Delhi High Court
Ashok Kumar Aggarwal vs V.K. Pandey And Ors. on 28 August, 2003
Equivalent citations: 109(2004)DLT179
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. It is common ground that the grievance which has been articulated in this Petition is the alleged non-compliance by the Respondents of the sterling and celebrated decision of the Apex Court which is reported as D.K. Basu v. State of Bengli, I (1997) CCR 81 (SC)=(1997) 1 SCC 416 : 1997 SCC (Crl.) 92 : AIR 1997 SC 610: 1997 Cr. LJ. 743. In the Judgment the following elements have been enunciated as essential prerequisites of arrest, and preventive measures to ensure that human rights and the dignity of every individual is safeguarded.
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who Kindle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police stationer interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned, Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not through out the interrogation.
(11) A police control room should be provided at all District and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."
2. The Petitioner's complaint is that the 2nd, 7th and 9th elements have been flagrantly transgressed and have deliberately not been complied with by the Respondents.
3. In the Contempt Petition the Petitioner has averred as under:
(i) That the arrest of the Petitioner is predicated on a Preliminary Enquiry registered on 7th December, 1999 pursuant to the complaint of Respondent No. 2, Shri Ram Naresh, against the Petitioner for the alleged possession of assets of Rs. 8.38 lakhs which are disproportionate to the declared/known sources of his income.
(ii) That the arrest of the Petitioner is a consequence of a threat uttered on 28th September, 2000, by Respondent No. 2. The Petitioner has recorded Respondent No. 2's threatening utterances in terms of his letter dated 6th October, 2000.
(iii) That the Petitioner participated in the investigations pursuant to the case R.C. No. S19/E0006/99 and regularly joined the investigations and voluntarily attended these ongoing interrogations, inter alia on 14th October, 2000, on which date he was issued a notice by Respondent No. 1 to appear yet again on 18th October, 2000. On 18th October, 2000, the Petitioner sent a letter requesting for an adjournment for one week because he was afflicted with a fever. The Petitioner's say is that due to the facts stated above, on account of the purported ground of his not attending the office of Respondent No. 1, on the very next day, i.e. 19th October, 2000, Respondent No. 2 led the team of CBI Officials arrested the Petitioner at 5.50 A.M. after making a forced entry into his home. It is complained that after beating up the Gate-keeper and breaking into the house, the Respondents locked up the Petitioner's family members in a room, and forcibly dragged him out of his bedroom, which resulted in his receiving minor injuries. The Petitioner was arrested in his underwear and baniyan/vest; and he was not even allowed to wear proper clothes. A telegram was sent by the wife of the Petitioner on 19th October, 2000 to the Hon'ble Chief Justice of India, Prime Minister of India and Director (CBI) giving details of the torture of the Petitioner by Respondents 1 and 2. The Petitioner has assailed the action of Respondents 1 and 2 as mala fide and a product of pique. He has termed the stand taken by Respondent No. 1 in his Counter; as an afterthought. He has further averred that his arrest was made to ensure that he was not reinstated in the job. The arrest was because the specific information and details sought by the Department of Revenue from the CBI, required to be furnished by 18th October, 2000, could not be furnished due to the Petitioner's absence from the investigation/interrogation scheduled for that date,
4. Insofar as the first direction is concerned the violation alleged by the Petitioner is as under:
(i) That the memorandum of arrest was not got attested either by the family member of the arrestee or any other responsible person from the locality from where the arrest was made. The validity of the attestation by Krishan Kumar who is the Gate-keeper of the Petitioner's brother has been attacked and it is averred as having been extracted under duress and threats administered to him. The fact that the arrest memo has been signed in English, whereas Shri Krishan Kumar does not know English, has been emphatically highlighted.
