P. MAHALINGAMversusMONICA KUMAR & ANR.

               (2011] 13 (ADDL.) S.C.R. 571


                      P. MAHALINGAM                             A
                              v.
                MONICA KUMAR & ANR.
           Contempt Petition (Crl.) No. 7 of 2010
                           WITH
            Criminal Appeal No. 2323 of 2011                    B
                   DECEMBER 16, 2011
    [DALVEER BHANDARI AND A.K. PATNAIK, JJ.]

       Constitution of India, 1950 - Articles 32, 226 and 136 - C
 Writ Petition by appellants-medical students alleging
 harassment by Chairman of Educational Trust - Direction by
 Supreme Court to serve notice by way of Dasti upon t/1e SHO,
 Police Station - Appellants subjected to brutality in police
 station by Inspector and his subordinates when they went to D
 serve the notice - Complaint made to Senior Superintendent
of Police but not dealt with properly - Writ petition by the
appellants seeking CBI inquiry into the incident - Dismissed
by the High Court holding that since FIR was not registered,
the prayer for CBI inquiry at this stage could not be considered E
and directed the appellants to file an application u/s. 156(3)
Cr.P.C. - Appeal filed before Supreme Court - Direction by
Supreme Court to District and Sessions Judge to inquire into
the incident and he assigned the inquiry to Additional Chief
Judicial Magistrate who submitted the report - Held: Report F
of the Additional Chief Judicial Magistrate prima facie
establish acts and/or omissions of the various police
personnel which were committed when the appellants had
gone to the police station to serve the Dasti summons issued
by this Court and which amounted to misconduct of serious
nature - Thus, direction issued to respondent No. 1 to treat G
the said report as a preliminary report and initiate disciplinary
proceedings against the police personnel named in the
conclusions thereof, giving to the police personnel

                            571                                 H
    572    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A reasonable opportunity of being heard in respect of the
  charges and complete the disciplinary proceedings within one
  year - Impugned order of the High Court is set aside - In the
  contempt petition, direction issued to the Chairman of
  Educational Trust and another not to enter into the premises
B of the Medical College, its administrative block, its hospital,
  its hostel and the residence of the medical students.

          CRIMINAL ORIGINAL JURISDICTION : Contempt Petition
    (Crl.) No. 7 of 2010.
c                                   IN
    Criminal Appeal No. 2323 of 2011.

      From the Judgment & Order dated 05.12.2009 of the High
  Court of Judicature at Allahabad in Criminal Misc. Writ Petition
0 No. 23839 of 2009.
                                 WITH
    Crl. Appeal No. 2323 of 2011.

      K.K. Venugopal, P.N. Mishra, A.K. Ganguli, Shail K.
E Dwivedi, AAG, Prasaht Bhushan, Pranav Sachdeva, S.
  Chandra Shekhar, Pooja Dhar, Ashwarya Sinha, Manoj Kumar,
  Ramraghvendra, Alok Kumar, Amit Singh, Rajeev K. Dubey (for
  Kamalendra M!shra), C.D. Singh for the appearing parties.

          The Order of the Court was delivered by
F
                                ORDER
          A.K. PATNAIK, J.
G Criminal Appeal No. 2323 of 2011 (Arising out of Special
  Leave Petition (Crl.) No. 666 of 2010)
          1. Leave granted.

      2. This is an appeal by way of special leave under Article
H 136 of the Constitution against the order dated 05.12.2009 of
    P. MAHALINGAM v. MONICA KUMAR & ANR.                    573
               [A.K. PATNAIK, J.]
the Division Bench of the Allahabad High Court dismissing the      A
Criminal Misc. Writ Petition No.23839 of 2009 of the appellants.

      3. The relevant facts as stated in the Special Leave
Petition briefly are that the appellants studied M.B.B.S. course
in the Santosh Medical College at Ghaziabad in Uttar Pradesh 8
and respondent No.2 is the Chairman of the Maharaji
Educational Trust which has established the medical college.
The appellant No.1 filed Writ Petition No.33 of 2009 in this Court
under Article 32 of the Constitution complaining of harassment
by respondent No.2 and by the police and on 13.05.2009, this C
Court passed orders directing issue of notice in the writ petition.
On 22.05.2009, the Registrar of this Court directed that the
notice be served by way of dasti on the unserved respondents
in the writ petition. When the appellants went to serve the
respondent No. 4, who was then the SHO of Police Station
Sector 39, NOIDA, Gautam Budh Nagar, U.P., on 28.05.2009 D
at about 10.30 A.M., the respondent No.4 and his subordinates
started brutally assaulting them with lathis, shoes and fists and
caused numerous injuries on all parts of their bodies.
Thereafter, the appellants got themselves examined at Lok
Nayak Government Hospital, New Delhi, and an x-ray of the E
hand of appellant No.1 was also taken which disclosed a
fracture and thus her left hand was put in plaster. The appellants
made a written complaint to the Senior Superintendent of
Police, NOIDA, on 29.05.2009 but he refused to accept the
complaint.                                                          F

