Gujarat High Court
Rizwana Salim Shaikh vs State Of Gujarat & 6 on 6 April, 2015
Author: Anant S. Dave
Bench: Anant S. Dave, Sonia Gokani
R/SCR.A/677/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 677 of 2014
With
CRIMINAL MISC.APPLICATION NO. 3379 of 2014
In SPECIAL CRIMINAL APPLICATION NO. 677 of 2014
With
CRIMINAL MISC.APPLICATION NO. 5236 of 2014
In SPECIAL CRIMINAL APPLICATION NO. 677 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MS JUSTICE SONIA GOKANI
===========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ RIZWANA SALIM SHAIKH....Applicant(s) Versus STATE OF GUJARAT & 6....Respondent(s) ================================================================ Appearance:
MR MIG MANSURI, ADVOCATE for the Applicant(s) No. 1 Page 1 of 65 R/SCR.A/677/2014 CAV JUDGMENT MR SV RAJU Senior Advocate with MR BHADRISH S RAJU, ADVOCATE for the Respondent(s) No. 2 MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 3 MR AY KOGJE, ADVOCATE for the Respondent(s) No. 4 MR HL JANI APP with MR JK SHAH APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MS JUSTICE SONIA GOKANI Date : 06/04/2015 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) The petitioner has filed this petition under Article 226 of the Constitution of India with the following main prayers:
"[A] This Hon'ble Court be pleased to exercise the power under article 226 of the Constitution of India and further be pleased to issue writ of Habeas Corpus by directing the respondent Nos. 2, 3 and 4 to present corpus being petitioner's husband - SALIM SHABDALBHAI SHAIKH, who is presently illegal custody and detention of the respondent No.2, 3 and 4 and be pleased to record statement of the petitioner's husband SALIM SHABDALBHAI SHAIKH;
[B] That on being proved that the petitioner's husband is kept in illegal detention since 1322014 by the respondent Nos.2, 3 and 4 in violation of his fundamental rights guaranteed under Articles 21 and 22 of Constitution of India Page 2 of 65 R/SCR.A/677/2014 CAV JUDGMENT appropriate order of prosecuting the respondent No.2, 3 and 4 be passed by this Hon'ble Court".
2 Brief facts of the case are that husband of the petitioner was working as a Driver and since he met with an accident he left the job of driving and started working as an Agent of buying and selling secondhand vehicles with one Dineshbhai Darbar and Kiritbhai Darbar, who were buying secondhand motorcars and through the sale of vehicles, he used to earn about Rs.2,000/ to Rs.3,000/ p.m and the petitioner herself is doing household work as domestic servant in the locality.
2.1 That on 13.02.2014, after about 12:00 midnight, the respondent Nos.3 and 4 came to the house of the petitioner along with one Kiritbhai Darbar with whom petitioner's husband was working as an Agent. The petitioner's house was searched and nothing incriminating was found and when the petitioner inquired from the police personnel being the respondent Nos.3 and 4 as to the purpose of their visit and search in the house of the petitioner, the petitioner was informed that her husband was picked up from Railway Crossing at Sanand and he was detained at Crime Branch in connection with his involvement in theft of motor vehicles. The respondent Nos.3 and 4 informed Page 3 of 65 R/SCR.A/677/2014 CAV JUDGMENT the petitioner to bring tiffin twice a day from the next day for her husband in crime branch where he was detained.
2.2 On 14.02.2014 when the petitioner along with her sisterinlaw and son visited the Crime Branch Police Station where the petitioner found that her husband was brutally beaten by the respondent Nos.2, 3 and 4.
2.3 The petitioner states that the custody of Salim husband of the petitioner was neither shown on record nor Salim was not sent for medical examination as per the provisions of law and as per the law laid down by the Apex Court. The Crime Branch Police personnel informed the petitioner that the vehicles which were sold by Salim were theft vehicles and he was getting Rs.1,200/ to Rs.1,500/ on sale of each vehicle from Kiritbhai and Dineshbhai, who were actually purchasing the vehicles and selling them, which fact the husband of the petitioner does not know. The petitioner submits that the respondent No.3 has demanded illegal gratification of Rs.1,00,000/ to release husband of the petitioner.
2.4 In addition to the above, further affidavit is filed by petitioner on 03.03.2014 Page 4 of 65 R/SCR.A/677/2014 CAV JUDGMENT whereby she has stated on oath about the illegal and inhuman conduct of respondent police personnel on different dates viz. 13.02.2014, 14.02.2014, 15.02.2014, 16.02.2014, 17.02.2014 and 24.02.2014. Likewise another affidavit dated 03.03.2014 was filed by Sayarabanu Ashadhussain Saiyed, sister of the corpus, reiterating the same.
2.5 Accordingly, in the midnight of 13.02.2014 house of the petitioner was searched illegally and not only she was abused, but household items were ransacked. She was told that her husband was detained for involvement in illegal transactions of motor vehicles. She was threatened with dire consequences if she disclosed such incident to anyone and that her husband would be killed. On 14.02.2014 she had gone to the office of Crime Branch of Gaekwad Haveli, Ahmedabad along with her sisterinlaw to give tiffin for her husband and she was told to drop the tiffin at the entry point of the office of the Crime Branch. She further received a call around 6 O' clock in the evening on her mobile to deliver tiffin for her husband around 8:00 pm and she along with her neighbour Shilpaben had gone to the office of the Crime Branch and they were illtreated. While she was sitting by her husband she noticed that both the hands of her Page 5 of 65 R/SCR.A/677/2014 CAV JUDGMENT husband were swollen and he was not able to eat properly and when he was offered bottle of water he consumed it fully and again she was informed to bring tiffin on the next day and on the next day at 11:00am her husband complained of severe beating by the police personnel and headache. On 15.02.2014 again the petitioner went to the office of the Crime Branch at 11:30 along with her sisterinlaw to provide tiffin and she found her husband was handcuffed along with 5 to 6 persons and again she noticed that her husbands' hands were swollen and upon asking the police personnel about the same, they abused her and husband both. When her husband had completed his lunch, again she was informed to bring tiffin for dinner. In the evening around 7 O' clock she along with her neighbour Shilpaben were allowed to go on second floor of the office of the Crime Branch where she found her husband and 5 persons were handcuffed and were abused by police personnel. Salim, husband of the petitioner was given kick blows and upon complaining to the officer even the petitioner was abused. On the next day i.e. on 16.02.2014 the petitioner, her sisterinlaw and neighbourShilpaben went for delivering tiffin at 11:00 am at the office of Crime Branch and even on the next day same scenario was repeated about illtreatment of her husband and she noticed her husband and other two Page 6 of 65 R/SCR.A/677/2014 CAV JUDGMENT persons viz. Dinesh and his brotherinlaw handed over a packet to one Naushad containing cash and on counting the amount of Rs.3,00,000/, Naushad allowed Dinesh to leave the office of Crime Branch and the sisterinlaw of the petitioner was told to bring Rs.10 lakhs to get Salim released from the custody. At that time, sister inlaw of the petitioner expressed her inability to bring such huge amount as they were staying in a rented premise and thereafter the amount was reduced to Rs.3 lakhs. When she expressed her inability to pay even Rs.3 lakhs, she was threatened again with dire consequences and to involve her in false cases of supply of illegal arms and narcotic substances. Though they had gone to hand over the tiffin at 8:00 pm they were made to stay there till 12:00 in the night. She was informed by Shakeel that she should leave food for breakfast in security cabin on 17.02.2014 at 8:00 am for her husband. On 17.02.2014 she and in sisterinlaw again went to Crime Branch and kept breakfast and thermos of tea in security cabin. Later on, she came to know that her husband was neither given food on 16.02.2014 nor breakfast on 17.02.2014 morning. She again went to provide lunch around 11:30 and she was allowed to visit to her husband and before her husband could start eating, one officer having surname `Bhatt' slapped her Page 7 of 65 R/SCR.A/677/2014 CAV JUDGMENT husband and abused him and further threatened that he would be killed in an encounter since he had approached the High Court seeking certain directions. Even when she had gone along with her husband to Sola Hospital for medical checkup of her husband, pursuant to the order passed by this Court on 12.02.2014, a phone was received by her from one Chaudhary to withdraw the case or to face consequences.
