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REPORTABLE

IN THE SUPREME COURT OF INDIA ORIGINAL CIVIL WRIT JURISDICTION

    WRIT PETITION (CIVIL) NO.446 OF 2013

 BEENU RAWAT & ORS    ... PETITIONERS

VS.

UNION OF INDIA & ORS.       ... RESPONDENTS

J U D G M E N T

SHIVA KIRTI SINGH,J.

The  petitioners  claim  to  be  young  volunteers  of  

‘Aam Aadmi Party’ (AAP) engaged in selfless work for  

the  improvement  of  democratic  institutions  of  this  

country  and  also  fight  for  justice.   They  have  

approached  this  Court  under  Article  32  of  the  

Constitution of India seeking the following reliefs:

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“(a)Issue a writ of mandamus or any other  writ or direction to order an independent  investigation  by  a  Special  Investigation  Team  into  the  abovementioned  incident  of  police  atrocities  which  took  place  on  19.06.2013  at  Gokul  Puri  Police  Station  against  the  petitioners  and  if  such  allegations are found correct, pass further  consequential  and  necessary  directions,  including  initiation  of  criminal  prosecution  as  well  as  disciplinary  proceedings against the police officers of  the  Delhi  Police  found  involved  and  also  against  those  senior  police  officers  at  whose  behest  this  vindictive  act  of  atrocity was done; (b) issue a writ of mandamus or any other  writ  or  direction  to  award  monetary  compensation to the petitioners for their  illegal  arrest  and  torture  by  the  Delhi  Police  which  has  resulted  in  gross  violation  of  their  fundamental  rights  to  live  with  dignity  as  guaranteed  under  Article 21 of the Constitution of India; (c) pass such other and further order/s as  this Hon’ble Court may deem fit and proper  on the facts and in the circumstances of  the case.”

2. The  incident  of  19.06.2013  at  Gokal  Puri  Police  

Station in Delhi which is mentioned in prayer no. (a)  

noted above, occurred in course of a protest by the  

volunteers of (AAP) at  Gokal Puri Police Station since  

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morning hours. The protestors wanted registration of an  

FIR in respect of an alleged occurrence of rape of a  

poor  woman  by  two  persons  in  Bhagirathi  Vihar.  

Allegedly the police was reluctant to register the FIR  

and  hence  a  number  of  volunteers  including  the  

petitioners joined the protest.  The FIR was ultimately  

registered  around  2.30  p.m.  and  the  protestors  were  

informed of the same. A demand was made for a copy of  

the FIR.  According to respondents the copy could not  

be given to others because of the nature of the alleged  

crime which requires that name of the victim be not  

disclosed.  According to petitioners the copy of the  

FIR was not given even to victim’s husband. It is the  

case of the petitioners that when they were planning to  

wind up the protest, they were suddenly rounded up by a  

large  number  of  policemen  and  mercilessly  beaten  by  

them. The manner of chase and beating by lathi gave an  

impression to the petitioners that the police action  

was not to disperse the petitioners but to teach them a  

lesson.   As  per  allegations,  the  police  also  used  

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abusive language and told the protestors that they will  

be taught a lesson so that they do not indulge in such  

kind of protests in future. Initially, police arrested  

seventeen volunteers but three of them were let off as  

they were minor girls. Subsequently, petitioner Nos. 2  

and  10  were  also  taken  into  custody  and  allegedly  

beaten  in  police  custody  although  they  claimed  that  

they  had  come  to  the  police  station  later  only  to  

enquire about the incident.  The nineteen petitioners  

claim to have sustained serious injuries on head, back,  

arm  and  legs.  One  of  them  (petitioner  no.17)  has  

sustained fracture in lower ulna but he managed to run  

away.

3. According to the case of the petitioners the police  

had indulged in unlawful use of force and inflicted  

injuries before arrest and also during custody, leading  

to injuries to the petitioners; the arrest was unlawful  

which is sought to be justified by fabricated evidence  

for  rioting  etc.;  by  breaking  window  glasses  and  

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tearing of some papers in the police station. According  

to the petitioners a serious case was attempted to be  

made out through subsequent statement of one ASI of  

police,  Ms.  Sushila.   There  is  no  such  incident  

mentioned  in  the  FIR  bearing  no.  251/2013  dated  

19.06.2013  registered  at  P.S.  Gokul  Puri  and  even  

before  the  learned  Metropolitan  Magistrate  she  had  

alleged that only her scarf (dupatta) was pulled by  

protestors.  The  petitioners  have  claimed  that  the  

Commissioner of police, Delhi, has made an incorrect  

statement that Delhi police has videos of protestors  

vandalizing the police station.  To decide the case it  

is  not  necessary  for  this  Court  to  delve  deep  into  

allegations made by the petitioners or those against  

them by the police which has lodged a criminal case of  

rioting etc. as noted above.  This is because there is  

no prayer made in this writ petition seeking any kind  

of  intervention  in  the  investigation  of  police  case  

registered  against  the  petitioners.   Even  the  first  

prayer  made  by  the  petitioners  is  to  order  an  

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independent  investigation  by  a  Special  Investigation  

