ORDER
A.K. Patnaik, C.J.
1. This is an unfortunate case in which the petitioner's son suffered burn injuries while in police custody and thereafter died in the hospital. The petitioner has prayed for quashing the acceptance of the final report by the Chief Judicial Magistrate, Morena, for investigation by the Central Bureau of Investigation and for compensation of Rs. Ten Lakhs from the State Government for the death of his son.
2. The facts briefly are that on 22-8-1996 the petitioner's son Devendra Singh while moving at the Railway Station, Morena, was taken into custody by the Police for inquiry and brought to the City Kotwali, Morena, where he suffered burn injuries. He was then moved to the Gwalior Jaya Arogya Medical College Hospital, where he died on 24-8-1996. The District Magistrate/Collector, Morena, ordered a magisterial inquiry and the Sub Divisional Magistrate, Morena, made the inquiry and submitted a report, which was accepted by the State Government. Crime No. 547/96 under Section 309 of the Indian Penal Code was registered by the Police and Crime No. 548/96 under Section 307/34 of the Indian Penal Code was registered on a written complaint of the petitioner. After Devendra Singh succumbed to his burn injuries in the hospital, Crime No. 548/96 was converted to an offence of murder. Both the crimes were handed over to the CID on 24-8-1996 for investigation. The investigation was completed on 26-5-1997 and a report was submitted to the higher authorities. A final report thereafter was submitted before the Chief Judicial Magistrate, Morena, on 31-3-1999 recommending the closure of the case registered at Crime No. 548/96 and the Chief Judicial Magistrate, Morena, accepted the final report on 14-5-1999.
3. Mr. Ajay Mishra, learned Senior Counsel appearing for the petitioner, submitted that under Section 173(2)(ii) of the Code of Criminal Procedure (for short the 'Cr.PC'), the petitioner being the informant was entitled to a copy of the final report. He further submitted that as per the law laid down by the Supreme Court in Bhagwant Singh v. Commissioner of Police and Anr. AIR 1985 SC 1285, the petitioner was also entitled to an opportunity of hearing at the time of consideration of the final report by the Magistrate. He cited the judgment of Supreme Court of India Public Service Commission v. S. Papaiah and Ors. : 1997CriLJ4636 , the Supreme Court while following the aforesaid decision Bhagwant Singh (supra) held that omissions on the part of the Magistrate to issue notice to the informant and to afford him an opportunity of being heard at the time of consideration of the final report, vitiates the order accepting the closure report. He submitted that a copy of the final report was not furnished to the petitioner and no opportunity of hearing was granted to the petitioner at the time of consideration of the final report and, therefore, the acceptance of the final report by the Chief Judicial Magistrate, Morena, was illegal.
4. Mr. Mishra next submitted that an investigation in this case has not been fair. He submitted that the dying declaration of Devendra singh would establish that the respondent Nos. 5, 6, 8 and 9 had beaten him up in presence of respondent Nos. 4 and 7 and had demanded Rs. 10,000/- and when Devendra singh refused to fulfil their demands, the respondent No. 8 poured petrol on his body on the instigation of respondent Nos. 4, 5 and 9 and set him on fire. He further submitted that Mr. R.K. Kothari, DSP (P), CID Investigation, who has submitted the report on the investigation annexed to the return of respondent Nos. 1 and 1-A as Annexure R-4, has commented upon the credit worthiness of the witnesses whose statements were recorded during investigation and who supported the FIR lodged by the petitioner and has taken a view that Devendra Singh has committed suicide and recommended that a final report be submitted in Crime No. 548/1996 under Sections 302, 307 and 34 of IPC and Crime No. 547/1996 under Section 309 of IPC should be finally closed. He submitted that it is for the Court and not for the investigating agency to analyse the evidence collected during investigation and the DSP (P) CID Investigation should not have acted like the Court. He submitted that the report of investigation was biased and should not have been accepted by the Chief Judicial Magistrate, Morena and instead a fresh investigation should be ordered by Central Bureau of Investigation against the Police Officials, whose names have been mentioned in the FIR and in the dying declaration. He cited the decision in Kashmeri Devi v. Delhi Administration and Anr. AIR 1988 SC 1323, in which the Supreme Court after having found prima facie that the Police has acted in a partisan manner to shield the real culprits, held that in the interest of justice, it was necessary to get a fresh investigation made through an independent authority so that truth may be known. He also relied on the decision of the Supreme Court in Ajab Singh and Anr. v. State of Uttar Pradesh and Ors. JT 2000 (3) SC 165, in which the Supreme Court found that the story given out by the Police with regard to death of the victim in that case appeared to be a concocted story and there were desperate attempts to avoid responsibility for acts committed while the victim was in judicial custody and directed that the CBI should conduct an independent investigation afresh.
5. Mr. Mishra further submitted that admittedly, the petitioner's son Devendra Singh died while he was in police custody and, therefore, the Court should direct the State Government to pay compensation for his death. He cited the judgments of the Supreme Court in Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. : 1993CriLJ2899 and Ajab Singh (supra), in which compensation of Rs. 1,50,000/- and Rs. 5,00,000/- respectfully were awarded by the Court in favour of the parents of the person who died in police custody.