2.6 The incident on 24.02.2014 is pertaining to statement to be recorded by the Officer of AntiCorruption Bureau, Shahibaug at Ahmedabad. Salim, husband of the petitioner also filed affidavit of even date, echoing grievance like his wife, in detail revealing torture and brutality of respondent Nos. 2, 3 and 4 and demanding illegal gratification for his release and even about abusing the court.
3 Before considering the case of respondents and affidavits filed by them, certain important orders passed by this Court are required to be reproduced. Order dated 17.02.2014 reads as under:
"1 Rule. Mr.H.L.Jani, learned APP waives notice of rule for respondent No.1.Page 8 of 65 R/SCR.A/677/2014 CAV JUDGMENT
2 This matter was mentioned at 11 O'Clock by the learned counsel Ms.Archna Amin with a request to take up at 2:30. When the urgency was inquired, she declared that since 13.2.2014 the husband of the petitioner Salim S.Shaikh is kept into the custody and wrongfully confined till today and therefore, the matter may be permitted to be circulated. Such permission was granted by prior intimation to the learned APP who was present at 11 O'Clock and he was asked to call for the instructions from the concerned Police Station.
3 At 2:30 the matter was taken up. The learned APP informed to the Court under the instructions of P.S.I. Shri T.R.Bhatt, Crime Branch, Ahmedabad, who was present in the Court that corpus Salim has not been arrested and he was called for interrogation and his statements were only recorded and he has not been kept in custody and he was released after his statements were recorded. When it was further inquired about any summons issued by the Crime Branch for recording of his statement or for interrogation, the learned APP declared under the instructions of the same officer that no summons were issued. It was also stated that if the Court desires, corpus can be produced before the Court.
4 At 4:45 the corpus is produced before the Court. When the Court inquired from the corpus, the corpus has stated that he has been severely beaten and he has shown contusion and abrasions and as per the corpus he was handcuffed. The corpus Page 9 of 65 R/SCR.A/677/2014 CAV JUDGMENT further stated that he would like to be examined through the Medical Officer. The corpus stated before the Court in presence of the APP that he was picked up by the Constable Shri Navsadbhai Usmanbhai bearing Buckle No.9643 and Constable Shri Sakil Ahmed Mehbubbhai bearing Buckle No.8756 and the corpus further declares before the Court in presence of the APP that together with him another person, namely, Kiritsinh Rana, Javedali Saiyed were picked up simultaneously. The corpus stated that Kiritsinh is asked to sit outside the Court room and he has also been severely beaten. He further stated that Javedali is still in custody.
5 The corpus further stated that in his pocket three summons dated 14.2.2014, 15.2.2014 and 16.2.2014 were inserted today before he entered the Court room by the same officer by stating that if the Court inquires, the same may be shown to the Court.
6 The original summons shall be taken in the safe custody of the Registrar (Judicial).
7 When the Court inquired about the medical examination, the corpus declared that he would like to be examined through the doctor. The Police Officer who has brought the corpus in view of the aforesaid situation cannot be assigned custody nor the examination of the corpus can be through them. Therefore, we direct Shri J.A.Bhila, High Court Security P.S.I. to remain present for the purpose of ensuring the proper medical examination of Page 10 of 65 R/SCR.A/677/2014 CAV JUDGMENT the corpus.
8 As the corpus has not been arrested he is free but with a view to see that he is properly examined and Court may be in position to pass further appropriate orders, if required, we direct J.A.Bhila, High Court Security P.S.I. to see that with the help of Police Inspector of Sola Police Station, the corpus is examined through the doctor of Sola Civil Hospital. The Certificate shall be produced by the Police Inspector, Sola Police Station tomorrow. After the medical examination is over, the corpus shall be free and he has been conveyed that he shall remain present tomorrow. It is also directed that no attempt whatsoever directly or indirectly shall be made by any officer of Crime Branch who are directly or indirectly involved in the matter to approach the corpus and if any attempt is made the same shall be seriously viewed.9 The other respondent Nos.2, 2 and 4
shall remain present before the Court tomorrow.
10 The copy of this order be given to Shri J.A.Bhila, High Court Security P.S.I. 11 The matter shall be listed tomorrow".
3.1 On 18.02.2014, this Court passed the following order:
"1. Pursuant to the order dated Page 11 of 65 R/SCR.A/677/2014 CAV JUDGMENT 17.02.2014, passed by this Court, corpus Salim was directed to be examined by Civil Hospital, Sola through the police officer of Sola police station and the sealed cover report is produced of medical examination. The said cover is opened and the report is taken on record. The report refers to the medical history, as was given before this Court, of assault by police officer with belt and fist blows and kick blows. The injuries mentioned, are part of the record in the certificate. The copy of the certificate shall be supplied to learned Public Prosecutor for the State record as well as in turn he will supply copy to respondent No.2, 3 and
4.
