Parvez Ansari & Anr vs Rakesh Asthana & Ors on 5 May, 2022

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Delhi High Court - Orders

Parvez Ansari & Anr vs Rakesh Asthana & Ors on 5 May, 2022

1. The instant contempt petition has been filed alleging that the directions given by a Division Bench of this Court vide order dated 07.02.2018 in W.P.(C) 7608/2017 had not been complied with. The relevant portion of the said order reads as under:-

"15. We have heard Mr. Sanjay Jain, learned ASG and Mr. Satyakam, ASC, GNCTD on the aforesaid issues and the reports. Upon consideration of the report and the suggestions made by the parties under the leadership of the Worthy Registrar General and with their consent, it is directed that so far as working of Section 41A, the following procedure shall be strictly followed by the police in Delhi:

Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 1 of 11 Signing Date:06.05.2022 16:36:38

Procedure for issuance of notices/order by police officers under Sections 41A "(i) Police officers should be mandatorily required to issue notices under Section 41A CrPC (in the prescribed format) formally to be served in the manner and in accordance with the terms ofthe provisions contained in Chapter VI of the Code.

Model form of notice under Section 41A CrPC is reproduced herein below:-

" MODEL SECTION 41A CrPC NOTICE Sr.No ................

Police Station ........

To, [Name of Accused/Noticee] [Last Known Address] [Phone No./Email ID (if any)] Notice under Section 41(A) Cr.P.C.

In exercise of the powers conferred under subsection (1) of section 41A of Cr.P.C.; I hereby inform you that during the investigation of FIR/Case No. ... ... ... ... .... dated ... ... .... u/s......... ...registered at SV & ACB Police Station ................, it is revealed that there are reasonable grounds to question you to ascertain facts and circumstances from you, in relation to the present investigation. Hence you are directed to appear before me at am/pm on at Police Station.

You are directed to comply with all and/or the following directions :-

(a) You will not commit any offence in future.

(b) You will not tamper with the evidences in the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 2 of 11 Signing Date:06.05.2022 16:36:38 case in any manner whatsoever.

(c) You will not make any threat, inducement, or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing, such facts to the court or to the police officer.

(d) You will appear before the Court as and when required/directed.

(e) You will join the investigation of the case as and when required and will cooperate in the investigation.

(f) You will disclose all the facts truthfully without concealing any part relevant for the purpose of investigation to reach to the right conclusion of the case.

(g) You will produce all relevant documents/material required for the purpose of investigation.

(h) You will render your full co-

operation/assistance in apprehension of the accomplice.

(i) You will not allow in any manner destruction of any evidence relevant for the purpose of investigation/trial of the case.

(j) Any other conditions, which may be imposed by the Investigating Officer/SHO as per the facts of the case.

Failure to attend/comply with the terms of this Notice, can render you liable for arrest under Section 41A(3) and (4) of CrPC.

[Signature] [Name and Designation] [affix seal] ..................................................................

Sr.No ..........

In compliance with the abovementioned Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 3 of 11 Signing Date:06.05.2022 16:36:38 notice dated ........ issued under Section 41A CrPC, the Noticee has appeared on ..... from to ........ That the Noticee's presence has been recorded in the register to be maintained by the Police Station .......

This acknowledgement is being issued in compliance with Section 41A CrPC. The documents produced by the noticee have duly been seized vide seizure memo/production memo (copy enclosed).

The noticee undertakes to continue to comply with any further notices that she/he may receive during the course of the present investigation.

[Signature of Accused] [Signature of IO] "

(ii) The concerned suspect / accused person will necessarily need to comply with the terms of the notice under section 41 A and attend at the requisite time and place.

(iii) Should the accused be unable to attend at the time for any valid and justifiable reason, the accused should in writing immediately, intimate the investigating officer and seek an alternative time within a reasonable period, which should ideally not accede a period of four working days, from the date on which he / she were required to attend, unless he is unable to show justifiable cause for such non-attendance.

(iv) Unless it is detrimental to the investigation, the police officer may permit such rescheduling, however only for justifiable causes to be recorded in the case diary. Should the investigating officer believe that such extension Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 4 of 11 Signing Date:06.05.2022 16:36:38 is being sought to cause delay to the investigation or the suspect / accused person is being evasive by see/ring time, (subject to intimation to the SHO / SP of the concerned Police Station), deny such request and mandatorily require the said person to attend.