6. Mr. T.S. Ruprah, learned Additional Advocate General appearing for the respondents 1 and 1-A, very fairly submitted that notice of the final report should have been given to the petitioner, who was the informant, in accordance with Section 173(2)(ii) of the Code of Criminal Procedure and since the notice of the final report has not been given to the petitioner, acceptance of the final report by the Chief Judicial Magistrate, Morena, was illegal. He submitted that the Court can quash the acceptance of the final report and direct the Chief Judicial Magistrate, Morena, to consider the final report and grant an opportunity of hearing to the petitioner at the time of such consideration of the final report. He further submitted that while considering the final report, the Chief Judicial Magistrate, Morena, can look into the evidence collected during investigation and decide whether the offences have been made out as alleged in the FIR. On the claim for compensation, he submitted that it is only if the police is found guilty of having committed any offence that such compensation can be awarded in favour of the petitioner but at this stage, it can not be held that the police was guilty of any offence.
7. Mr. Mrigendra Singh, learned Counsel appearing for the respondents No. 2 to 9, submitted that the allegations made by the petitioners in the writ petition against the respondents are all false and that it is a clear case of suicide by Devendra singh as found in the report of the Sub Divisional Magistrate, Morena and in the report of investigation by the CID (Annexure R-4). He further submitted that the respondents No. 2 to 9 have been unnecessarily impleaded as parties in this writ petition.
8. We have carefully gone through the report in Crime No. 547/1996 and Crime No. 548/1996 submitted Mr. R.K. Kothari, DSP (P), CID Investigation, Bhopal, on 28-11-1997, a copy of which is annexed by the respondents No. 1 and 1-A with the return as Annexure R-4 and we find from the said report that as per the FIR lodged by the petitioner, which was registered as Crime No, 548/1996, on 22-8-1996 Assistant Sub Inspector D.S. Yadav, Sub Inspector Shiv Singh and Head Constable Taran Singh poured inflammable liquid over the body of deceased and thereafter set Devendra Singh on fire, and Devendra Singh sustained serious burn injuries and was shifted to the hospital where he died on 24-8-1996. In support of this case in the FIR, the petitioner, his brother Gar Singh, cousin Nar Singh, wife Savitri Bai, Gopal Prasad Dandotiya, Ram Akhtyar Singh and Mahesh Khatik have given statements during investigation. It further appears from the said report dated 28-11-1997 of Mr. R.K. Kothari, DSP (P), CID Investigation, that the deceased himself had given a dying declaration stating that ASI D.S. Yadav and Head Constable Taran Singh poured petrol on him and set him on fire and the citizens of the town standing there extinguished the fire. But according to Mr. R.K. Kothari, DSP (P), CID Investigation, there were discrepancies and contradictions in the statements of the aforesaid witnesses and ASI D.S. Yadav had been dismissed from service a month before the incident. It further appears from the said report that Mr. Kothari has recorded the statements of witnesses namely, SHO, K.S. Jodon, ASI Rajendra Pandey, Head Constable Shashikant Upadhyaya, Head Constable Baburam Sharma, Constable No. 1017 Preetam Singh, Constable Rajendra Singh, Constable Ganga Prasad and Constable Shiv Balak to the effect that Devendra Singh was brought to the City Kotwali, Morena by Head Constable Satyanarayan Sharma of GRP Chouki, Morena and Constable Raghuveer Prasad on 22-8-1996 at 12.30 hours as he was found in suspicious condition and a cheque of Rs. 40,000/- and some cash were found in his possession. On instructions of Town Inspector, Kotwali, ASI D.S. Yadav and Head Constable Taran Singh, an inquiry was being conducted when Devendra Singh went inside the Chowki on the pretext of urination, entered the adjoining room (Malkhana), which was not locked and poured inflammable liquid on himself and set himself on fire. Mr. R.K. Kothari, DSP (P), CID Investigation, has accepted the version of the Police that this was a case of suicide and has recommended that the final report be submitted and the case be finally closed.
9. After the case was heard by us on 7-12-2005, we reserved the matter for orders and called for the records from the Court of the Chief Judicial Magistrate, Morena for the purpose of perusing the order passed by the Chief Judicial Magistrate, Morena, and in pursuance of the said order dated 7-12-2005 passed by us, the records have been sent by the Chief Judicial Magistrate, Morena, but we do not find any order passed in the order-sheet accepting the final report and there is only an endorsement on 14-5-1999 on the final report accepting the final report dated 31-3-1999.
10. Unfortunately, the Chief Judicial Magistrate, Morena appears to have mechanically accepted the final report oblivious of his statutory duty under Section 173 of the Code of Criminal Procedure. In Bhagwant Singh's case (supra), the Supreme Court after examining at length the provisions of Section 173 of the Code of Criminal Procedure, 1973, has held :--
The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under Sub-section (3) of Section 156.