Team (SIT) into the incident of 19.06.2013 to find out  

the  truthfulness  of  allegations  of  police  atrocities  

and if such allegations are found right then further  

consequential orders be passed for criminal prosecution  

as well as disciplinary action against the concerned  

police officers.  Hence, the issue before the Court is  

a limited one requiring a careful appraisal of relevant  

facts and circumstances for coming to a conclusion as  

to whether the petitioners have made out a case for  

issuing  a  direction  to  order  an  independent  

investigation into the alleged incident of 19.06.2013  

at Gokal Puri Police Station, Delhi or not.

4. In this background a look at the counter affidavit  

on behalf of the respondents discloses that the version  

given by the police attempts to portray a picture that  

when the prosecutrix or the victim of alleged rape came  

to the police station along with her husband at about  

9.00 a.m. on 19.06.2013, the S.H.O. immediately deputed  

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a  lady  A.S.I.,  Ms.  Sushila  to  investigate  into  the  

matter and a female counselor, Mrs. Dinesh Panchal from  

a local NGO was also called for the aid of prosecutrix.  

A Daily Diary entry to this effect bearing no.11-A was  

made at 9.10 a.m. and a statement of the victim was  

recorded by the lady A.S.I. in presence of counselor  

from  the  NGO.   On  that  basis  FIR  No.  250/13  was  

registered under Section 376-D/506 of the Indian Penal  

Code at 10.05 a.m. and thereafter the victim was sent  

for medical examination to Guru Teg Bahadur Hospital,  

New Delhi.  The fact of lodging of the FIR was conveyed  

to the protestors but still by 12.00 noon their number  

increased to 100-125 which included 20-25 women.  A  

lady ASI was deputed to control the female protestors.  

Demand for getting a copy of FIR was declined by the  

S.H.O. with a view not to reveal the identity of the  

victim.

5. It is found that the counter version does not deny  

or even refer to the presence of husband of the victim  

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and there is no disclosure of any reason as to why copy  

of  the  FIR  was  not  supplied  to  the  victim  or  her  

husband. Had that been done, the bone of contention  

between the rivals could have been totally taken care  

of.

6. According to the counter affidavit the protestors  

were all around the compound of the police station and  

had also entered the corridor thus blocking the entry  

and  exit  of  the  officials  and  obstructing  them  in  

performing  their  official  duties.   The  protestors  

climbed the compound walls and shouted slogans.  They  

abused the police officials and some of them pelted  

stones causing damage to building windows and vehicles.  

The police staff was trapped inside the police station  

being out-numbered by the large number of protestors.  

The violent acts of the crowd allegedly caused injuries  

to five police personnels.  Their injury reports have  

been annexed as Annexure R.1 (colly).  The lady A.S.I.  

engaged  in  controlling  the  women  protestors  was  

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manhandled by the crowd and sustained injuries.  To  

support  the  claim  that  protestors  had  entered  the  

premises, blocked entry to the police station, pelted  

stones  and  damaged  public  property,  some  photographs  

have been brought on record as Annexure R.2 (colly).

7. Paragraph 5 of the counter affidavit is crucial as  

it relates to the most significant part of the incident  

in  which  injuries  were  caused  to  some  of  the  

petitioners leading to their arrest.  Paragraph 5 runs  

as follows:-

“5.  As  the  crowd  had  become  uncontrollable,  the  SHO,  PS  Gokul  Puri  reported  the  situation  to  the  senior  officers  and  asked  for  the  deployment  of  additional  police  force  from  adjoining  Police  Stations,  PS  Jyoti  Nagar  and  PS  Bhajan Pura, to control the crowd. With the  help of the additional force, efforts were  made  to  disperse  the  crowd  and  help  the  officials trapped inside the Police Station  Gokul  Puri.   Arrival  of  the  additional  force  from  the  adjoining  police  stations  created  panic  amongst  the  protestors  and  they  started  dispersing  in  various  directions.  Some of the protestors who had  climbed  the  walls  of  the  Police  Station  fell  down  on  the  vehicles  parked  by  the  wall and sustained injuries on their own.  