(ii) Mr. Krishan Kumar's affidavit dated 3.7.2001 filed along with the Petitioner's Rejoinder purportedly supports this stand of the Petitioner. The Respondent's case that the Petitioner's family members refused to sign the arrest memo is termed by the Petitioner as an afterthought because the wife of the Petitioner and others in his family were confined to a room after being abused and they were only released after the Petitioner was arrested and frisked (sic. whisked) away. The fact that the Petitioner's presence is mentioned and the presence of the other persons from the locality is not mentioned shows that it is an afterthought.
5. On the contrary the Respondents have submitted that the wives of the Petitioner and his brother, all of whom were present at the time of arrest, were requested to sign the memorandum of arrest, and it was only upon their refusal that Shri Krishan Kumar, the Guard, signed it. It is submitted that the Guard's affidavit dated 3rd July, 2001 retracting his signature on the arrest memo cannot amount to contemptuous action as being in violation of D.K. Basu's judgment (supra). This affidavit was only produced along with the Rejoinder in this contempt petition and was not produced along with the petition even though the date of its affirmation is prior to the date of filing the Petition. The very fact that this affidavit was produced only with the Rejoinder on 17th October, 2001 indicates that this affidavit is an afterthought and is an attempt to implicate the officers. It is submitted that there is no violation of any of the directions of D.K. Basu's case (supra).
6. In my view, the mere fact that the refusal of the Petitioner's wife has not been mentioned by the Respondent in the arrest memo is not of such significance as to be a foundation for the contempt action against the Respondents. In D.K. Basu's case (supra), the Hon'ble Supreme Court has prescribed the necessity of attestation by one witness who may either be a member of the family, or a 'responsible' person from the locality from where the arrest is made. In view of the fact that the arrest was made in the early morning and the Respondents have asserted that the family members declined to attest the said Memorandum, the attestation by the guard would comply with the aforesaid Judgment. There is no particular direction in D.K. Basu's Judgment that only upon a refusal by the family member should the attestation be made by a respectable person of the locality. Therefore, insofar as the aforesaid direction is concerned there is no merit in the submission of the Petitioner justifying the continuance of the contempt proceedings on this ground as the requirement of attestation by a respectable person of the locality has been met. Whenever contempt jurisdiction is to be invoked and applied, there should be no room for two possibilities or versions of the incident in question. Furthermore, the retraction by the Guard cannot be given any credence at this stage particularly when it has been produced as late as on 17th November, 2001 along with the Rejoinder. It has not been mentioned in the main Petition even though the date of the Affidavit is prior to the filing of the Contempt Petition. It is not beyond the realm of possibility that the said members of the Petitioner's family declined to sign the Memorandum. Such complex and contested facts would be properly considered in a Trial.
7. The other issue which the Petitioner has raised is that the arrest memo fails to record the injuries on the person of the Petitioner at the time of his arrest. The Petitioner's case on this issue is that the examination of the Petitioner must be conducted at the time of arrest; and must record the major and minor injuries on the body of the person; and must be signed both by the arrestee and the police officer and a copy thereof recording the injuries should be provided to the arrestee. The Petitioner has submitted that no inspection memo has been prepared by them of the injuries to the Petitioner's person. The Petitioner has admittedly been taken to the Deen Dayal Upadhyay Hospital and his medical checkup was carried out at 8.45 A.M. which was three hours after His arrest. The Petitioner further submits that D.K Basu's mandate that the physical state of the arrestee should be noted in a memo prepared at the time of his arrest and not afterward and states that this direction has specifically been violated.