     4. The appellants then filed Criminal Misc. Petition
No.9226 of 2009 in Writ Petition (Criminal) No.33 of 2009
complaining of the aforesaid assault and on 07.07.2009, this
Court passed an order that the Criminal Misc. Petition be          G
placed along with the main matter and in the meanwhile
directed the appellants to approach the District Magistrate,
NOIDA, regarding the grievances. The appellants approached
the District Magistrate, NOIDA, but they were informed that he
was on vacation. The City Magistrate, however, called the          H
    574    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A appellants to his office and took the video recorded statements
  but did not do anything in the matter. On 20.07.2009, this Court
  dismissed the Writ Petition (Criminal) No.33 of 2009 and
  granted liberty to the appellants to approach the High Court
  under Article 226 of the Constitution, if so advised. Thereafter,
B the appellants filed Writ Petition (Criminal) No.23839 of 2009
  before the High Court praying inter a/ia for a CBI inquiry into
  the incident which took place on 28.05.2009 when the appellant
  had gone to serve dasti summons on respondent No.4. The
  High Court, however, held in the impugned order that in this
c case the FIR had not been registered and there was no
  question for considering any prayer for CBI inquiry at this stage
  and instead directed that the appellants may file an application
  under Section 156(3) of the Criminal Procedure Code, 1973
  (tor short 'the Cr.P.C.') and in case any such application is filed,
0 the  Magistrate may pass appropriate orders thereon. With the
  aforesaid observations, the High Court dismissed the writ
  petition.

       5. The respondent No.4 has filed an affidavit stating that
  the appellants were not assaulted in the police station on
E 28.05.2009 as alleged by the appellants. In the affidavit,
  however, the respondent No.4 has stated that on 28.05.2009
  when the appellant had gone to the Police Station to serve the
  dasti summons, it was noticed that they were video recording
  with a sting camera and this was objected to and articles were
F seized from them in the presence of three public witnesses and
  the appellants gave an apology later.

       6. The appellants have filed a rejoinder reiterating that they
  were assaulted on 28.05.2009 at 10.30 A.M. and they were
G detained in the Police Station of Section Sector 39, NOIDA,
  for 4 to 5 hours and during this period the appellants were
  repeatedly assaulted and abused and the appellant No.1 was
  molested by respondent No.4 and they were releasea only after
  the mother of the appellants called the Senior Superintendent
H
    P. MAHALINGAM v. MONICA KUMAR & ANR.                  575
               [A.K. PATNAIK, J.]
of Police of NOIDA, who thereafter called the respondent No.4    A
to release the appellants at about 4.00 P.M.

     7. After hearing learned counsel for the parties, we passed
orders on 11.05.2010 directing the Distric: and Sessions
Judge, Gautam Budh Nagar, U.P., to enquire into the incident
                                                                 8
of 28.05.2009 when the appellants had gone to serve the dasti
summons of this Court and pursuant to the aforesaid order
dated 11.05.2010, the District and Sessions Judge, Gautam
Budh Nagar, U.P., assigned the inquiry to the Additional Chief
Judicial Magistrate Ill of Gautam Budh Nagar, U.P., who after C
conducting the enquiry has submitted the report dated
16.11.2010. We have considered the objections to the report
and heard learned counsel for the parties. The conclusions in
the report dated 16.11.2010 of the Additional Chief Judicial
Magistrate Ill of Gautam Budh Nagar, U.P., are extracted
herein below:                                                    D

    "1. Ms. Monica Kumar and Shri Manish Kumar had gone
    to Sector 39 Police Station in NOIDA on 28.05.2009 for
    serving a dasti notice of Hon'ble Supreme Court upon Shri
    Anil Samania, Station House Officer, Sector 39 Police        E
    Station in NOIDA.

    2. Ms. Monica Kumar and Shri Manish Kumar were
    subjected to brutality in Sector 39 Police Station, ·NOIDA
    by Shri Anil Samania, Inspector, Shri J.K. Gangwar, Sub      F
    Inspector and few Constables.

    3. Tailored entries have been made on 28.05.2009 in the
    General Diary of the Police Station for cover up.

    4. The complaint in the matter was made with serious G
    allegations against Shri Anil Samania but the complaint
    was not dealt with properly and the matter was given a
    decent burial.

    5. The Sub-Inspector, In-Charge of the Complaint Cell in
                                                                 H
    576    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         the office of the Senior Superintendent of Police, Gautam
          Budh Nagar, Shri Rishi Pal Singh, failed in his duty to
          place the complaint before the higher authorities for proper
          action in the matter.

          6. The Superintendent of Police (Traffic), Gautam Budh
B
          Nagara, Shri Ajay Sahdav, failed in his supervisory duty
          in as much as without perusal of the accusations in the
          complaint and the action taken/required thereon, allowed
          entombment of the grievance in the complaint.
c         7. The Senior Superintendent of Police, Gautam Budh
          Sagar Shri Ashok Kumar Singh appears to have shut his
          eyes to what had happened in the Police Station on
          28.05.2009.