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There  was no  lathi charge  or any  act of  beating  of  the  protestors  as  wrongly  alleged by the Petitioners.”

8. It has also been disclosed in the counter affidavit  

that till 3.30 p.m. eighteen persons were apprehended  

on  the  spot  which  included  three  minor  girls,  four  

women and eleven men.  FIR was registered against the  

protestors bearing no.251/13 at 5.35 p.m.  The three  

minor girls were let off at about 7.00 p.m. when their  

parents arrived.  The remaining fifteen were however  

arrested.  They were sent for medical examination to  

Ram Manohar Lohiya Hospital and then produced before  

the Duty Magistrate at 2.20 a.m. in the morning and  

then sent to Tihar jail.  Petitioner No. 10-Narender  

Rawat, brother of minor petitioner no.1 Beenu Rawat and  

also  petitioner  no.4-Pushpa  is  claimed  to  have  been  

arrested in the morning of 20.06.2013 because he had  

escaped on the previous date.  Petitioner No.17 along  

with four other persons had also allegedly escaped and  

they were arrested on 21.08.2013.

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9. In  paragraph  8  of  the  counter  affidavit  a  

submission  has  been  advanced  that  petitioners  are  

trying  to  mislead  this  Court  by  making  wrong  

allegations  that  police  used  excessive  force  against  

them.  The  defense  in  this  paragraph  is  that  the  

protestors  had  outnumbered  and  over  run  the  police  

officers at police station Gokal Puri, obstructing them  

from performing their official duties and caused damage  

to public property on the pretext of helping a rape  

victim.   

10. According  to  respondents,  there  was  no  lapse  on  

behalf of the police to help the prosecutrix and the  

police resorted to the minimal use of force only enough  

to disperse the large violent crowd and safeguard the  

police personnel trapped inside the police station.

11. As indicated earlier, at the present stage when the  

criminal case is under investigation it will not be  

proper  for  this  Court  to  finally  decide  any  issue  

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relating to that case.  The pendency of investigation  

in that case notwithstanding, this Court has to decide  

the limited issue whether petitioners have made out a  

case that their fundamental right to live with human  

dignity guaranteed by Article 21 of the Constitution of  

India has been invaded, atleast prima facie, so as to  

direct for an independent investigation/enquiry so that  

the  perpetrators  may  not  get  away  scot  free  if  

petitioners’ case is found true.   

12.  In part III of the Constitution of India Article  

21 enjoys special status. Right to life and Right to  

liberty are of historical importance. Rise of modern  

democratic state is attributable to a long drawn battle  

waged by ordinary people against the sovereign power.  

The  law  is  now  well  settled  that  the  State  or  its  

functionaries  cannot  deprive  any  person  of  his  life  

which includes right to live with human dignity except  

in accordance with law.  The maximum threat to such  

fundamental  right  is  perceptible  when  any  kind  of  

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protest  or  agitation  is  directed  against  the  police  

force  for  reasons  which  are  self-evident.  Police  is  

licensed to carry arms for protecting the people.  This  

itself creates a situation where the power of arms may  

be misused under the mistaken belief in the absolutism  

of  the  police  power  or  on  account  of  lack  of  

sensitivity to the democratic rights of the people to  

register peaceful protest, against wrongs, especially  

that  of  public  functionaries.   The  submissions  on  

behalf of respondents that nobody can be permitted to  

paralyse  the  functioning  of  police  or  other  State  

institutions in a name of public protest can not be  

rejected off hand because it is only a corollary of the  

right  to  protest  peacefully;  proverbially  the  other  

side of the coin which corroborates the well accepted  

principle that rights without duties tend to degenerate  

into license for misuse of rights.  In a given case,  

the facts may lead to such conclusions.  Hence facts  

and circumstances in such cases need to be scrutinized  

carefully.

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13. In the present case also the relevant facts require  

to  be  noticed  in  order  to  arrive  at  a  conclusion  

whether the petitioners’ prayers deserve to be allowed  

or  not.   The  petitioners  are  ordinary  persons  with  

clean  antecedents.  The  injuries  caused  to  the  

petitioners in the incident have not been denied as  

they  are  supported  by  medical  reports.   So  far  as  

injuries to some of the police officers are concerned,  

instead of forming our own opinion, we may only refer  

to the order dated 22.06.2013 passed by the Vacation  

Judge  (NE)/Additional  Sessions  Judge  contained  in  

Annexure P.11. While granting bail to 11 applicants, in  

paragraph 6, the learned Judge had noted that the MLCs  

of  five  police  officials  indicate  that  they  have  

suffered from minor injuries which were in the form of  

scratches  and  abrasion  only  and  the  FIR  does  not  

indicate that the lady police officials were assaulted  

or any attempt to outrage their modesty was made by the  

accused persons.

