court, the prosecution or the
accused to use the police diary for the purpose of contradicting any
witness other than the police officer who made it."
(emphasis supplied)
First Information Report vis-a-vis Case Diary
Section 154 of CrPC
20
"154. Information in cognizable cases.-(1) Every information relating to
the commission of a cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information,
whether given in writing or reduced to writing as aforesaid, shall be signed
by the person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may
prescribe in this behalf ... "
28. The mandate of Section 1$4 of CrPC implies that every,·. infom:ia.tion
discl6sing. commission.of a.cogmzahleofteni:e:shall be entered ht a book to
oe~~Ptlit,the·officefilt•clii:ifg~ ofthepflli!:ie·stal!6uI11•sµcp. fon:rfi:is the sti:ite
Govemilienfmayp(~strihe,·.·•1111;aiita:g11B1llrii'v•.• Gl)Ve~en.t•·o~t;Jtt~
Iiradeslf.&.~ersJ(2014) 2 sec 1; the Coristitution Bendt of thisC()mt
while arisweringtl:ie qtiesti6ri·ias.to wnetheI' titeiitfotiliati()Il·•discl6sft)g
COl1llillSSlllll••()fll.C(lgnizaQle offence-i.li~fnstbe entetedintu tli~gener.u
Diary·.•.or m-i l:iuo,k••k~fhytl:ie·.Offic~t ill charge'.ofPlllk~Statio11.\i/l:iicli.iri
c9111111on pijiait¢!f is tefe11."ea· a~<•.~lrst•·•· i~toi'ni"io:<i,ll/Repurt..••liijs• l#tic.Uly
ajtalyzecf tlie interpiay·•·IJ.etw-een ·Se~on t5-4'of CrPC . anci Sectl6n···44••· of'the
Poli,t;e k\ct,•·••ta'1t,'JWi;.•. Comtialso n<1d otca.sionto.. .rn~yze.•••t1te••1egislatiye
0
histqzy . .•of t:rl)<:;1861, Ctl1C 1973••.iindtlrEi'PoiiceAi;t ··rs61 ·to answ-er the

aforesai.4,ques:tign; .iijereoY.··it· wa~.lte,lci<tbaf ajt I11foi'iliati~1.1 ctiscl<i,sing
commi~sio1rofaC:ognizable.•offence sh@firsthe•e11tetecl•·in·.·a·b9okkept.•by
the •officei in charge ·. of • p6liize >station attd not i1l the •General Diary.
Therefore, ft. is .runpl:Y:.clear that •a.Gerieri:il Diary ehtry• ca~ncjt pi'ecede tile
regis~ati,01;lJJf•.·.111R,·•.~1:ept •. in .i:a~¢.~.-wher¢•··.pretiwmacy. iltqtliry••is.n.~e(\ec!.
While an FIR is to•'lJe registered 6n an ~fotillation • disclosing the
comm.1ss1_on ·t·
o · a..
• • •, .•. ·••CY
cogn1zau111···.·u:·
h
e onence, •.•.
so . a·1,··,
so a_.··.,•~x,:..·•·•''
recorU111g ls the'reafter
required to he made in the case diary. La.lita Kumari (Supra),
21
" · ,Jt:is.c · · ••. · .·. • •. · • · · ·. •· •. . ·•...• • • · •.· • • • ••· te of
154
~~·.11',j~JJllsc~f~Polic:~A;~.a~~licabtetll·aStatellrunder
t)ie•P@te Manualof aState.•asffietasemaybe"
58. Section 44 of the Police Act, 1861 is reproduced below:
"44.Police officers to keep diary.-It shall be the duty of every