2. In our view prima facie two aspects appear, one for the illegal detention and wrongful confinement of the corpus Salim from 13.02.2014 till he was produced before this Court on 17.02.2014 at about 4:30 pm and the second is that, in spite of the declaration made before this Court that no summons were issued, the papers are subsequently shown as in possession of the corpus. As per the corpus, when he was just outside the Court, they were inserted in his pocket. If no summons were issued, as declared by learned P.P. under the instructions of very officer Mr.T.R.Bhatt, such could not have been found from the pocket of the corpus and if any attempt is made to fabricate the record and to make it a cover up the case, apart from the aspects that such would be an offence punishable under I.P.C., it may also be an attempt to fabricate the document so as to misguide the Court or to create platform for finding a defence in the Court proceeding which may attract action under Page 12 of 65 R/SCR.A/677/2014 CAV JUDGMENT the Contempt of Courts Act.
3. We do not propose to conclude the aforesaid two aspects at this stage and it would be appropriate to give opportunity to the officer concerned who are joined as respondent No.2, 3 and 4.
4. It also prima facie appears that as it is a matter pertaining to an illegal detention or wrongful confinement of any citizen without there being any authority under the law for arrest or otherwise and as it is also a matter pertaining to an action by the respondent No.2 pertaining to the so called summons, we find that the highest authority In charge of the Crime Branch in the city as well as the highest authority of the Home Department of the State would be required to be impleaded as party. This Court would also require the report from both the authorities as to what action the State is contemplating against the officer concerned and also further action by way of remedial measure.
5. It also deserves to be recorded that the aforesaid aspect is coupled with the allegation of the petitioner that the illegal gratification of Rs.1,00,000/ was demanded by respondent No.3 from the petitioner's sister inlaw Sayarabanu for releasing the petitioner's husband when he was in illegal detention or custody.
6. It has been stated by learned APP that the City Crime Branch is working under the Commissioner of Police, Ahmedabad City who is the head of the branch, therefore, the Commissioner of Police, Ahmedabad City and the Principal Secretary, Home Department of the State Government are directed to be impleaded as party respondent.
Page 13 of 65 R/SCR.A/677/2014 CAV JUDGMENT7. As there is further allegation of demand of illegal gratification, Director Anti Corruption Bureau (A.C.B.) shall also be joined as a party respondent.
8. The aforesaid newly added all the three parties shall examine the matter and shall report to this Court on or before 05.03.2014 as to what action the state as well as the higher authority is contemplating to take against respondent No.2, 3 and 4. As regards the other aspects, the parties may file appropriate affidavit which shall be considered at the later stage.
9. After getting the photocopy, the original medical certificate shall be kept in the sealed custody of the Registrar Judicial. Office shall supply photocopy of the certificate to the learned APP as well as to the learned advocate for the petitioner and shall also keep the photocopy of the medical certificate in the record of the present petition.
10. Mr.Jani, learned APP shall communicate the order to all the authorities. Office shall supply the copy of the order to learned APP.
11. S.O. to 06.03.2014 for passing further order".
3.2 On 06.03.2014, this Court passed the following order:
"1 As per the affidavit filed by the Additional Chief Secretary of the Home Department with the affidavit of the Page 14 of 65 R/SCR.A/677/2014 CAV JUDGMENT Commissioner of the Police Mr.Shashidhar, Joint Commissioner of Police is appointed as Inquiry Officer and inquiry report is being awaited but it appears from the various affidavits filed in Criminal Misc. Application Nos.3072 and 3379 of 2014 that there are threats received by the petitioner and the family members of the corpus in order to see that they may withdraw the proceedings or the truth may not come out. As such when the matter was heard for sometime in the first sitting it was conveyed to the learned APP that why the Court should not order for transfer of the respondent Nos.2, 3 and 4, who are said to have been involved in the incident of illegal custody and also for the demand of illegal consideration and further the aspect of fabrication of certain record. The learned APP in the second sitting has tendered a letter addressed by the Commissioner of Police to the Chief Election Officer requesting the transfer of the said officer outside Ahmedabad. The learned APP submitted that as the election programme is already declared without there being any approval of the Chief Election Officer, the Government may not be in position to effect transfer.
2 We may state that if the Government to take decision of his own, the question may arise for approval of the Chief Election Officer but if the Court has so directed and the Court order is to be implemented, the thing would stand on different footing and different consideration. We do not see any impediment in implementation of the Court order even if the process of election is on.Page 15 of 65 R/SCR.A/677/2014 CAV JUDGMENT
3 However, the learned APP submitted that there was no written order of the Court and therefore, the Commissioner of Police has moved the Chief Election Officer as per the oral direction. But if the Court passes the order it would enable the Government to pursue the matter at the earliest.
4 We may state that in view of our earlier order dated 17.2.2014 read with the order dated 18.2.2014 coupled with the aspect that the Inquiry Officer is appointed for holding inquiry and submit the report, in order to see that the inquiry is conducted in a free and fair atmosphere, it would be just and proper to direct the State Government to transfer all the three officers, namely, respondent Nos.2, 3 and 4 outside Ahmedabad on or before 10.3.2014 and the reporting shall be made to this Court on 11.3.2014.
5 The petitioner and the corpus have complained in Criminal Misc. Application No.3072 of 2014 that the vehicle Qualis bearing RTO No.GJ07AG2415 is taken over by the Police Officials in spite of the fact that the RTO record as per the AnnexureA to the said application is on the name of corpus. Whereas the learned APP under the instructions of Mr.H.K.Rathod, City Crime Branch, states that the vehicle is not recovered in connection with any case. Therefore, we direct the respondent No.5 to trace the vehicle and the reporting should be made to this Court as to whether possession is handed over if the vehicle is traced and if the vehicle is not traced appropriate action shall be taken and report shall be Page 16 of 65 R/SCR.A/677/2014 CAV JUDGMENT submitted on 11.3.2014. The respondent No.5 shall take appropriate action through all intelligence available with him.
6 The Director, ACB will be at the liberty to proceed for inquiry in accordance with the law and we find that the above referred order passed by us for transferring of the officers could also facilitate ACB to find out the truth for the demand of illegal gratification or not. On 11.3.2014 the action taken shall be reported to this Court. S.O. to 11.3.2014 for further order".
3.3 On 18.03.2014, this Court passed the following order:
"In all the applications Ms. Archana Amin has filed Leave Note and the petitioner is present and he states that as the mother of the Advocate is not well, she would not be available till 21.3.2014 and she may be available on 24.3.2014.
Learned APP, as per the communication received by him from the Commissioner of Police, states that about 15 days time may be required to complete the inquiry.
Hence, S.O. to 2.4.2014. The Inquiry shall be completed by that date and the report shall be produced before this Court."
3.4 On 02.04.2014, this Court passed the following order:
Page 17 of 65 R/SCR.A/677/2014 CAV JUDGMENT"1. Mr. Pandya, learned APP wanted to tender the copy of the report dated 02.04.2014 of the Assistant Director, AntiCorruption Bureau and another report of the Joint Police Commissioner addressed to the police Commissioner, Ahmedabad dated 31.03.2014. Both the reports shall be filed by appropriate affidavits within a period of one week from today. Copy shall be served to all the learned advocates appearing for the respective parties.