D         8. Involvement of Dr. P. Mahalingam in the incident on
          28.05.2009 could not be established. Thus, it cannot be
          said that the complainants w0re packed down at the will
          of the Chairman of Santosh Medical College, Ghaziabad,
          Shri P. Mahalingam."

E       8. Thus, the conclusions in the report dated 16.11.2010 of
  the Additional Chief Judicial Magistrate quoted above are that
  the appellants were subjected to brutality in Sector 39 Police
  Station, NOIDA, by lnspectorAnil Samania (Respondent No.4),
  Shri J.K. Gangwar, Sub-Inspector and few constables and
F tailored entries were made on 28.05.2009 in the General Diary
  of the Police Station for a cover up and when a complaint was
  made to the Senior Superintendent of Police, Gautam Budh
  Nagar, U.P., the Sub-Inspector, In-charge of the Complaint Cell
  Shri Rishipal Singh failed in his duty to place the complaint,
G before the higher authorities for proper action in fhe matter. The
  further conclusion in the report dated 16.11.2010 of the
  Additional Chief Judicial Magistrate is that the Superintendent
  of Police (Traffic), Gautam Budh Nagar, U.P., Ajay Sahdav,
  failed in his supervisory duty and allowed entombment of the
H grievance in the complaint and the Senior Superintendent of
    P. MAHALINGAM v. MONICA KUMAR & ANR.                    577
               [A.K. PATNAIK, J.]

Police, Gautam Budh Nagar, Ashok Kumar Singh appears to A
have shut his eyes to what had happened in the Police Station
on 28.05.2009. The conclusions in the report dated 16.11.2010
of the Additional Chief Judicial Magistrate prima facie establish
acts and/or omissions of the various police personnel which
were committed when the appellants had gone to the police B
station to serve the dasti summons issued by this Court and
which amount to misconduct of serious nature. We, therefore,
direct the respondent No.1 to treat the report dated 16.11.201 O
of the Additional Chief Judicial Magistrate Ill of Gautam Budh
Nagar, U.P., as a preliminary report and initiate disciplinary c
proceedings against the police personnel named in the
conclusions thereof and conduct the disciplinary proceedings
in accordance with the relevant rules, giving to the police
personnel reasonable opportunity of being heard in respect of
the charges as provided in the Rules and in Article 311 (2) of 0
the Constitution and complete the disciplinary proceedings
within one year from today.

     9. It will also be open for the appellants to file criminal
complaint under Section 200 of the Cr.P.C. on the basis of the
conclusions in the report dated 16.11.2010 of the Additional        E
Chief Judicial Magistrate Ill of Gautam Budh Nagar, U.P.,
before the appropriate Magistrate for prosecuting only those
police personnel who are alleged to have committed any
offence, and if such a complaint is filed, the same will be dealt
with in accordance with law.                                        F

     10. The impugned order of the High Court is set aside and
the appeal is allowed to the extent indicated above. No costs.

Contempt Petition !Crl.) No.7 of 2010 in Criminal Appeal            G
No. 2323 of 2011 (Arising out of Special Leave Petition
!Crl.) No. 666 of 2010)

      When this Contempt Petition was heard along with S.L.P.
(Crl.) No.666 of 2010, Mr. K.K. Venugopal, learned counsel for
the applicant, submitted that an apology has been given by the      H
    578    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A contemnors pursuant to the orders passed by this Court in
  Criminal Appeal No.968 of 2009 (arising out of S.L.P. (Crl.)
  No.5593 of 2006) and this apology is in force. He further
  submitted that the facts stated in the Contempt Petition would
  show that the contemnors are repeatedly intimidating the
B applicant and his family members and for this reason the
  applicant has made a prayer to the Court to pass an order
  commanding the contemn ors not to enter within 100 metres of
  the premises of Santosh Medical College and its administrative
  block, hospital, hostel and the residence of the applicant.
c       2. In reply, Mr. Prashant Bhushan, learned counsel for the
  contemnors, relying upon the averments in the reply, submitted
  that Santosh Medical College is next to the residence of the
  contemnors and that the Medical College is on the main public
  road, which is the only road that leads to the city and shopping
D complex from the residence of the contemnors. He submitted
  that the bank and the public transport are also next to the office
  of the Medical College. He submitted that if any order as prayed
  for by the applicant is passed by this Court then the contemnors
  will be deprived of access to the city and the shopping complex
E as well as the bank and the public transport.

       3. We cannot possibly direct the contemnors not to go to
  any public place such as the public road, bank, shopping
  complex but considering all aspects of the matter, we direct that
F the two contemnors will not enter into the premises of Santosh
  Medical College, its administrative block, its hospital, its hostel
  and the residence of the applicant. The Contempt Petition is
  disposed of accordingly.
    N.J.                                      Matters disposed of.