officer in charge of a police station to keep a General Diary in such
form as shall, from time to time, be prescribed by the State
Government and to record therein all complaints and charges
preferred, the names of all persons arrested, the names of the
complainants, the offences charged against them, the weapons or
property that shall have been taken from their possession or
otherwise, and the names of the witnesses who shall have been
examined.
The Magistrate of the district shall be at liberty to call for and
inspect such di.ary."
59. It is pertinent to note that during the year 1861, when the aforesaid
Police Act, 1861 was passed, the Code of Criminal Procedure, 1861 was
also passed. Section 139 of that Code dealt with registration of FIR and
this section has also referred to the word "diary", as can be seen from the
language of this section, as reproduced below:
"139.Complaint, etc., to be in writing.-Every complaint or
information preferred to an officer in charge of a police station,
shall be reduced into writing, and the substance thereof shall be
22
entered in a diary to be kept by such officer, in such form as shall
be prescribed by the local Government."
(emphasis supplied)
Thus. the Police Act. 1861 and the Code of Criminal Procedure. 1861.
both of which were passed in the same year. used the same word
"diary".
60.Mtlw~er,.in the/year,18'(:i, ,lli~.C:odf.\Cc~e tll be passed,wrncb.was

caU~~.tltj <;9de 9f <StjJ"11i()!tiP1-(Jc:edw;e, J;~'(?· ,secti(J() } 1J·. (Jf ~he•· Code
dealt:witlithe issue of regisll'ation of I1IRanr1 is reprciduc:ed below;
'ffi~.(:ti~lJ(~i~t,(<>IJ(ll{~i,.~ ~'1: i~ ~~119.7•·. °E".efY',c~~plilirit
prefe~rl tq:l!ll"<>ffic:eiz~charge {)f'a<po1ic:estatjo11 shallbere~,c:erl
,itq.~~U/I~ril11'1$ltall.cR:Ji~etisse~er1t.Cif.~kl!t hr tlteg~()Ii
a
~<1~g.l~.·•··~<I·.•tije,s11~~a11c:e. tlte~9~ ~?all !'.l.:c¢11fered..i» ~f.to
be~kept ?:\'Such ·officer iii. the·fo11Uprescribed:by .the·.·Iocal
Goyemml!llt''.
Gt. ;11ie qtie~tion tlillt w~ether,Ef FIR is t°: be record!!(l in.the FIR book or
i11 t~: C,E!ll¢r,l pi~,·. is.no m!!reJes .integra, ·'This· issue. has .alreally been
decid¢daµthoritatively by this Co.mt
.•• >'.••>••······:.· ·,, .•••.••• ··•.thgstil>s ..........., ....•.• ···•••·• ..

···6rm
eFm.fn'.
cv.Bli
~~•I!192'SC{;(~~li~paurt:~~Id•~~li~tl!~ee1tt¢ttd
which.is: totmnj)filycall¢d. tlte first information
iD;a.hMkin if form
report.
63,ttis thus. dear that ••~gistration .of FIR is to be done· in a .book

called FIR book or FIR register. Of course, in addition, the gist of the
23
FlR .or .the •··• subsmtce of the·•· FlR ~ also be .me?tioned
,~n,niltattt!jlll~l¥•i?··•t~e•. .Ge11!~al .·l)J,J~•.~.·••'Wm~ i~.~~I!· ~pe~
P?Ji(e ~t:t: or Rules, as the case may be,. ·under die relevant·· State
provisions,
64, 1'/it•r~e,t,i•·t>t~··. i§. J•.·?l!COf~?fCt111 il)lpo~{ti-~11S~£(iQll~1e11ts

~ ! { plii£tt iii.ifPQMCl!. l>t,tiQllt illc:11.l~; cli!IJ~l!.llllcl ~"'/1·?f•·PQ~CI!
st~(~andi11g OVl!li.?fJak.illi·.()V!!li()f C,hJ!~e;~est ofa•pefi/Qll,cll!taj!i. qt
l~ llllcl qrd~ clt;it,ie&tvi~t fif •~elliqr. Offi£ers,.;etc,?!tisiti tlti~ c:qntext;•~at
fs~.ot.sµ~~f/i!ic~ i\f e;cl)'.Fl~~1n1tr~ti~~f~~~ tfi~'ti§lii=e,~t~!fQ~'.fsaiso
ll1(!1ltlo111!~~Il>me.~.!?.ll.1!~{1.i··Di~~itice ~~~lion of,f!~,al~q{1.li,:1IJ!!ll.s.to
b.l! lljvl!~~PQ~/i!i! ~l!nt,In•~e p3lic:~c.~t/i!io11. ~iti71! ~lleial pi~isa
fl!C,0~ ., ,<,~ W~ll~e~ !ill.i'!llIQfO!Ji<;~~<Ql1 dai~tqz~~Y. ~3;$i.~ Jgn<l!acl.t
day, s~~tltllew;11~~er.l},.th1!<11!111!!il!,I)~!lll.~fl!{erl!!1C(!ll, ali;9
111,~tl(l11ed;~it11\Jl~eQ9~ly .·iti·. . Wec . fl~··. b,?Qk,. ~hill! Fll.'t 11~ber • •is
lltl!Iltll)n~cl Ii1•~e GeneraLDiary .·entry sincl!.both of these. are prepared
silllUltanecmsly.
65•.tt.•i~ rel~Jilllftc,.po~t..clilf t!Jaf f!Wboll~ ii; !Jlai/ttai)1¢d 'IYitll; it~•·l'l~ber

