By Vedant Choudhary
Custodial violence is an unfortunate reality in Indian prisons. Although the Supreme Court has issued a number of guidelines to prevent the same, the ill continues to exist. On July 21, a division bench of the Supreme Court gave its judgment in Khursheed Ahmad Chohan v Union Territory of Jammu Kashmir. The appellant in this case, a victim of custodial torture sought remedies to ensure fair investigation into the case, which was granted by the court. This judgment is important as it is one of the few judgments on the safeguard of the remedial measures of a victim after custodial torture.
The facts of this case in brief are thus; The appellant is a police constable in the Jammu Kashmir Police. The appellant alleges he has suffered severe custodial torture at the hands of his superior officials for six days. On the sixth day he was taken to the hospital, and an FIR was lodged making it appear he had attempted to commit suicide. Upon learning about the appellants condition, his wife approached the Station House Officer (SHO), the Senior Superintendent of Police, and later the Deputy Inspector General of Police to register an FIR. However, her request was not heard.
She then filed two petitions before the High Court of Jammu & Kashmir. The first petition, sought the quashing of the FIR alleging attempt to commit suicide, and the second, seeking either a direction of the High Court mandating the SHO to register an FIR, or if the High Court found it appropriate, to transfer the case to the Central Bureau of Investigation to ensure fair and impartial investigation.
The High Court found it fit to not quash the FIR alleging attempt to suicide, and to not transfer the case to CBI. It however directed the SSP to conduct a preliminary enquiry into the allegations, and register an FIR if found fit. Aggrieved, the wife filed a Special Leave Petition before the Supreme Court.
The Supreme Court has directed the mandatory registration of FIR. While doing so it has referred to the landmark judgment in Lalita Kumari v State of UP (2013), where it was held that wherever the facts disclosed to the police indicate the commission of a cognizable offence, it is mandatory for the police to register an FIR. The Supreme Court struck down the order of the High Court directing a preliminary enquiry. In Lalita Kumari the court made specific exceptions of cases where preliminary enquiry was prohibited. No preliminary enquiry can be conducted by the police where the informant alleges an offence against public servants, or in cases of custodial torture.
The Supreme Court has ordered quashing of the FIR. For this it relied upon its own judgment in State of Haryana vs. Bhajan Lal (1992), where it was held that an FIR can be quashed if it (i) disclosed no offence, or (ii) on the face of it, the FIR appears to be motivated by vengeance.
The Supreme Court has also ordered that the case file be transferred to the CBI to ensure fair and impartial investigation. It noted that courts should be cautious in transferring cases to the CBI, ensuring not to overburden the agency. However if it is certain that a fair investigation cannot be carried out by the state police machinery, the case may be transferred to the CBI.
Why is this Judgment important?
It is beyond debate that we have not been able to completely root out custodial torture from Indian prisons. This comes even after the Supreme Court has issued several guidelines, and safeguards to address and prevent custodial violence, most notably in DK Basu v. Union of India. The present case is significant as it provides a comprehensive ruling on all remedial measures available to the victim after custodial torture.
One of the first challenges faced by a victim of custodial torture is the refusal of the police to register an FIR. It would be unrealistic to expect impartiality from the police in registering such complaints. The FIR would have to be registered either by the very officials responsible for the custodial violence, or their colleagues.
Hypothetically, even if an FIR is registered, it is unlikely that the investigation would be conducted fairly and impartially. The police officers conducting the investigation would either be the same accused in the offence, or their colleagues, making it therefore highly likely that the investigation could be tainted, witnesses could be threatened or evidence could be destroyed.
It is also highly likely that a false FIR is registered by the police to explain the injuries that the victim has suffered. It is crucial that such an FIR be quashed to prevent injustice.
In this judgment, the Court has directly addressed all three of these critical issues, which follow custodial torture, that is, non-registration of FIRs, lack of impartial investigations, and quashing of false FIRs, thus setting an important precedent on custodial torture.
(The writer is a Law Student at Symbiosis Law School Pune)