2. The petitioner as well as the other police officials if they wanted to meet with the report, they may do so within ten days from today. S.O. to 22.04.2014.
3. Apprehension of threat is voiced again today by Ms. Amin for her client. It has been stated that through some other persons threats are being given for which she would put it on record by way of appropriate affidavit. However, in order to see that the safety of the applicant is maintained, upon the suggestion given by learned APP on behalf of the police Commissioner, it is stated that if any threat is received by the applicant petitioner, it may be reported to Shri Jaideep Singh Jadeja, ACP M Division, Ahmedabad, having office at Juhapura, M Division and Mobile No.9409511000.
Direct service is permitted".
4 In the pending proceedings, several affidavits are filed by various officers. Dr. S.K.Nanda, Addl. Chief Secretary [Home Department], Government of Gujarat filed an Page 18 of 65 R/SCR.A/677/2014 CAV JUDGMENT affidavit dated 28.02.2014 assuring the Court of taking action in accordance with law against the erring officers, if at the end of the inquiry it is found that they are involved in any manner in the incident. In the above affidavit reference was made to the inquiry being conducted by the Joint Commissioner of Police, SectorII (Ahmedabad City) under supervision of Commissioner of Police, Ahmedabad City and about allegations of corruption, inquiry to be conducted by the Assistant Director, Anti Corruption, Gujarat State.
4.1 On 05.03.2014 Shri Shivanand Jha, Commissioner of Police, Ahmedabad City has also filed affidavit stating that inquiry has already been ordered and to be conducted by the Joint Commissioner of Police, SectorII, Ahmedabad City.
4.2 By affidavit dated 04.04.2014, the Assistant Director, AntiCorruption Bureau, Ahmedabad filed a detailed report in which first allegation of demanding Rs.10 lakhs, which was reduced to Rs.3 lakhs and ultimately agreed to pay Rs.1 lakh for releasing the husband of the applicant was partly proved. So far as second allegation regarding paying Rs.3 lakhs for release of Dinesh is concerned, same was held to Page 19 of 65 R/SCR.A/677/2014 CAV JUDGMENT be proved. Third allegation of demanding Rs.1 lakh by PSI, Shri Taral Bhatt is from the victim is concerned, the same is not proved and the fourth allegation of detaining Gafur and his two children in the alleged crime and demanding Rs.3 lakhs, is also not proved.
However, Assistant Director, ACB concluded that husband of the petitioner was involved in theft of 35 motor vehicles and in such circumstances levelling allegations against the police officers was natural, however, such statements are not to be trusted in toto. It was also concluded that allegations of petitioner are supported by her sisterinlaw and neighbour Shilpaben, but other five witnesses do not support their case and, therefore, such allegations can partially to be believed. The presence of Shri Taral Bhatt, PSI at the office of Crime Branch was not established and, therefore, allegations qua him are not to be believed. Though presence of Police Constable viz. Shakeelbhai and Naushadbhai is there at the alleged place, but their illegal demand of gratification are not proved in absence of any evidence. It was also stated that for conducting departmental inquiry and imposing major penalty, a communication was addressed to the Director General of Police, CID [Crime], Gandhinagar.
Page 20 of 65 R/SCR.A/677/2014 CAV JUDGMENT4.3 On 05.04.2014 an affidavit is filed by Shri Manoj Shashidhar, Joint Commissioner of Police [IPS], SectorII, Ahmedabad along with the detailed report concluding that though Shri Taral Bhatt, PSI has completed 5 years of service and performing duties at Crime Branch, he had not followed the procedure in accordance with law of making entry in station dairy and noting of interrogation and to that extent he remained negligent in performing his duties. However, written information [Samaj Yadi] note for summoning was given on 15th, 16th and 17th February, 2014 about statements to be recorded at Crime Branch, Ahmedabad, but no procedure was followed for 13th and 14th February, 2014 except oral explanation given by him.
4.4 On 21.04.2014 the corpus has filed affidavit in rejoinder to the affidavitinreply filed by Shri V.P. Vyas, Assistant Director of A.C.B., Ahmedabad on behalf of respondent No.6, reiterating and maintaining in detail what has been stated by him in the affidavit dated 03.03.2014. The corpus has also filed affidavit in rejoinder to the affidavit in reply of Shri Manoj Shashidhar, Joint Commissioner of Police on behalf of respondent No.5. By filing the above rejoinder affidavits, Shri Salim Shaikh, husband Page 21 of 65 R/SCR.A/677/2014 CAV JUDGMENT of the petitioner challenged even reports filed by the Assistant Director, ACB and Joint Commissioner of Police, respectively. He has also offered himself for brain mapping test and challenged documents submitted by erring police officials which were relied upon by authorities of respondent No.5. Even a categorical statement is made that he is ready and willing to undergo scientific test, but he stated that he has no trust in Scientific Laboratory viz. FSL, State of Gujarat and he requested that all such tests viz. lie detection and brain mapping and even narco analysis to be conducted by Central Forensic Laboratory at Hyderabad. Even inquiry conducted by Shri D.H.Desai, PI, ACB Police Station is also challenged on the ground that it was a futile exercise and wife and sister of the petitioners were asked to sign on certain statements recorded without proper explanation. That other persons, who were called at Crime Branch office have given their statements under threats and has further reiterated that Rs.3,00,000/ were received from wife and brotherinlaw of Dinesh Rana by Crime Branch Officials in his presence and wife of the petitioner was asked to pay Rs.10 lakhs. A further request is made to produce mobile record of police personnel and wife of Dinesh Rana in support of statement made by Salim on oath. That statement of Usmangani Mansuri, Advocate is also Page 22 of 65 R/SCR.A/677/2014 CAV JUDGMENT distorted and Salim has no trust in him in view of advocate visiting Crime Branch office frequently and having good relationship with police personnel. Even statement recorded of Rinkuba, wife of Dinesh Rana denying any payment made to police officers is doubted. He further stated that important documents like statements recorded by the police personnel, data of mobile record of concerned police personnel, CCTV camera footage, etc. were deliberately not produced and he requested for further inquiry in the matter.
4.5 In view of certain categorical statements made by husband of the petitioner, once again Assistant Director, ACB, Ahmedabad submitted detailed affidavit dated 06.05.2014 along with record including communication from the company maintaining CCTV footage record wherein it is stated that the record would only remain for 7 days, and he ultimately opined that that serious allegations made by the petitioner and her husband are found to be false.