gJve~o~a,~•· a~p~a,J 9as,15•• J:liis,•·l"l]!lil~5!~hj1p ej!c:h .~!~<~a51;11 •.,i~/,ll~ l1~'!ual
I/UJP~~rciMy~n,tqcJt};.1Jli~i~ l)tl,~iJ.n11.ilr"i~,S/.a~ tli(,.fl1~~!~b.!'.~ lli'!etl in
cg~,,~ ~(lCthi/li:e~9ttrcit•i,sll~,1!•.~o~~~IJ ll'S~ctlon~l ill!d
tl'IJCk....~~171~.of~liy,~··•~··~~·•.~ll
~1itlliy,th!!;<:9~\fllei:ev~ni:c~-.~?te11.~~~R.is·sent.t1>tlte
sup~iorofficers·and.to theJulfidalNfagis_ttatetqn®'led:
6':•.•o,t·•t!Je,dtlier•~3;11d,...91!1lef~J.)1~·•·.c(l*fllinS,.••i!.·•hu~e.1¼1i~per,M~tll;e~
d!!tj1iI5oftlii!pigse'e<if~;t 0 rsl1C~;?!IJ,j~QPJ7 .?f~f~!~al l)i.ttyls,~gl st!nt
to. qie .1:ll«li!;i~ ~a~~atl!;~~*~·Jllli$«li~111.l)Ver.,f1!~••. J?f:!.~i:e. ~t;11!ioI/,
thotl~ ~~copy~•••l>l!lltto,ll~e~orPollc~ offi:c~r,g'l'llll~;.it,is not~i~le
•·· · · • •.· · · · · · · · · · · •11ru,1 evep, · < •• •• • • •• ·• •• ••
67. ™ SI~!)t\lll! ofthe ClllDi;d!Jin!)nt i/l o~e~ m th" .Fl~ Jui••k•.as

antl•~ the'•~laitJt:i,s~¢n'·t!f tlf¢:l)o~~e·s~ti9n; ()ft tftgntlter
7
ba!fflrthe'l'I! is •. 11? SUdti;e<l!J~.gJl!Dt "f •·O~~ning ,~ipiatui:e.• ?'•· the

~laimmt i'1 tltg··G·e"~J.liary.. More?Vef{~tin-les,· . the i:onipJ;unt
given ntaY consist of I~ number of l)ages, D?. -whfoh~ase it is only the
gist of the complaintwhichisto be recorded in the General Diary and
24
not the full complaint.· this. dties ··not fitin with the suggestion that
whlltT •.···.· ··.··•·••.· · <.•.·.·. · • •• •••••••• .<•• •• • ·.····.•: e
~011UJlete.~0111~111t;ilitlteFIR'•~o9'f(dtartnexi~~me·l;J!f•fo~
but ~~~~lli1:fy~'!~to11eor twoparagraims·(gjstof themformatfon)
mthe.Generiil Diaey.
XXX XXX XXX
l)ftlr~~iiiftiilll~if;f$~~i"l:~;~.~~~~,~ir~•~~rst
~~ill~·.~~~J~.~~•i>u',,¥-l)tdiminary·fmimry,•. if
req1tjted;.i.t1temfm:matimi w.illlie regjstemi!S•·FIR.
XXX XXX XXX
12~1~ij-h11~ 1111e~!!f1JIJ)' dt#tlt.tt.regii,Af~.oncif JJW,i!t ~orr

amJ.also ~h~;it ist,ct~e ~~~.•in:~~ FIR:h911Jfhy giyi~1a.1111~e
at11lllltl.·11~~to~~~.~e·~~~c;ttr3,f~WJ'!t;ac~~d~v~
rl.lgis~eyeti•JlW..l).Y<tft~ . s~o~~lic~~·:. ~•.·!~;~ •1).Y•t!re 1
coll!Jli!tentcourt towllich ¢0llies of each FIR.are required to be sent.

