New Delhi: Slamming the Jammu & Kashmir and Ladakh HC for ‘turning a blind eye’ to custodial torture, the Supreme Court Monday set aside the high court’s September 2023 order, quashed a “prima facie fabricated” FIR against the victim, and ordered the Central Bureau of Investigation (CBI) to probe what it termed a “systematic failure of justice”.
The bench of Justices Vikram Nath and Sandeep Mehta also ordered the Union Territory of J&K to pay Rs 50 lakh as compensation to the victim, J&K Police constable Khursheed Ahmad Chohan. The court’s 58-page judgment made several critical findings.
It held that the violation of Chohan’s fundamental right to life and personal liberty was “not only evident but egregious”. It also found that local police not only failed to investigate the custodial torture but actively engaged in a cover-up. Further, it found that the medical documents and surgical procedures performed at Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar, were conclusive proof of torture that could not be self-inflicted.
Invoking its constitutional powers, the Court ruled that all police personnel responsible for the custodial torture must be arrested forthwith, and no later than one month from the date of the judgment.
A constable posted at the district police headquarters, Baramulla, Chohan was asked to report to the office of the Senior Superintendent of Police (SSP), Kupwara, in connection with a narcotics investigation on 17 February, 2023. When he presented himself on 20 February, he was detained illegally at the joint interrogation centre (JIC), Kupwara, and subjected to six consecutive days of torture.
According to the detailed allegations, corroborated by medical reports, Chohan’s genitalia were mutilated, pepper was sprinkled on his private parts, and he was subjected to electric shocks. He also suffered a fracture in the foot and other injuries, and was ultimately shifted to the district hospital in a comatose state before being transferred to SKIMS.
The top court’s judgment pointed out that SI Asiq Hussain brought Chohan’s dismembered testicles to SKIMS in a polythene bag.
On 26 February, the same day Chohan was admitted to SKIMS in critical condition, Kupwara police registered an FIR under Section 309 IPC (attempt to die by suicide). This FIR, filed by sub-inspector (SI) Munner Ahmad, claimed Chohan attempted suicide by slitting his veins while hiding under a blanket.
The Supreme Court rejected this narrative outright. “It is foolhardy to suggest that a rational person would subject himself to complete genital mutilation and cause injuries to inaccessible body parts so as to avoid questioning in a drug case,” the bench said.
The apex court held that the FIR was manifestly “mala fide” and aimed to protect the guilty officers by projecting the victim of custodial torture as an accused. It found that this counter-narrative was based on “manifestly implausible medical opinion and glaring procedural violations,” thereby reflecting “institutional malice of the highest order”.
Citing Section 115 of the Mental Healthcare Act, 2017, the court noted that prosecution under Section 309 is now legally redundant as it presumes the person attempting suicide is under severe stress.
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‘Systematic cover-up’ by police dept
The Supreme Court’s judgment underscored grave violations of Articles 14 and 21 of the Constitution in the treatment meted out to Chohan. It found that these fundamental rights—equality before law and protection of life and personal liberty—were “blatantly disregarded by the State machinery”.
Chohan’s illegal detention for six days without any judicial order, and the brutal torture inflicted upon him during that period, constituted a “flagrant denial of both liberty and bodily autonomy”. The court described the physical abuse—including mutilation of genitalia, electric shocks, and systemic beatings—as acts that “shock the conscience of this court”.
Equally significant was the violation of Article 14, which guarantees equality before the law and equal protection of the laws. The court found that Chohan was not only “denied equal legal treatment,” but was also actively targeted and falsely implicated by his own department.
A fabricated FIR was lodged against him under Section 309 IPC, while his wife’s repeated attempts to register a complaint were dismissed or ignored. The court described this as “institutional bias” and “a systematic cover-up” meant to shield the guilty officers and discredit the victim.
The judgment also highlighted serious violations of the principles of natural justice, particularly the judicial principle against bias (nemo judex in causa sua, or no one is judge in his own case) and the right to be heard (audi alteram partem, or listen to the other side).
Chohan’s wife, Rubina Akhtar, made multiple efforts to have the police register a complaint against the perpetrators, but the local station house officer (SHO) and the SSP allegedly refused.
She was compelled to serve a legal notice and file an application under the Right to Information (RTI) Act to even access her husband’s medical records. This, the court noted, was “total apathy of the local police officials in taking action against the perpetrators of custodial violence”.
Further, the two-judge bench criticised the J&K High Court for its direction to the SSP, Kupwara—under whose jurisdiction the torture occurred and whose subordinates were implicated—to conduct a preliminary inquiry into the incident. This, the court held, amounted to “a flagrant violation of the fundamental principles of natural justice.”
Justice Mehta, authoring the judgment, observed that the “same officer who allegedly played a role in the events leading to the custodial torture” was now being tasked with overseeing the inquiry, thereby “compromising the impartiality and credibility of the entire process”.
On September 18, 2023, the high court dismissed Chohan’s pleas seeking quashing of the FIR under Section 309 IPC, registration of a fresh FIR against the guilty officers, and the transfer of the investigation to CBI.
It directed SSP, Kupwara, to conduct a preliminary probe—which SC termed “a flagrant violation of the fundamental principles of natural justice”.
Justice Sandeep Mehta, writing the judgment, held, “The high court committed a grave error in law by failing to exercise the writ jurisdiction and in refusing to apply the mandatory principles laid down by the Constitution Bench in Lalita Kumari”. It added, “Faced with a clear abuse of process, where a custodial torture victim is falsely implicated to shield the perpetrators, the High Court was duty-bound to intervene.”
The top court ordered the director of the CBI to register a Regular Case (RC) within seven days based on Chohan’s wife’s complaint dated 1 March, 2023. It said that a Special Investigation Team (SIT) headed by an officer of Superintendent-rank or higher must investigate the matter. The CBI must complete the investigation within 90 days from the date of RC registration and a status report is to be filed before the Supreme Court by 10 November.
Moreover, the Court also ordered a systemic inquiry and directed the CBI to conduct a comprehensive review of systemic and institutional issues at the Joint Interrogation Centre, Kupwara. This will include examining the functioning of CCTV systems, forensic evaluation of the premises, and interrogation of all personnel on duty during the incident.
It reiterated that compensation serves not only a compensatory purpose but also a constitutional imperative in cases of State excesses. “Such compensation must focus on the compensatory element and serve as a balm to the victim, without prejudice to other remedies in civil or criminal law.”
(Edited by Amrtansh Arora)
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