4.6 Affidavit dated 06.05.2014 filed by the Assistant commissioner of Police MDivision, Ahmedabad City, in paras 15.1, 16 and 17 held as under:
"15. I respectfully say and submit that on Page 23 of 65 R/SCR.A/677/2014 CAV JUDGMENT inquiring about the allegations made by Shri Salim Shaikh and the application given by the constables : Shakeel and Naushad, there are independent witnesses, namely:
1] Rickshaw driver : Ibrahimbhai Rasulbhai 2] Mechanic : Nasiruddin Qutbuddin Ansari 3] Moinzudiin Rafiuddin 4] Mohammed Amin Dost Mohammed Pathan • That Nashruddin Ansari mechanic has stated that I10 car of Mohammed Salim Abdul Rashid [I.e. Salim Builder] was with him on 05/04/2014, from morning till aro9und 9:30 PM and that the car was not given to anybody during that time period.
• That per Moinzuddin and Mohammed Amin, on 05/04/2014 at around 9:30 PM, Mohammed Salim Abdul Rashid [I.e. Salim Builder] had red coloured activa, vehicle and I10 car was not with him at the relevant point of time.
• That the rickshaw driver also said that all the three [Naushad, Shakeel, Salim Builder] went to Vejalpur Police Station and the motorcyclist was abusing them by following them.
• That from the above stated aspects, there is no corroboration to the say of Shri Salim Shaikh that he was made to sit inside the car [GJ1KH3086] of Salim Builder.
• On the contrary factum regarding Shri Salim Shaikh on his bike following the rickshaw in which Naushad, Shake3el and Salimbhai Builder were travelled, and Shri Salim Shaikh was using abusive Page 24 of 65 R/SCR.A/677/2014 CAV JUDGMENT words is corroborated by the statements of independent witness viz. Ibrahimbhai Rasulbhai.
16 I respectfully say and submit that electronic evidence is also collected during the course of investigation:
• With regard to alleged place of incident i.e. being the Rehman tea stall, near Royal Akbar Tower, the nearby ATM of Bank of India has CCTV Cameras installed by which the footings dated 05/04/2014 are collected.
• On seeing the CCTV footage of Rehman Tea Stall, it can be seen that on 05/04/2014, at 21:38 hours, Naushad and Shakeel were standing near the Rehman Tea Stall and during 21:55:50 hours Shri Salim Shaikh comes on his motorcycle, parks his motorcycle behind Naushad and Shakeel and after few seconds comes and has water at Rehman Tea Stall.
Thereafter at 21:58:00 hours, Shri Salim Shaikh on his bike follows the direction in which Naushad and Shakeel were going.
• Similarly on seeking the footage taken from CCTV of Bank of India, at 21:49:38 hours Naushad and at 21:50:18 hours Shakeel were seen moving from Rehman Tea Stall and Shri Salim Shaikh is seen on his bike.
• That it can be clearly seen inferred that Shri Salim Shaikh was following Naushad and Shakeel and hence it cannot be said that Shri Salim Shaikh was made to sit in I10 car and was threatened.
17 I respectfully say and submit that on Page 25 of 65 R/SCR.A/677/2014 CAV JUDGMENT the basis of thorough investigation carried out and after taking into consideration application given by the Constables viz.
Naushad and Shakeel at Vejalpur Police station, Application given by Shri Salim Shaikh, Statements of Witnesses, CCTV Footages, it is crystal clear that the allegations made by Shri Salim Shaikh against Naushad and Shakeel are baseless and as vague as it can be."
4.7 Likewise, the Joint Commissioner of Police SectorII, Ahmedabad City once again filed affidavit dated 06.05.2014 in response to the reply / rejoinder filed by Salim denying all counter allegations and asserting about careful verification of all available data and record and stated in paragraphs 18 to 21 as under:
"18. I respectfully say and submit the so far as the averments made in para23 of the rejoinder are concerned, I hereby deny the same. I further respectfully say and submit that perusal of the report itself goes to show that the deponent has not favoured or shielded any erring police officials and the report submitted by the deponent herein is just and proper.
19. I respectfully say and submit that so far as the averments made in para24 of the rejoinder are concerned, I hereby deny the same. I further respectfully say and submit that videography was done when the statements of Rizwanbanu and Salim Sabdarmiya Shaikh were recorded and that the initiative to videography was proactively taken by the deponent herein. I further say Page 26 of 65 R/SCR.A/677/2014 CAV JUDGMENT and submit that deponent herein has primarily relied upon the written and signed statement of all the witnesses for the purpose of inquiry. I further say and submit that if the videography is to be seen, the statement of Rizwanabanu is 20 minutes 55 seconds and thereafter Salim Sabdarmiya Shaikh statement is of 37 minutes and 5 seconds coming to a total of 58 minutes. It is respectfully submitted that the duration of the video cassette is of 60 minutes in SP mode and effective recording time available was 58 minutes since 2 minutes are kept blank in the beginning by the video recording person as per their standard practice. It is respectfully submitted that this duration is the technical limitation of video cassette and this duration has been fully utilized. It is also respectfully subm9ted that Salim Sabdarmia Shaikh's available video recording is at a continuous duration of 37 minutes and 5 seconds and it is not clear what extraordinary fact he wished to reveal that he could not reveal during more than 37 minutes of video recording. It is respectfully submitted that whatever has been done by the deponent is with bonafide and considering the technical limit of recording in a video cassette and hence, by no stretch of imagination, it could be assumed that there was premediated effort to deliberately stop the video recording. The petitioner also does not disclose what are the crucial and grave facts which he wanted to discloses and he has not included in his written statement which he has duly signed. I further say and submit that the petitioner has made a mischievous attempt to create a false impression that his statement was taken under duress. The deponent has relied upon the written and signed statement of all witnesses as the primary document for Page 27 of 65 R/SCR.A/677/2014 CAV JUDGMENT the purpose of his inquiry. In the case of all witnesses, statements were recorded and type on computer and printouts were taken. In the case of the petitioner too, the same procedure was followed an the typed statement was handed over to the petitioner and his entire statement fully read over to them and after satisfying himself, he has signed it.
20 I further say and submit that the statement of Salim Sabdarmiya Shaikh was recorded by the deponent herein on 04.03.2014. However, the petitioners raising grievance regarding the alleged censorship of videography on 21.04.2014 is also indicative especially as the petitioner had opportunities to raise this issue, it is indeed existed, before 21.03.201e on several occasions. Therefore, this is nothing but an afterthought and cooked up story with an ulterior motive and malafide intention to create prejudice regarding inquiry done by the deponent herein.
21 I further say and submit that in view of what is stated herein above, the deponent herein bas conducted a transparent and unbiased and independent inquiry. I further say and submit that the deponent herein has not favoured or shielded any erring officer as the deponent herein has come to the conclusion that there are procedural lapses on the part of the PSI Mr. Taral Bhatt".