1
XXX XXX XXX
97: Tlte Cod~cQnte!llJ)l~tesrwo kinds ofmns : the dlll~· signed FlR\Jlld~

S~att;~~~f1z:~irb:rzth.~•?nf()nn~~~•t()·the·offi.c-er:IC/1'~e,t'll~d ~t;t~rp<J~C:
Statioµ:,Tlte sec()ndl<,ing ()fEIJl ·CCJll!cl11le. wliicli.i§registert?d. ~y th~•.·pe1lice
itself Cln anyinfonn11ti?n reteived orothertllan.• by way of anmform;int
[Sei:tion.157(1)} ~ndev-e11fhisillformationJ1as.t(} b~dulyrecorde~and·the
copy sholild be sent to the Magistrate forthwith. The registration of FIR
25
either on the basis of the info:m,ation "111lshed b$ the informant
11n~~.~ef:ti.011. 1lit(1~ of.die .c::otk:?r;?tli~~~e ll1t~~rset;ti?n 1~7(~) ~f
tlte Cod~.is.··obligatoey. The· obligation. •to.register. Fm . 1tru1 .inherent
advantages:
97'J.. (g)lt is:thefitst· step -to "acc:ess:tojm;tice"fora .w.ctim.
~1-~-C#IJtu~~o!~~ . tl!e ' .1#1!' pt. t~'V' was~1.15h,/~ tql!' o.~nart pei:s9n
q~gs:fortlrthe commission ofa cogmzable cri!lle in tlteJmowledge of the
State.
~7~a1(c} 1tialso, facilitates- swifFinve~~anoh, llil~_.·••s9meti1I1es ev~n

Pf~e11tion of.the crime..I).):. both c:ases, it omy effecroates the iegime of
law,
97;4;@It~··.to l\\$111ani~in·~rimmlJJ,'.~;ilid··tl!SSefiS
i1n;idfnts llf ·"aot:l!datt!il"FIRorifelitieratelyilefayettFnv•
(emphasis supplied)
Ram Chander v. State of Haryana, (1981) 3 sec 191,
"3 .... The court, the prosecution and the defence must work as a team
whose goal is justice, a team whose captain is the judge. The Judge,
'like the conductor of a choir, must, by force of personality, induce his
team to work in harmony; subdue the raucous, encourage the timid,
conspire with the young, flatter and (sic the) old'."
Justice 0. Chinnappa Reddy