8. It will be necessary to consider the relevant guidelines extracted above. The directions of the Supreme Court clearly mandate that if the arrestee so requests, he should be examined at the time of arrest and major and minor injuries, if any are present on his person, should be recorded. The Respondents have contended that the Contempt Petition does not state that the Petitioner requested that he be subjected to a medical checkup at the time of his arrest, I have gone through the entire Contempt Petition. There is no averment that the Petitioner had requested the arresting officer to carry out an examination of the major/minor injuries on person of the Petitioner. It was in this context that Dr. Singhvi had drawn my attention to the trailblazing, and now famous decision of the U.S. Supreme Court in Ernesto A. Miranda v. State of Arizona, 384 US 436:16 L Ed. 2D 694 (1966), which was duly considered by the Apex Court. It must immediately be stated that it would be inappropriate for this Court to amplify and extend the scope of D.K. Basu's case, on a fresh or wider understanding of the Miranda case. I must apply the D.K. Basu doctrine within the parameters prescribed therein. For this reason I cannot accede to the submission that even if the Petitioner did not categorically demand a medical examination, the arrest must be faulted and the Respondents sentenced for contempt of Court even in the absence of torture and physical injury to the arrestee. The gravamen of the protection must be seen. It would dramatically and diametrically change where torture and grave assault is found. The arresting authority would then be hard put to explain such injuries and would not be heard if it adopted the position that it did not carry out the medical examination because this was not demanded. A pragmatic handling and approach is essential.
9. Furthermore, it would not be correct to ignore the telegram of Petitioner's wife which is indubitably a contemporaneous document. It states that--"CBI officials raided my residence B-1/134, Paschim Vihar, New Delhi at 5 A.M. after breaking open the door, abused and misbehaved with ladies and sleeping children who were also abused and all were confined to one room. It is prayed to kindly look into the matter sympathetically (sic)". No torture has been alleged. The intent behind the seventh element in D.K. Basu's case (supra) is to protect a citizen from subjection to physical torture. The Authorities should not be given room to inflict bodily harm and thereafter claim that the arrestee had suffered injuries prior to his arrest or detention. In the event of the existence or detection of injuries on the person of the arrestee which assume importance, the Authorities usually would be hard put to explain away or meet such changes. It is in the best interests of all concerned to conduct a medical examination. It obviates the creation of self-inflicted injuries with the intent of fastening blame on the arresting authority. The Petitioner was produced before the Special Judge in the post-lunch session on the very day of his arrest. As in the case of his wife's telegram, there was no complaint mentioned before the Court of any physical assault. Even prior to his production, the Petitioner had undergone a medical checkup in Hospital, in the course of which minor injuries were noticed. The Petitioner's challenge is essentially not that he was tortured but that a punctilious adherence to the Apex Court's direction was not carried out. I am reluctant to embark upon such a pedantic reading of seventh element. The protection of the citizen which the Supreme Court has made bold to ensure, should not be made unworkable by an exaggerated and pointless adherence to procedure. If the submission of the Petitioner is accepted, it would necessitate the presence of a medical practitioner at every investigation or interrogation, since there is always a possibility that an arrest may become essential.
10. Furthermore, there is no requirement that the medical examination in the memo of arrest must necessarily be an independent document as submitted by the Petitioner. In any case I need not go into the fact whether the arrest memo and the medical inspection report must constitute a single or separate document as the Contempt Petition does not aver at all that the Petitioner had requested for medical examination at the time of arrest making it entirely unnecessary to go into the averment that direction of D.K. Basu's case (supra) requires a separate memo of arrest apart from a medical inspection memo. The direction in the D.K. Basu's case (supra) insofar as the medical inspection is concerned only mandates that "the arrestee should, where he so requests, be also examined at the time of his arrest..................."
11. The fact that the Petitioner has not even averred in the Contempt Petition that such a request was made makes it unnecessary to consider other averments of the Petitioner on this ground. The argument that an infraction of the Ninth element adumbrated in D.K. Basu's case (supra) which has taken place is nakedly specious. The syntax of the phrase Illaqa Magistrate, in the circumstances in which it was used, encompasses a Special Judge or Duty Magistrate, or any other person, exercising judicial functions. The intendment is that no person should be detained or arrested without his whereabouts being known. The argument is only to bestated for it to be rejected forthwith.
12. Thus in the facts and circumstances enumerated above and on the averments made in the Contempt Petition and the plea advanced by the parties, the violation of directions of D.K. Basu's case (supra) have not been substantiated. Accordingly the Contempt Petition is dismissed.