4.8 Thus, as against the allegations of torture, brutality and inhuman treatment meted out to husband of the petitioner, the petitioner and her relatives on various dates are countered Page 28 of 65 R/SCR.A/677/2014 CAV JUDGMENT by preliminary inquiry / investigation carried out in detail by the Joint Commissioner of Police Commissioner, SectorII, Ahmedabad, Assistant Director of ACB and Assistant commissioner of Police M Division, Ahmedabad City along with record, opined that no illegality was noticed beyond what is stated in their reports.
4.9 Dr. S.K.Nanda, Additional Chief Secretary [Home Department], Government of Gujarat filed affidavit in reply dated 06.05.2014 inter alia stating that appropriate departmental actions will be taken against the respondent Nos.2, 3 and 4 with regard to the allegations and charges which have been found to be correct at the conclusion of the inquiries conducted by Shri Manoj Shashidhar, Joint Commissioner of Police, SectorII, Ahmedabad and Shri V.P.Vyas, Assistant Director - ACB. With regard to allegations of custodial torture and illegal detention, Dr. S.K.Nanda stated that the Home Department, Government of Gujarat is of the view that the Gujarat Police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it and since the police are essentially a law enforcing agency they should enforce the law firmly and impartially, without fear or favour, malice or vindictiveness and should recognize and Page 29 of 65 R/SCR.A/677/2014 CAV JUDGMENT respect the limitations of their powers and functions.
4.10 Shri Taral R. Bhatt, PSI, respondent No.2 herein filed affidavit in reply dated 06.05.2014 denying all the allegations made by the petitioner and her husband. Shri Taral Bhatt in his affidavit stated that Salim was called to the office of Crime Branch by him for questioning on 13.02.2014 in connection with theft of four wheel vehicles. He asked Salim about the vehicles for some time and asked whereabouts of Kiritsinh and Salim replied that Kiritsinh was staying at Bopal and thereafter Salim shown the residence of Kiritsinh and accordingly Kiritsinh was also called to the police station. Thereafter, Salim and Kiritsinh were called to Crime Branch on 14.02.2014. On 14.02.2014 Salim again came to the office of Crime Branch and on being asked informed respondent No.2 that he had sold vehicles at various places and on the basis of the said information, the respondent No.2 and his team visited various places where the vehicles were sold by Salim and Kiritsinh Rana, who along with his brother Dineshsinh were present at the office of Crime Branch. He further stated that Salim and Kiritsinh were explained to remain present on the next day and were given "samaj yadi" wherein Kiritsinh signed Page 30 of 65 R/SCR.A/677/2014 CAV JUDGMENT and Salim put his thumb impression. Accordingly, till 17.02.2014 the husband of the petitioner and Kiritsinh were called to the office of Crime Branch and were given "samaj yadi". However, on 17.02.2014 the petitioner has filed the present petition. The respondent No.2 in his affidavit vehemently denied about beating Salim - husband of the petitioner and demanding illegal gratification. The respondent No.2 further stated that on the contrary Salim was cooperative with the respondent police personnel and, therefore, there was no question of beating / torturing him.
4.11 Shri Naushadali Usmanali Kadri, Constable, Crime Branch, Gaekwad Haveli, respondent No.3 has also filed affidavit in reply on 06.05.2014 taking almost similar stand taken by the respondent No.3.
5 In the above backdrop of disputed facts of the case, Shri Mansuri, learned counsel for the petitioner would contend that categorical statements made on oath by the petitioner, her husband, sisterinlaw [Sayarabanu] of the petitioner and neighbour [Shilpaben], who had gone to the office of the Crime Branch at Gaekwad Haveli, Ahmedabad and what is recorded by this Court initially in the order dated 17.02.2014 Page 31 of 65 R/SCR.A/677/2014 CAV JUDGMENT coupled with a medical certificate dated 17.02.2014 about nature of injuries mentioned by Medical Officer, General Hospital, Sola, Ahmedabad upon examination of the corpus, a case is made out to accept prayers of the petitioner, which include to take action in accordance with law against the respondent police personnel by prosecuting them and awarding compensation to the victim for torturing brutally the corpus while in illegal detention in the office of the Crime Branch and further to take action under Contempt of Courts Act for showing utter disregard to the process of law viz. abusing the court, submitting false documents so as to mislead this Court, etc. It is further submitted that in a case of illegal detention and torture of a person at the hands of police personnel, ordinarily no direct evidence would appear on record and has to be considered on facts and circumstances and upon overall perspectives about inhuman behaviour of police personnel. While extensively referring to various affidavits and rejoinders filed by the petitioner and her husband, learned counsel would further contend that inquiries / investigations carried out by the Assistant Director, ACB, Joint Commissioner of Police and Assistant Commissioner of Police, MDivision, Ahmedabad City did mention correct facts and reports are submitted only with a view to favour the police personnel of Crime Page 32 of 65 R/SCR.A/677/2014 CAV JUDGMENT Branch and virtually exonerating them.
5.1 It is next contended that though details and particulars are given by the petitioner and her husband about instances of brutality on different dates and places committed in presence of persons, who were called for interrogation in Crime Branch, but later on due to threats administered by police officers, they denied any kind of torture or acceptance of bribe, which needs indulgence of this Court by controlling and monitoring further investigation. It is further submitted that the actual material ought to be brought on record during the course of inquiry / investigation so suggested by the petitioner is not brought on record. It is further submitted that in any case of the matter one aspect is clear that the husband of the petitioner was detained illegally since 13.02.2014 and kept in custody even during night time till this court ordered release of the corpus, which clearly amounts to breach of Article 21 of the Constitution of India depriving the corpus of his right to life and liberty without following any procedure of law. Even what is envisaged under Sections 41, 41A to 41D and Sections 54 and 55A are to be followed by the respondent police officers and all the norms and procedure are given a gobye and the petitioner is subjected to Page 33 of 65 R/SCR.A/677/2014 CAV JUDGMENT torture and inhuman treatment. Even the report submitted by the Joint Commissioner of Police reveals that Shri Taral Bhatt has not followed any procedure of issuing summons / notices on 13/14.02.2014 and found him negligent in performance of his duties.
5.2 In support of his submissions, learned counsel for the petitioner has placed reliance on the following decisions of the Apex Court:
[i] D.K.Basu vs. State of W.B. Reported in (1997)1 SCC 416, more particularly, the directions and guidelines contained in para 35 of the above judgment. That such requirement are to be followed in all cases of arrest or detention as preventive measures.
[ii] Smt. Nandini Satpathy vs. P.L.Dani reported in AIR 1978 SC 1025 to point out right of accused in case of custodial interrogation.