Section 165 of the-Evidente Act
"t~~• \f11~ge'sp~w~rt41>~tqn!!Sµo~.or1Jrderproiltktiott .. •. ·TheJudg(!
lllf)!; rm·o~ett!!1.~~~9"~·.0,~;to o~t.Jjn pro,p1!rPf0,(1f o,f (el~/!llt fllcts, .• ~~k
illlJ, w1esti(]~ ~(! ~l,~!l~/.~..~. f(]fl!lr a~illly-~e,· ?f illlt~lli~~~•orQf the
parti~, ll~01ttilll~Ja~t~l~illlt· otii<f!!leyilllt;illtd matorder th\! produ~on
of.illly ~(1CUW¢ntor,~~~ ~~d!l!l~tlter thrJlllflies.-npr.theira~e~ts sh/lll.l:>e
entitl!~~o;tnill(!l illt}\O,~J!~~OllJ9 all)T_strs,. Q!IE!~tio11.or.Ordl!r, •.n.Qrt\Yitli.Qut
fl!!! .Jeav~ •o,f tl!e G?ll.t'f, to, ~O~"/!xamine any wititess upon ·any· answer
give!l inJeplyto.any.si.icb questi~n:
Provide:d._thaffl!eju~gtllentI11ust•be.)>ased uponfacts·declaredby.thisAct
.tohe.relevantrandduly.prov.ed;
Provided aJioJl!at ~ se~o,nshaUnot auth.orizeil!lyJudg!!Jo•.compel any
witness to· answer any. qu11stipn, .()F to procluce any do.~lllneµt •"1hkl! such
witness would be entitled to refuse to answer or produce under sections
26
1~1 t~l31rboth inclusive, •. if . the •que~~n.were askedor.the d~tument
.l(E!t!7api/dlClr~Y t1.1!~~!~e.paw;.,qt~JJ,M,~t1~cl~e\~~k. ~Y41;1~~~<1)1
~Itich: it\Vl:iufdjJ:iefivRrqp~tfof.~. ~tlIE?l:fli?i'$1:in to as!{ unclerse(:IIClnt<t.8
or\f4~; ~or~~ h!?:dispense ~~. Pi-pnarY evidencE? of any document,
except in. the cases hereinbeforeexcepted."
29. Sectlon l65 ·or the Evidence Act··speaks of the power· of the· court to put
questions ayd i:Jrcle1(protlli~tion•o(dg~Ir1eyts.inJh!cl cllwseqf ·~c1f....This i§ a
generalancloinnibus ·•power gl:ve11 tt.rthe ·.court when in search: ofthetnith.
sucli lt powerisi&fie'. exetdsecl. agilittstanjw1niess.betdre.•it,llqthin aei-M
as well c1s a criminal· case. The. objectis to discover adequate proof of a
releVant fattllltd1therefote;•• fi:lr.ffiiitpurpose, ilieJfo:lg~·ts·•~utho~ised and
empowered to ask any question of his choke. When such a t,o\\iet is
exerc:ii.ed by. th~ tCJurt,· .fhete. is/no cd:rrespqiidilig•.·ngltt that.can be.eifericled
,r
to party to Cl"oss~e,<:atnme any Witness•on•• an answer given in rer,ly to a
question put f()t-th by •it, except with its leave. ~mpha.sizing upon?the
importa1u;:e of.Sec:µori 165 of tlie•. E.viderice'.Act, SifJames Stephen while
preseriting·the•••repi:lttof.tl!e•.$elect·com1I1ittee,•at.the.µIr1e·•.Qf•·passing•of·.ffie
Evident:~ Acti:l~~efy~~.
"~t J$.~J:i~gI~e,lY:?1¢ce~ fl;~t lll~j~dg~. ?~~ul~ rtl:it•.~111Y: h~, ,hilt is put
b¢torelntti•~y·p~~r,s~b~~tli~th~<Quldas~ettain}l_y!tis,p~µiql1iri¢s·~~""
61~ Jil~~~~lll~y:~t,ll~tlfi.Clf.dE?ttCl\~~tliis;~t~ ~Clll¢n~y b¢>,rce~
fo~ ~~!Pt.io~(r mil~t1rs, ~h!Clt3fi)11()l~~Illselv¢i.r~~alltt!ltli~~il~ers
iI1.i~,¢r pllt~~y.l~;1ij•(l!spnt¢tliin1filiat1,s,altclif if .1,n.·p~~e~ tQ annjudg;t;s
wi~~~~~Qri.ty.,~0;,dp this.ctlratse1:tiQ~165,.whic:h lia$ibeeusomuch
o}lj~,d ri'l,>ltas pe¢ll it~~f£
"A. j ~ er> 1W1gi11tra~in. :r,ulia fre.~tJa!i to .1,1emmn llutjes
whim m E.nlJli;md.wOllid b¢ l'~riorm¢~ b,y .!11lice•Offk¢roratt11r~s.
He has to sift out tlte truth for himself as well as he can, and with little ..
._
27
assistanceof a~rof~ssional ld11d •. Se~on ~65 is ipten~ed ~oarinthe
jn~IC~ ~th:tli,: lllOSt exte~~ l!!,l~l!Fl1!158ible f1>r,.fl:l~. ~s~ of ~11g
~Lfl:l~;triitl,t. ;'.l:ff~ #'ft!ct ?f tl:!f,·~~6:~. istllat•.in!lfd~ toTget•fo'llie
b?@!!W ii$ ti:!!,!, !llj!tter ,~m
enqmreinto. eveey fact whatever."
tlJ!,!,·. cpnnt he wiltbei11Jh'f ta •look at• and
(elllphasis supplied)
30. Ram Cltanderv. Sta.te of.HlU'Yana,.(1981) 3 Sec 191,
2. The adversary system of trial being what it is. there is an