In the present case, the Chief Judicial Magistrate, Morena, has mechanically accepted the report and dropped the proceedings and the records do not indicate that he has at all applied his mind to evidence that was collected during investigation for or against the case as stated in the FIR.
11. The aforesaid judgment of the Supreme Court in Bhagwant Singh (supra) further lays down the law that when the Magistrate is not inclined to take cognizance of offence and issue process, the informant must be given a notice to be heard so that he can make his submissions to persuade the Magistrate to take cognizance of offence and issue process. In fact, Section 173(2)(ii) of the Cr.PC itself provides that the Officer shall also communicate the action taken by him to the person, if any, by whom the information for committing offence, was first given, in such manner as may be prescribed by the State Government. In the present case, no communication was made to the petitioner about submission of the final report either by Police or by the Magistrate and no opportunity whatsoever has been given to the petitioner of being heard before final report was accepted. In S. Papaiah's case (supra), the Supreme Court relying on its decision in Bhagwant Singh's case (supra), quashed the order of the Magistrate accepting the final report on the ground that the informant had not been given such opportunity of hearing at the time of consideration of final report. For the aforesaid reasons, we quash the acceptance of the final report by the Chief Judicial Magistrate, Morena, in this case and direct him to apply his mind to the material collected in course of investigation and if he is of the tentative view that the final report is to be accepted, he will issue a notice to the petitioner giving him an opportunity of hearing at the time of consideration of final report.
12. As has been held by the Supreme Court in Bhagwant Singh's case (supra), where the opinion of the Police Officer is that no offence appears to have been committed, the Magistrate also has the option to direct further investigation to be made by the Police under Sub-section (3) of Section 156. In Kashmeri Devi's (supra), the Supreme Court after coming to the conclusion that prima facie the police had acted in a partisan manner to shield the real culprits and that the investigation had not been done in a proper and objective manner held that n the interest of justice, it was necessary to get a fresh investigation made through an independent authority so that truth may be known. In Ajab Singh's case (supra), the Supreme Court found that a concocted story had been set out in the affidavits of the respondents and therefore directed investigation to be carried out by the CBI. But, in the present case, we are not in a position to form a definite opinion at this stage as to whether the investigation was biased or was objective. But we have quashed the acceptance of the final report and remitted the matter back to the Chief Judicial Magistrate, Morena, to consider the said final report and if the Chief Judicial Magistrate, Morena, after applying his mind to the materials collected in the course of investigation finds that further investigation is necessary, he may also direct further investigation to be made by the Police under Sub-section (3) of Section 156 of the Cr.PC.
13. The petitioner has contended before us that the State Police can not be entrusted with the investigation in this case, as the investigation already conducted by the State Police is biased. As discussed above, the statements of all the witnesses who have been examined in course of investigation, have been recorded in the course of investigation. We have already directed the Magistrate to apply his own mind to the said statements and other materials collected in the course of investigation and decide whether to accept the final report or to disagree with the final report and take cognizance of offence and issue process or direct for investigation. In case, he finds that investigation already done by the State Police is biased and not objective or fair, he may direct further investigation by the CBI instead of by the Local Police.
14. Coming to the claim of compensation of the petitioner, admittedly the deceased died on account of fire burns that he suffered while in police custody. Once a person is taken into custody of the Police, it is responsibility of the Police to ensure safety of his life. While the case of the petitioner is that the Police personnel at the police station poured inflammable liquid on the deceased and set him on fire the case as found out in the magisterial inquiry and in the final report of the police is that the deceased entered into a room (Malkhana), which was open, poured petrol on himself and set himself in flames. Even accepting this finding in the magisterial inquiry and in the final report, there has been negligence on the part of the police in keeping the Malkhana open particularly when the inflammable materials were stored there and is not stopping the deceased from entering into the Malkhana and getting the inflammable liquid. For this gross negligence, the petitioner lost his son and he is entitled to compensation from the State Government. In Nilabati Behera alias Lalita Behera's case (supra), the Supreme Court directed the State of Orissa to pay sum of Rs. 1,50,000/- to the petitioner for the loss of his son and Rs. 10,000/-by way of costs to the Supreme Court Legal Aid Committee. In Ajab Singh 's case (supra), the Supreme Court after having found that the deceased in that case had left behind his wife and three children aged 7, 4 and 2 years, directed the State of Uttar Pradesh to pay compensation of Rs. Five Lakhs to the petitioner. In this case, there is no material to show that the deceased was married and had children. But the death of the deceased was a loss to the petitioner. The petitioner has been pursuing this litigation since 1997. Considering all aspects of the matter, we direct that the State of Madhya Pradesh will pay compensation of Rs. Three Lakhs inclusive of costs of this litigation to the petitioner within two months from the date of receipt of this order. This compensation is awarded for violation of the right to life guaranteed under Article 21 of the Constitution of India and is without prejudice to the right of the petitioner to claim damages under torts in a Civil Court.
15. With the aforesaid directions, the writ petition stands disposed of.