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14. Since a claim was made that unlawful acts of the  

protestors had been recorded through videography which  

was available with the respondents, learned Additional  

Solicitor General Sidharth Luthra made arrangements for  

screening of the video tape for our perusal.  The video  

footage  shown  to  us  revealed  that  none  of  the  

protestors were carrying any arms or even brickbats in  

course  of  the  protest.   The  initial  part  of  the  

incident discloses lack of any bitterness and almost a  

friendly atmosphere.  Thereafter, when copy of the FIR  

was shown from a distance but not made available to any  

one,  the  slogans  increased  and  the  tone  could  be  

perceived by some persons as irritating.  Barring some  

protestors rest were pushed out of the gate of police  

station  without  any  resistance  or  any  untoward  

incident.  The crowd outside the gate apparently did  

not  disperse.  The  last  part  of  the  video  footage  

fleetingly shows use of lathis by the police men upon  

the protestors. Thereafter, the recording was stopped  

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and  appears  to  have  been  resumed  after  lapse  of  

sometime to show some broken glass panes, brickbats in  

very limited number and some broken spectacles lying on  

the ground, a grim reminder of use of force.

15. Learned  senior  counsel  for  the  petitioners  Mr.  

Shanti  Bhushan  has  relied  upon  some  past  incidents,  

specially one relating to unfortunate death of a police  

constable in the course of demonstration against the  

gang  rape  to  a  paramedical  student  “Damini”  in  

December, 2012, followed by another unfortunate case of  

a five years’ old victim “Gudiya” which led to protest  

by members of AAP and in course of the same petitioner  

no.1 was slapped by an Assistant Commissioner of Police  

of Delhi force which led to suspension of the said ACP.  

He  also  referred  to  some  allegations  against  the  

erstwhile Delhi Police commissioner.  On the basis of  

those incidents and allegation it was submitted that  

Delhi police cannot be relied for fair investigation in  

a case of present nature involving members of ‘AAP’ and  

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therefore the Court should order for fair investigation  

by an independent agency.

16. On the other hand, Mr. Luthra submitted that police  

itself  acted  fairly  and  did  not  submit  charge-sheet  

against any of the accused persons arrested for causing  

death of constable Subhash Tomar.  He pointed out that  

the concerned ACP who had slapped petitioner No.1 was  

placed  under  suspension.  According  to  him  the  

allegations  that  the  erstwhile  Delhi  Police  

Commissioner was close to a white collared criminal,  

has no substance and that matter cannot have any effect  

upon the investigation of the present incident.

17. In  our  considered  view  it  is  not  necessary  to  

examine the effect of earlier incidents for the purpose  

of deciding the present writ petition.  There is no  

dispute  that  petitioners  have  received  injuries  but  

according to counter affidavit, these were due to some  

of the protestors falling down on the vehicles parked  

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along the walls of the compound and there was no lathi  

charge or any act of beating of the protestors.  Such  

statement  in  paragraph  5  of  the  counter  affidavit  

cannot be accepted in view of the last part of the  

video  footage  already  noted  earlier.   A  glimpse  of  

action taken by the police is available in paragraph 8  

of the counter affidavit wherein it is claimed that  

Police resorted to minimal use of force which was only  

enough to disperse a large violent crowd and safeguard  

the police personnel.  No part of the video footage  

shows the crowd to be very large or indulging in any  

physical violence.  Even if this version in the counter  

affidavit is accepted in part, one is left to wonder  

why the petitioners who had injuries on their bodies  

had to be arrested instead of allowing them to disperse  

with the crowd which was allegedly large and violent.  

It  is  also  intriguing  as  to  why  the  FIR  bearing  

No.251/13 for rioting etc. was registered at 5.35 p.m.  

after eighteen persons were apprehended at 3.30 p.m.  

and not before their arrest if they had vandalized the  

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police  station  and  caused  damage  to  the  public  

property.