[iii] Joginder Kumar v. State of U.P. Reported in AIR 1994 SC 1349(1) - right of arrestee to have someone informed about his arrest and to consult privately with lawyer are fundamental rights guarantee under Articles 21 and 22 of the Constitution of India.
Page 34 of 65 R/SCR.A/677/2014 CAV JUDGMENT5.3 It is further submitted that since the petitioner is detained and arrested illegally under the guise of interrogation, all the above decisions would be applicable to the facts of the case. Accordingly, it is submitted that prayer of the petitioner be accepted and order be passed accordingly.
5.4 Shri S.V.Raju, learned Senior Advocate, appearing with learned counsel Shri Bhadrish S. Raju, learned counsels Shri A.Y.Kogje and Shri Hriday Buch for the respective respondents would contend that averments made in the petition filed by the petitioner about alleged illegal detention, torture and inhuman conduct of police personnel of Crime Branch are not only baseless, but also actuated with malafide intention. It is further submitted that the husband of the petitioner is involved in more than 35 four wheeler theft cases and his interrogation was necessary as widespread theft cases of nature of "Organized Crime" directly affecting the public at large was to be investigated by the Crime Branch. It is submitted that the husband of the petitioner is playing a key role in that organized crime and the modus operandi has come to light during the investigation right from theft of the car till selling the theft vehicle with the R.C. Book as if the vehicle is genuine Page 35 of 65 R/SCR.A/677/2014 CAV JUDGMENT to innocent persons.
5.5 That record also reveals that no such torture or brutality, alleged by the petitioner on her husband was ever committed and after giving proper intimation and explanation "samaj yadi", the husband of the petitioner was called for interrogation in accordance with law. It is further submitted that there is no breach of any provisions of Chapter V - Arrest of Persons, including newly inserted Section 41A to 41D, 50, 50A of Criminal Procedure Code, 1973. Shri S.V.Raju, learned Senior Advocate would contend that inquiry made in detail by the highranking police officers viz. Joint Commissioner of Police, SectorII, Ahmedabad City; Assistant Director of ACB; and Assistant Commissioner of Police, MDivision, Ahmedabad City would reveal that all allegations are baseless and frivolous in absence of any material to suggest about the involvement of respondent No.2 in the alleged crime. It is further submitted that even Medical Examination of Salim - husband of the petitioner on 17.02.2014 pursuant to the order passed by this Court reveal no such injury, as alleged by the petitioner and her husband except presence of diffuse tender swelling over left forearm which also cannot be attributed to any kind of beating by respondent No.2.
Page 36 of 65 R/SCR.A/677/2014 CAV JUDGMENT5.6 It is further submitted that persons who were named by the petitioner and others who were present at the office of Crime Branch have also not supported the case of the petitioner and it stands confirmed in various reports submitted before this Court. According to learned counsel for the respondent No.2 when husband of the petitioner was not detailed illegally, contrary to law and was only called for purpose of making an inquiry, it cannot be said that he was illegally detained warranting any interference by this Court, as suggested and prayed by the petitioner either for taking any action against the respondent police officers or awarding compensation and taking action under Contempt of Courts Act.
5.7 Shri S.V.Raju, learned Senior Advocate, has extensively relied on the affidavits filed by respondent No.2, reports submitted by high ranking police officers and other attending circumstances to show that case of the petitioner does not require any acceptance and deserves to be rejected.
5.8 Learned counsels for the respondents relied on the decisions of the Apex Court in the case of Sube Singh v. State of Haryana reported Page 37 of 65 R/SCR.A/677/2014 CAV JUDGMENT in (2006)3 SCC 178 and submitted that when disputed facts arise and apparently no evidence appears about alleged brutality or custodial violence except statement of person aggrieved and where such allegation is not supported by any medical report or other corroborative evidence or where there are clear indications that the allegations are false or exaggerated, fully or in part, in such cases, the aggrieved party is to be relegated to traditional remedies available under civil / criminal law.
6 Shri H.L.Jani, learned APP appearing for the respondent - State of Gujarat would contend that in two affidavits filed by Dr. S.K.Nanda, Additional Chief Secretary, Home Department, State of Gujarat, assurance is given to take action in accordance with law against erring officer, if he is found guilty and reports submitted by the Joint Commissioner of Police, Assistant Director of ACB and Assistant Commissioner of Police MDivision do not implicate respondent police personnel except to the extent that the respondent No.2 remained negligent in performance of duty and not followed procedure for summoning the husband of the petitioner for interrogation.
6.1 It is further submitted that the whole Page 38 of 65 R/SCR.A/677/2014 CAV JUDGMENT case of the petitioner is based on no evidence and record reveal his involvement in more than 35 cases of theft of fourwheelers and similar offences. However, it is submitted that apropos the affidavits filed by the Secretary Home Department, State of Gujarat, action in accordance with law will be taken if so directed by this Court.
7 In continuation of appreciating rival pleadings about alleged brutality and torture of the husband of the petitioner, we may look into submissions made by the learned counsels for the parties respectively about the legality and validity of summoning husband of the petitioner in breach of provisions of Section 41A to 41D of the Code. The provisions of Section 41A to 41D of the Code, read as under:
"Chapter V : Arrest of persons "41. When police may arrest without warrant xxxx 41A. Notice of appearance before police officer. (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has Page 39 of 65 R/SCR.A/677/2014 CAV JUDGMENT committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."
41B. Procedure of arrest and duties of officer making arrest Procedure of arrest and duties of officer making arrest. Every police officer while making an arrest shall
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
Page 40 of 65 R/SCR.A/677/2014 CAV JUDGMENT(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
41C. Control room at districts. (1) The State Government shall establish a police control room (a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.
41D. Right of arrested person to meet an advocate of his choice during interrogation. When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation".
7.1 That provisions of Section 41A to 41D are inserted by Act 5 of 2009 with effect from 01.11.2010 and subsequently subsections (1) and Page 41 of 65 R/SCR.A/677/2014 CAV JUDGMENT (4) of Section 41A were again amended by Act, 41 of 2010 with effect from 01.11.2010. Thus, Section 41A mandates that police officer shall in all cases where the arrest of a person is not required under the provisions of subsection (1) of section 41 i.e. about arresting a person without warrant by the police, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed noncognizable offence to appear before the police officer or such other place as may be specified in the notice and if such notice is issued to any person, it is obligatory upon such person to comply with the terms of the notice laid down in subsection (2) of Section 41A.
7.2 Subsection (3) provides that if a noticee complies and continues to comply with the notice, he shall not be arrested in respect of offence referred to in the notice unless, for reasons to be recorded and that police officer is of the opinion that such person ought to be arrested. Thus, if a noticee cooperates with the police officer, in respect of offence referred to in the notice, arrest is to be avoided and only if the police officer is of the opinion that Page 42 of 65 R/SCR.A/677/2014 CAV JUDGMENT arrest is inevitable by recording reasons only arrest may be affected. Therefore, inbuilt safeguards are provided to noticee under Section 41A of the Code, 1973. That the moment arrest is effected, duty is cast upon the police officer making such arrest as laid down in Section 41B
(a) (b) (c) of the Code.
