Custodial torture allegations necessitate immediate FIR registration; a preliminary inquiry is impermissible, reinforcing mandatory action under the law.

JUDGMENT :

SANDEEP MEHTA, J.

1. Heard.

2. Leave granted.

3. The present appeals by special leave, arise out of the final judgment and order dated 18th September, 2023, passed by the learned Single Judge of the High Court of Jammu & Kashmir and Ladakh at Srinagar¹ [Hereinafter referred to as ‘High Court’] in Criminal Miscellaneous Petition No. 111 of 2023 connected with Writ Petition (Civil) No. 592 of 2023, whereby the High Court dismissed the said inter-connected petitions, filed by the appellant (victim) seeking registration of the FIR against the police personnel; transfer of the investigation to Central Bureau of Investigation² [Hereinafter referred to as ‘CBI’] and quashing of the FIR filed against the appellant.

Background facts:

4. The facts necessary for adjudication of the present appeals, as evident from the records, are as follows:

4.1 The appellant is a police constable in the Department of Police who, at the time of the alleged incident, was posted at the District Police Headquarters, Baramulla, Jammu and Kashmir. On 17th February, 2023, the appellant received a signal from Aijaz Ahmad Naiko, Deputy Superintendent of Police, Kupwara, Jammu and Kashmir, directing him to report to the Office of the Senior Superintendent of Police on 20th February, 2023, in connection with an enquiry related to a narcotics matter. The appellant alleges that no sooner he reached the Office of the Senior Superintendent of Police, he was detained and subjected to brutal custodial torture for six consecutive days. His genital organs and testicles were amputated. Pepper was sprinkled on his private parts, and he was given electric shocks which led to a fracture of his foot. The appellant, who suffered grave injuries during the custodial torture, was shifted to the District Hospital, Kupwara, in a comatose condition. Due to his serious medical condition, he was transferred first to the District Hospital, Baramulla, and then to the Sher-i-Kashmir Institute of Medical Sciences (‘SKIMS’) Soura-Srinagar, on 26th February, 2023. At SKIMS, the appellant, who was accompanied by Asiq Hussain, Sub-Inspector, underwent surgery for the injury caused by amputation of his testicles, which had been brought to the hospital in a polythene bag by the said Sub-Inspector. On the same day, i.e. 26th February, 2023, an FIR³ [FIR No. 32 of 2023] was registered against the appellant by Munner Ahmad, Sub-Inspector and In- Charge, Police Post Tad, Karnah, for the offence punishable under Section 309 of the Indian Penal Code, 1860.⁴ [Hereinafter referred to as ‘IPC’] The contents of the said FIR are reproduced herein-below for ready reference:

“Dear Sir, Details of investigation are as under. At this time S.I. Muneer Ahmad 108/KP presently posted as Officer Chowki Police Taad presented himself before the said Police Station with a written Docket in order to register it the contents, which are as under: From Chowki Police Taad Camp JIC Kupwara Time 11.20 hrs. Dated 26.02.2023. To SHO Police Station Kuwpara. Dear Sir, the brief Contents of the case under FIR No. 17 of the year 2023 under the offence 08/21-29 NDPS Act Police Station Kamah are as under. Mr. Khursheed Ahmad Chohan (sic) son of Late Ghulam Mustafa Chohan (sic) resident of Abkote Kamah at present Housing colony Ompora Budgam who is an employee of the Police department working as SG constable and is presently posted at District Baramulla was found involved in the said case under discussion in the Police depart