18. In the light of the aforesaid discussions and the  

fact that the video footage recorded at the instance of  

the police does not show acts of rioting or any arms or  

brickbats  in  the  hands  of  the  protestors  and  the  

recording was stopped as soon as police started using  

lathis upon the protestor, we are left with no option  

but to hold, at least prima facie, that in the incident  

in  question,  peaceful  protestors  were  subjected  to  

beating  by  lathis  etc.  by  the  police  force  which  

included policemen from the concerned police station as  

well  as  force  called  from  adjoining  police  station,  

P.S.  Jyoti  Nagar  and  P.S.  Bhajanpura.   The  counter  

version  of  the  respondents  that  the  petitioners  

indulged  in  rioting  and  damaged  public  property  is  

neither supported by photographs contained in Annexure  

R.2  (colly)  nor  by  the  video  footage  shows  to  this  

Court.  In that view of the matter, the whole incident  

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of 19.06.2013 at Gokul Puri Police Station, District  

North-East, Delhi requires to be investigated/enquired  

by an independent agency or by a Special Investigation  

Team.  Considering the possibility of our arriving at  

this opinion we had requested learned counsel for the  

rival parties to provide us proposals containing names  

of some persons who could be entrusted with conducting  

investigation in the said incident. On behalf of the  

petitioners two names have been proposed which are as  

follows:

1. Sh. I.C.Dwivedi, IPS (RTD.), Former  Director  General  of  Police,  Uttar Pradesh,  Address: 9/26, Vishal Khand, Gomati  Nagar, Lucknow.

2. Sh. N.Dilip Kumar, IPS (Retired)    Special Commissioner Delhi Police

also worked as Joint Commissioner of  police (Vigilance) Delhi Police Worked in CBI for seven years

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Address: 16 A, Rajpura Road, Civil  Lines, Delhi.

19. On the other hand, on behalf of the respondents  

only a letter addressed to Sh. Sidharth Luthra, leaned  

Additional  Solicitor  General  along  with  copy  of  an  

order  dated  31.10.2013  issued  from  the  office  of  

Commissioner of Police, Delhi, has been submitted to us  

to show that since during the course of hearing of this  

matter  this  Court  had  expressed  the  need  for  an  

impartial or fair investigation by some other competent  

setup, the Commissioner of Police Delhi has approved  

for formation of a Special Investigation Team headed by  

Sh.  Bhisham  Singh  DCP/Crime  to  work  under  close  

supervision  of  Joint  Commissioner  of  Police,  Crime,  

Delhi.

20. So far as investigation of the FIR No. 251/13 is  

concerned, in our considered view it has rightly been  

transferred from police station Gokal Puri to a Special  

Investigation Team. However that can not take care of  

the  petitioners’  grievances  that  they  have  been  

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subjected to excessive use of force and abuses etc. and  

that the force used was not at all justified and hence  

they have been deprived of their fundamental right to a  

life of dignity.  In view of our prima facie findings  

noted above, we are of the view that the grievances of  

the petitioners require investigation by an authority  

having statutory jurisdiction in such matters.  If the  

State had itself suggested names of the persons who  

could  constitute  Special  Investigation  Team  for  the  

purpose, the matter would have been different and we  

could have considered to direct for formation of such a  

team by the State by selecting persons from the names  

suggested by the parties. But in the absence of such  

option, we direct the National Human Rights Commission  

to  enquire  into  the  complaint  of  the  petitioners  

regarding  violation  of  their  fundamental  rights  

particularly one under Article 21 of the Constitution  

of India. Such direction is granted in view of Section  

12(A)  of  the  Protection  of  Human  Rights  Act,  1993.  

Under  that  Act  the  definition  of  “Human  Rights”  is  

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large  enough  to  include  rights  relating  to  life,  

liberty,  equality  and  dignity  of  the  individual  

guaranteed by the Constitution.  In that view of the  

matter,  the  writ  petition  is  disposed  of  with  the  

following directions:-

(1)  Investigation  of  FIR  No.251/13,  as  per  

order of the Commissioner of Police, Delhi, dated  

31.10.2013  shall  be  carried  out  by  Special  

Investigation Team and not by the police officials  

of P.S. Gokul Puri.

(2) The complaint of the petitioners as made  

before  this  Court  regarding  violation  of  their  

fundamental  right  to  life  and  liberty  shall  be  

enquired  into  by  the  National  Human  Rights  

Commission expeditiously.  For that purpose the  

Commission may use its statutory powers including  

those under Sections 13 and 14 of the Protection  

of Human Rights Act, 1993.

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(3) The Commission shall take further required  

steps and action as per law after concluding the  

enquiry/investigation  so  that  persons(s)  found  

guilty  may  be  subjected  to  required  penalty  

according to law, without undue delay.

21. The  writ  petition  is  allowed  to  the  aforesaid  

extent.

…………………………………………………J.     (G.S. Singhvi)

…………………………………………………J.  (Shiva Kirti Singh)

…………………………………………………J.  (C. Nagappan)

New Delhi, November 19, 2013            

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