unfortunate tendency for a judge presiding over a trial to assume the
role of a referee or an umpire and to allow the trial to develop into a
contest between the prosecution and the defence with the inevitable
distortions flowing from combative and competitive elements entering
the trial procedure. If a criminal court is to be an effective instrument
in dispensing justice, the presiding judge must cease to be a spectator
and a mere recording machine. He must become a participant in the
trial by evincing intelligent active interest by putting questions to
witnesses in order to ascertain the truth. As one of us had occasion to
say in the past:
28
Every criminal trial is a voyage of discovery in which truth is the
quest. It is the duty of a presiding Judge to explore every avenue
open to him in order to discover the truth and to advance the
cause of justice. For that purpose he is expressly invested by
Section 165 of the Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so wide that he
may. ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure enables the
court to send for the police-diaries in a case and use them to aid it
in the trial. The record of the proceedings of the Committing
Magistrate may also be perused by the Sessions Judge to further
aid him in the trial. [Sessions Judge, Ne/lore v. Intha Ramona Reddy
!LR 1972 AP 683 : 1972 Cri LJ 1485] '
3. With such wide powers, the court must actively participate in the
trial to elicit the truth and to protect the weak and the innocent. It
must, of course, not assume the role of a prosecutor in putting
questions. The functions of the counsel, particularly those of the Public
Prosecutor, are not to be usurped by the judge, by descending into the
arena, as it were. Any questions put by the judge must be so as not to
frighten, coerce, confuse or intimidate the witnesses. The danger inherent
in a judge adopting a much too stem an attitude towards witnesses has
been explained by Lord Justice Birkett:
People accustomed to the procedure of the court are likely to be

overawed or frightened, or confused, or distressed when under the
ordeal of prolonged questioning from the presiding judge. Moreover,
when the questioning takes on a sarcastic or ironic tone as it is apt to
do, or when it takes on a hostile note as is sometimes almost
inevitable, the danger is not only that witnesses will be unable to
present the evidence as they may wish, but the parties may begin to
think, quite wrongly it may be, that the judge is not holding the
scales of justice quite eventually. [ Extracted by Lord Denning in
supra f.n. 21
In Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2

All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed:
29
The Judge's part in all this is to hearken to the evidence, only himself
asking questions of witnesses when it is necessary to clear up any
point that has been overlooked or left obscure; to see that the
advocates behave themselves seemly and keep to the rules laid down
by law; to exclude irrelevancies and discourage repetition; to make
sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end to
make up his mind where the truth lies. If he goes beyond this, he
drops the mantle of the Judge and assumes the role of an advocate;
and the change does not become him well.
·~~.cin.•~!~f!~t~~~~~#k~•!i!mif~ 11~~'"'1!ific'.e,
;t:~~,)!~t ~~~ ~;~hg,s,~~;'l!g;J~d~. 1i~t?!tlt~ ¢!>,~WI~!>,f 11
¢~~(~-0~,!~~i',!'~~~~~-"'~WI~~ ~jea111Xt!'~J"iin
, ~ , s~tii¢r,i~s. em;om:ageilipclinjid,·cllnsl)kewiili the
yoong,; flatter and fslc the). ohl>:"
(emphasis supplied}
ONFACTS
31. We have given our consideration to the circumstances, motive, role of the
accused and the volition of the prosecution to bring home the guilt of the
appellant primarily in the form of: (a) Dying Declaration, (b) Eye witnesses,
(c) Recovery and (d) Alleged arrest of the appellant nearer to the scene of
the offence.
32.The presence of PW-1 before PW-5 is extremely doubtful. His presence was
not spoken to at all by PW-5. The evidence of PW-1 is quite unnatural as he
30
has neither spoken about the motive in his statement recorded under Section
161 of CrPC, nor about the so-called dying declaration which was not even
witnessed by PW-5. PW-5 has clearly stated that the deceased was in a very
serious condition, blood was oozing out and, therefore, he could not give
adequate treatment. The deceased was immediately referred to the second
hospital. There was no necessity for PW-1 to dictate the complaint to one
Mr. Inder Singh who curiously has not been examined by the prosecution.
In any case, there was no need for PW-11 to wait for PW-1 to come to him
for registration of FIR, which he was mandated to do so, as soon as he
received the report from the hospital. The testimony of PW-1 is also
contradictory to PW-3 and PW-8.

