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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CONTEMPT PETITION (CRL.) No.7 of 2010  (In Criminal Appeal No.2323 of 2011 (Arising out of Special  

Leave Petition (Crl.) No. 666 of 2010)

P. Mahalingam                                       …… Applicant

Versus

Monica Kumar & Anr.                                      ……  Respondents

WITH

CRIMINAL APPEAL NO.2323 OF 2011 (Arising out of Special Leave Petition (Crl.) No. 666 of 2010)

Monica Kumar & Anr.                                      ……  Appellants

Versus

State of U. P. & Ors.                                             ……  Respondents

O R D E R

A.K. PATNAIK, J.

Criminal Appeal No.2323 of 2011 (Arising out of Special  Leave Petition (Crl.) No. 666 of 2010)

Leave granted.

2. This is an appeal by way of special leave under Article 136  

of the Constitution against the order dated 05.12.2009 of the  

Division  Bench  of  the  Allahabad  High  Court  dismissing  the

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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 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  

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 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 hand of appellant No.1 was also taken which  

disclosed a fracture and thus her left hand was put in plaster.

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The  appellants  made  a  written  complaint  to  the  Senior  

Superintendent of Police, NOIDA, on 29.05.2009 but he refused  

to accept the complaint.   

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 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 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, the appellants filed Writ  

Petition  (Criminal)  No.23839  of  2009  before  the  High  Court  

praying inter alia 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 case the FIR had not been  

registered and there was no question for considering any prayer

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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 (for short ‘the Cr.P.C.’) and in  

case  any  such  application  is  filed,  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  

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  

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  

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 released only after  

the mother of the appellants called the Senior Superintendent  

of Police of NOIDA, who thereafter called the respondent No.4 to

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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  District  and  Sessions  

Judge, Gautam Budh Nagar, U.P., to enquire into the incident  

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 III of Gautam Budh Nagar, U.P., who after  

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  III  of  Gautam  Budh  Nagar,  U.P.,  are  extracted  

hereinbelow:

“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 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 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.

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4.  The  complaint  in  the  matter  was  made  with  serious 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  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  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.

7.  The  Senior  Superintendent  of  Police,  Gautam  Budh Bagar  Shri  Ashok Kumar  Singh appears  to  have shut his  eyes to what  had happened in the  Police Station on 28.05.2009.

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 were packed  down  at  the  will  of  the  Chairman  of  Santosh  Medical College, Ghaziabad, Shri P. Mahalingam.”

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 Inspector Anil Samania (Respondent No.4),  

Shri  J.K.  Gangwar,  Sub-Inspector  and  few  constables  and  

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

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Nagar, U.P., the Sub-Inspector, In-charge of the Complaint Cell  

Shri Rishipal Singh failed in his duty to place the complaint  

before the higher authorities for proper action in the 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  

grievance in the complaint  and the Senior Superintendent of  

Police,  Gautam Budh Nagar,  Ashok Kumar Singh appears to  

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 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  

16.11.2010  of  the  Additional  Chief  Judicial  Magistrate  III  of  

Gautam Budh Nagar, U.P., as a preliminary report and initiate  

disciplinary 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

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respect of the charges as provided in the Rules and in Article  

311(2)  of  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  

Chief  Judicial  Magistrate  III  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.

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  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  

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

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applicant  and  his  family  members  and  for  this  reason  the  

applicant  has made a  prayer  to  the  Court  to  pass  an order  

commanding the contemnors 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.

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  

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 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  the  two  contemnors  will  not  

enter into the premises of Santosh Medical College, its

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administrative  block,  its  hospital,  its  hostel  and  the  

residence of the applicant.  The Contempt Petition is  

disposed of accordingly.    

……………………..J.                                                                              (Dalveer  Bhandari)

……………………..J.                                                                              (A. K.   Patnaik) New Delhi, December 16, 2011.