(v) A suspect / accused on formally receiving a notice under section 41A CrPC and appearing before the concerned officer for investigation / interrogation at the police station, may request the concerned 10 for an acknowledgement.

(vi) In the event, the suspect / accused is directed to appear at a place other than the police station (as envisaged under Section 41A(1)CrPC}, the suspect will be at liberty to get the acknowledgement receipt attested by an independent witness if available at the spot in addition to getting the same attested by the concerned investigating officer himself.

(vii) A duly indexed booklet containing serially numbered notices in duplicate / carbon copy format should be issued by the SHO of the Police Station to the Investigating Officer. The Notice should necessarily contain the following details:

a Serial Number b Case Number c Date and time of appearance d Consequences in the event of failure to comply e Acknowledgment slip

(viii) The Investigating Officer shall follow the following procedure:-

Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 5 of 11 Signing Date:06.05.2022 16:36:38

a The original is served on the Accused/Suspect;

b A carbon copy (on white paper) is retained by the 10 in his / her case diary, which can be shown to the concerned Magistrate as and when required;

c Used booklets are to be deposited by the 10 with the SHO of the Police Station who shall retain the same till the completion of the investigation and submission of the final report under section 173 (2) of the Cr.P.C.

d The Police department shall frame appropriate rules for the preservation and destruction of such booklets.

(ix) Procedure booklets in format identical to the above prescription in guideline (vii) & (viii) with modifications having regard to the statutory provisions in the forms for the notices and acknowledgment shall be maintained.

(x) Failure on the part of the 10 to comply with the mandate of the provisions of the Cr.P.C and the above procedure shall render him liable to appropriate disciplinary proceedings under the applicable rules and regulations as well as contempt of Court in terms of the directions of the Hon 'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273.

(xi) Publicity should be undertaken and pamphlets educating the public at large, should be issued by the DCP of all Districts.

(xii) The above information should be displayed at prominent places in Police stations, the subordinate Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 6 of 11 Signing Date:06.05.2022 16:36:38 courts and the High Court and made available to with the State and District Legal Services Authorities, to inform the public of their rights and recourses available to them.

(xiii) Training programmes be specially formulated for Police Officers and Judicial Officers to sensitize them towards effective compliance of Section 41A, 91, 160 and 175 of the CrPC."

16. It is directed that the above procedure shall apply also to the working of Sections 91, 160 and 175 of the CrPC as well. The above procedure shall be mandatorily followed by the Delhi Police when working the requirements of all the above noted sections.

17. The respondent no.2 shall issue a circular forthwith upon receipt of a copy of this order directing the strict compliance of the procedure laid above, by every police personnel. The Circular shall be also posted on the official website of the Delhi Police and effective publicity given to ensure that the public is apprised of the procedure which has to be followed.

18. The necessary features of the Circular shall be prominently displayed at all police stations in English and vernacular to enable every person who visits the police station of the procedure which has to be followed.

19. The present writ petition is a laudable effort on the part of a petitioner who, though facing criminal prosecution, has opted to pursue larger public interest and to bring some transparency to the manner of police functioning.

Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 7 of 11 Signing Date:06.05.2022 16:36:38

2. This Court on 23.03.2022 in the instant contempt petition passed the following order:-

"3. A compliance affidavit dated 09.11.2021 has been filed by the Delhi Police. The relevant portion of the affidavit reads as under:-

"3. At the outset, it is respectfully submitted that pursuant to the directions issued in order dated 07.02.2018, in 'W.P.(C) No.7608/2017 of Division Bench of this Hon'ble Court, Delhi Police had issued a detailed Standing Order vide number 109/2019 specifying the procedure to be followed by the Investigating Officers while issuing Notices under sections 41-A, 91, 160, and 175 Cr.P.C. The copy of the Standing Order No. 109/2019 is annexed at Annexure A.

4. That subsequently, the Standing Order No. 109/2019 was modified incorporating therein some additional guidelines, such as precautions to be taken by the investigating officers to ensure personal safety of the persons summoned, conditions for serving of notices to children & women etc. and a revised Standing Order number 109/2020 was issued vide 0.B.I6/ RB/ PHQ, dated, 04.06.2020 and circulated to field formations for its meticulous compliance. The copy of the Standing Order No. 109/2020 is annexed at Annexure B."

4. It is stated by the learned counsel for GNCTD that steps are being taken to ensure that the directions passed by the Division Bench of this Court in W.P.(C) 7608/2017 is implemented throughout the NOT of Delhi.