33. On the similar line, we do not wish to rely upon the evidence of PW-2 and
PW-3. PW-2 admittedly was not examined by PW-11 for over 2 weeks, for
which no explanation is forthcoming. This witness also states that he was
not a friend of the deceased and, therefore, his presence at the place of
occurrence creates a serious doubt as to how he happened to accompany the
deceased to the picnic spot. PW-3, though accompanied the deceased, was
not present thereafter, as deposed by PW-5 and did not admit the deceased to
the second hospital as deposed by PW-8. On the contrary, the evidence of
PW-3 is that it is PW-1 and himself who admitted the deceased.
Furthermore, even his presence thereafter was not noticed by PW-5.

31
34.Though we rely upon the evidence of PW-5 to a certain extent, the
emergency medical register was not completely filled up by him. Nobody
knows the reason as to why he partially filled up the register and the
remaining part was filled by Dr. B.V. Sharma, who was not examined by the
prosecution. By placing reliance upon his testimony partly, we would only
come to the conclusion that his evidence goes against the prosecution
version on two counts, namely, the presence of any other witness and the
condition of the deceased.

35.The prosecution has not chosen to examine the driver of the vehicle i.e the
tempo in which the deceased was taken to the hospital. Even PW-5 has
stated that the blood was oozing out from the body of the deceased. This is
another contradiction in the statement of PW-2 and PW-3 in this regard.
PW-8 in his evidence has stated that the deceased was brought by another
brother of the deceased. Even this witness has not been examined for the
reason known to the prosecution.

36. PW-9 is an important witness being a police officer hailing from a different
jurisdiction. It is very curious to know that he was the author of the inquest
report after the investigation was taken up by PW-11. Despite this being very
strange, no plausible explanation was forthcoming from him. Though PW-11
was trying to say that at times due to the instructions from the higher
officers, it is done so, when an offence is committed an Investigating Officer
32
is duty bound to take up the investigation and complete it. After taking up
the investigation he thereafter cannot delegate it, except for justifiable
reasons. This lends credence to the case projected by the defence that the
interpolations and missing pages in the case diary clearly indicate that the
FIR was ante-dated. Perhaps that is the reason why the FIR reached the
jurisdictional magistrate belatedly and also the examination of the witnesses
including PW-2 under section 161 of CrPC was done days after the
occurrence.
37.PW-6 and PW-7 are not natural witnesses. It is totally unbelievable for PW-6
to reach the place of occurrence out of inquisitiveness. There is no need for
him to be in that very place. The arrest of the accused at the instance of PW-
7 is yet another instance of the prosecution trying to make out a case. It is
incomprehensible that the appellant would be present at the place of the
occurrence when he is attempting to flee. Similar logic goes to the recovery
of the knife. If PW-11 is stated to have made an inspection and drawn the
sketch, he would have very well found the knife at a nearby place. It is
nobody's case that it was hidden, on the contrary, it was found in an open
place.
38.From the aforesaid discussion, we have no doubt that the date, time and
place of occurrence could have been different. The trial court strangely
placed the onus on the appellant even with respect to the corrections made in
33
the case diary along with the missing pages. On perusal of the case diary,
we find that at several places such corrections have been made, while some
pages were even missing. A clear attempt is made to correct the dates. Such
corrections actually were put against the appellant while they indeed helped
the case of the prosecution. The finding of the trial court in this regard is
neither logical nor reasonable. Even on the question of motive, there is
absolutely no material as witnesses did not speak about the same in their
statements recorded under Section 161 of CrPC. Mere recovery of a
motorcycle per se will not prove the case of the prosecution especially when
it has not been proved as to how it was recovered. The evidence of PW-13
clearly shows that no date, time and proper recording have been made in the
case diary. When the trial court perused the case diary for the purpose of
contradicting the statement of a police officer, it ought not to have fixed the
onus on the appellant. It has failed to discharge its duty enshrined under
Section 172(3) of CrPC read with Section 145 or Section 161, as the case
may be, of the Evidence Act. To be noted, it was brought on a request made
by the appellant and the court was using it for the purpose of contradiction.
39. On a perusal of the impugned judgment and that of the trial court in
convicting the appellant, we find that the aspects discussed by us have not
been looked into in a proper perspective. The appellant has certainly made
out a case for acquittal. Accordingly, the conviction rendered by the High
34
Court, confirming that of the trial court stands set aside. The appellant is
acquitted of all the charges.

40. The appeal is allowed. The appellant was granted bail vide Order of tbis
Court dated 06.04.2015. Hence, bail bonds stand discharged .
................................ 1.
(M. M. SUNDRESH)
............................... J.
(S.V.N. BHATII )
NEW DELHI;
FEBRUARY 26, 2024
35

CRM 176 of 2024-Sarvadaman Singh Oberoi Next Friend v. Commisioner of Police

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CRM 176 of 2024-Sarvadaman Singh Oberoi Next Friend v. Commisioner of Police

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CRM-176-2024 HRGR01-002872-2024

Sarvadaman Singh Oberoi Vs. Commission of Police & others.

Present: Sh. Sarvdaman Singh, Reporter/next friend of Victim in

Criminal Misc.Appeal received by way of assignment. It

be checked and registered. Now, the case is adjourned to 12.04.2024

for consideration on the point of maintainability.

Roopam (UID No.HR-0146)

ORIGINAL REPORT NO._ _ _OF 2024

(FOR APPOINTMENT OF INDEPENDENT PROSECUTOR TO PREPA

IN THE MATTER OF:

2. Union of India, through The Cabinet Secretary, Government of

3. State of Haryana through its Chief Secretary, 4th Floor, Haryana

VICTIM REPORT OF FACTS BY NEXT FRIEND UNDER SECT

appointment of independent prosecutor to prepare and present case before

Special Judge Human Rights, Gurugram for prosecution of unknown persons

in accordance with international law - jus cogens, in the custodial death of an

undertrial as recorder in P.S. Bhondsi DDLE No. 10 dt 12.01.2010, in which

become a festering sore in the brilliant human rights record of India.

2. Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on

Civil and Political Rights, 1966, state, inter alia:

ICCPR 2.3 Each State Party to the present Covenant undertakes:

has been committed by persons acting in an official capacity;

thereto determined by competent judicial, administrative or legislative

authorities, or by any other competent authority provided for by the legal

system of the State, and to develop the possibilities of judicial remedy;

fundamental human rights recognized or existing in any State Party to the

present Covenant pursuant to law, conventions, regulations or custom on the

recognizes them to a lesser extent.

shall be subjected to arbitrary arrest or detention. No one shall be deprived of

are established by law.

ICCPR 9.3 Anyone arrested or detained on a criminal charge shall be

brought promptly before a judge or other officer authorized by law to exercise

judicial power and shall be entitled to trial within a reasonable time or to

detained in custody, but release may be subject to guarantees to appear for

for execution of the judgement.

ICCPR 9.4 Anyone who is deprived of his liberty by arrest or detention

if the detention is not lawful.

shall have an enforceable right to compensation.

ICCPR 10.2 (a) Accused persons shall, save in exceptional circumstances,

be segregated from convicted persons and shall be subject to separate

treatment appropriate to their status as unconvicted persons;

brought as speedily as possible for adjudication.

Juvenile offenders shall be segregated from adults and be accorded treatment

appropriate to their age and legal status.

ICCPR 11 No one shall be imprisoned merely on the ground of inability

to fulfil a contractual obligation.

obligations in a suit at law, everyone shall be entitled to a fair and public

hearing by a competent, independent and impartial tribunal established by law.

of morals, public order (ordre public) or national security in a democratic

to the extent strictly necessary in the opinion of the court in special

judgement rendered in a criminal case or in a suit at law shall be made public

except where the interest of juvenile persons otherwise requires or the

proceedings concern matrimonial disputes or the guardianship of children.

right to be presumed innocent until proved guilty according to law.

ICCPR 14.3 In the determination of any criminal charge against him,

everyone shall be entitled to the following minimum guarantees, in full

ICCPR 14.3 (a) To be informed promptly and in detail in a language which