5. Mr. Satyakam, learned ASC for GNCTD assures the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 8 of 11 Signing Date:06.05.2022 16:36:38 Court that the exercise has more or less been earned out and an affidavit stating that orders stands fully complied with will be filed within four weeks from today."

3. Apropos the said order, a compliance affidavit dated 02.05.2022 has been filed by Dr. Guriqbal Singh Sindhu, IPS, Deputy Commissioner of Police, Legal Division, PHQ. The relevant portion of the compliance affidavit reads as under:-

"3. That in compliance of the Hon'ble Court's aforesaid direction, it is respectfully submitted that pursuant to the directions issued in the Judgment, Delhi Police had issued a detailed Standing Order vide number 109/2020 specifying the procedure to be followed by the Investigating Officers while issuing Notices under sections 41 A, 91, 160, and 175 Cr.P.C. The copy of the Standing Order No. 109/2020 is annexed at Annexure A.

4. That the Standing Order No. 109/20 has already been uploaded on the official website of Delhi Police i.e. http://delhipolice.gov.in/standingorder. Screen Shot of the page of the website is annexed as Annexure-B.

5. That duly indexed booklets containing serially numbered notices U/s 41A, 91, 160 & 175 CrPC have been printed and distributed among the Districts and Investigating Units for issuing the notices.

6. That salient points (In English & Hindi) of the Judgment and Standing Order No. 109/20 to aware people about the procedure of issuing the notices, which has to be followed by the IDs, duly approved by CP Delhi, have been sent to DCsP Districts and Investigating Units vide letter No.29/P/HC/21/2404- 27/Court Cell (DA-IA)/PHQ, Dated 22.04.2022 with Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 9 of 11 Signing Date:06.05.2022 16:36:38 the instruction to prepare Notice Board and install the same in every police station/investigating units at conspicuous place visible to the public and thereby creating awareness. It has also been instructed that wide publicity should be undertaken and pamphlets be distributed educating the public at large. Copy of salient point of the procedure of issuing notices is annexed at Annexure-C. Letter of instructions to DCsP Districts and Investigating units is annexed at Annexure-D.

7. That the Notice Boards have been prepared and are being installed Police Stations of Delhi Police. Photograph of the notice boards installed some police stations are annexed at Annexure-E.

8. Pamphlets of salient points has also been prepared and are being distributed among the public to aware them. Copy of the pamphlet is also annexed at Annexure-F.

9. That further in order to aware people about the procedure, copy of the Judgment, dated 07.02.2018 passed in WT(C) No. 7608/2017, titled as Amandeep Johar Vs State" has been sent to the Member Secretary, DSLSA vide letter No. 29/P/HC/21/2431/Court Cell (DA-IA)/PHQ Dated 22.04.2022 with the request to take necessary steps to inform the public with regards to the rights and recourses available to them on receipt of notices U/s 41A, 91, 160 & 175 Cr.P.C. Copy of the letter is annexed at Annexure-G.

10. That Delhi Police had organized 8 courses, attended by 291 candidates, in 2020 and 10 courses, attended by 422 candidates, in 2021 to sensitize the IOs towards effective compliance of section 41A, 91, 160 & 175 CrPC. Further, the Director, Delhi Police Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 10 of 11 Signing Date:06.05.2022 16:36:38 Academy has been further requested vide letter No. 29/P/HC/21/2429/Court Cell (DA-IA)/PHQ Dated 22.04.2022 to organize regular training programmes for IDs to aware them about the procedure of issuing notices U/s 41 A, 91,160 & 175 CrPC. Copy of the letter to The Director, Delhi Police Academy is annexed at Annexure-H."

4. Learned counsel for the petitioner states that the compliance affidavit has been filed only after the petitioner initiated contempt proceedings and that unless and until sword of contempt was not wielded, the respondents did not comply with the directions of this Court.

5. Mr. Satyakam, learned ASC for GNCTD on instructions from Inspector Virja Nand Sammi, Legal Division PHQ who is present in Court assures this Court that continuous monitoring will be done by the respondent so that the orders of this Court are duly complied with. The assurance is taken on record.

6. The petition is disposed of along with pending application(s), if any.

SUBRAMONIUM PRASAD, J MAY 05, 2022 hsk Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA CONT.CAS(C) 662/2021 Page 11 of 11 Signing Date:06.05.2022 16:36:38

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Delhi High Court - Orders