7.3 That subsection (1) of Section 41A empowers police office to issue notice and call any person only to appear before him and that cannot be termed as interrogation, as it is understood and followed after arrest, as provided under Section 41D which provide right of arrested person / arestee to meet an advocate of his choice during interrogation and the interrogation mentioned in Section 41D is preceded by arrest. So presence of the advocate of choice of a person would be available to an arrested person for interrogation.
Thus, newly inserted and amended Sections 41A to 41D take care of certain directions and guidelines issued by the Apex Court in the case of D.K.Basu [supra] as recorded in the order dated 18.02.2014 by this Court in para 2, prima facie, two aspects appeared, one of the illegal detention and wrongful confinement of the corpus - Salim from 13.02.2014 till he was Page 43 of 65 R/SCR.A/677/2014 CAV JUDGMENT produced before the Court on 17.02.2014 at about 4:30 pm and second is that in spite of the declaration made before the Court that no summons were issued, the papers were subsequently shown as in possession of the corpus. Therefore, inquiries were ordered by the Court accordingly and reports were submitted. That the Joint Commissioner of Police, Ahmedabad City has found certain procedural lacuna and negligence in performance of the duty by the respondent NO.2, but nothing has come on record as such of detaining or confining the corpus illegally except that he was asked and given understanding to appear before the Crime Branch in connection with the suspected organized crime. Thus, in absence of clear material on record about illegal detention or confinement of the corpus, it is not possible for the court to exercise powers under Article 226 of the Constitution of India for awarding compensation by way of public law remedy. However, directions and guidelines contained in para 35 in the case of D.K.Basu [supra] are applicable not only in the case of arrest, but also in case of illegal detention. So applicability of directions and guidelines contained in para 35 in the case of D.K.Basu [supra] will have to be decided in the facts and circumstances of each case viz. when powers are invoked or exercised by concerned police officer Page 44 of 65 R/SCR.A/677/2014 CAV JUDGMENT under Section 41A of the Code, 1973. It is not open for the police officer to illegally detain a person under the guise of interrogation by invoking provisions of Section 41A of the Code and in breach of mandatory requirement under Section 41A of the Code viz. issuance of notice in view of use of word `shall' to a person to appear against him when [a] a reasonable complaint has been made; or [b] a credible information has been received; or [c] a non reasonable suspicion exists that he has committed a cognizable offence and upon satisfaction of police officer about existence of above parameters / premises only a person is to be summoned by following procedure. Otherwise, breach of inbuilt safeguards provided to noticee under Section 41A of the Code, 1973 flowing from the fundamental rights under Articles 21 and 22 guaranteed under the Constitution of India and breach of directions and guidelines contained in the case of D.K.Basu [supra] and would amount to illegal detention.
7.4 It may not be out of place to refer to a case law reported in 2014 AIR SCW 3930 in the case of Arnesh Kumar v. State of Bihar in the context of sentence provided under Section 498A of the IPC and under Section 4 of the Dowry Page 45 of 65 R/SCR.A/677/2014 CAV JUDGMENT Prohibition Act, the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Code for effecting arrest be discouraged and discontinued. Further reference was also made to Section 41A of Code, which is aimed to avoid unnecessary arrest or threat of arrest looming large on accused, in para 14 issued following directions:
"14 Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
[1] All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
[2] All police officers be provided with a check list containing specified sub clauses under Section 41(1)(b)(ii);
[3] The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
[4] The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its Page 46 of 65 R/SCR.A/677/2014 CAV JUDGMENT satisfaction, the Magistrate will authorise detention;
[5] The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
[6] Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
[7] Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
[8] Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The Apex Court, further directed that directions contained in para 14 shall also apply where offences punishable with imprisonment for term which may be less than 7 years or which may extend to 7 years where with or without fine and, therefore, law laid down by the Apex Court in the above case is also to be born in mind by the police officer exercising powers either under Page 47 of 65 R/SCR.A/677/2014 CAV JUDGMENT Section 41 and/or Section 41A of the Code. The Apex Court in para 15 of the above judgment, held as under:
"15. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine".
7.5 The medical certificate issued by Dr. K.M.Patel, Medical Officer, General Hospital, Sola, Ahmedabad dated 17.02.2014, reflects the injuries of the corpus, which reads as under:
"Nature of injury : Diffuse tender swelling c -
underlying contusion present over anteromediac aspect of left forearm - middle part size 13 x 6 cm - bluishblack in colour.
Cause of injury :
Period of recovery:
Age of injury :
Patient referred to surgical & orthopedic Page 48 of 65 R/SCR.A/677/2014 CAV JUDGMENT departments - advised Xrays.
Patient was seen by Dr. Harshad - SuI & treated accordingly & advised for following.
Patient was seen by Dr. Nevil - Ortho & advised follow u p & treated accordingly. X - Ray no. 8429 to 35 & 8436.
Reporting Normal xray skull, LS - spine Left hand, both foot, left leg & left forearm".
That a perusal of the injury certificate of the corpus needs a detailed probe even by examination of doctor, if necessary that such injuries could be attributable to alleged torture and brutality or otherwise for which a different procedure is to be followed by the petitioner and the corpus. The corpus is set at liberty by order dated 17.02.2015 by the Court, a writ of habeas corpus is discharged accordingly.
7.6 The law laid down by the Apex Court in the case of Sube Singh [supra] will aptly apply to the facts and circumstances of the case on hand. It is held by the Apex Court that in cases where violation of Article 21 of the Constitution involving custodial death / torture is established or is incontrovertible, the writ court exercising powers under Article 32 or 226 of the Constitution of India, as the case may be, award compensation, but where there is no evidence, custodial torture except statement of Page 49 of 65 R/SCR.A/677/2014 CAV JUDGMENT person aggrieved and such allegation is not supported by any medical report or corroborative evidence [including visible marks / scars] and claim for allegations are false or exaggerated fully or in part, the person aggrieved can take recourse to any civil and/or criminal action as deemed proper. Even the Apex Court revisited earlier decision, including the decision in the case of D.K.Basu [supra] and questions to be considered before awarding compensation as public law remedy and quantum of compensation would depend on facts and circumstances of each case and while considering whether compensation should be awarded for violation of Article 21 of the Constitution of India, the Apex Court after prefacing various case laws on the subject held in paras 40 to 46, as under:
"40. In M.C.Mehta vs. Union of India [1987(1) SCC 395, a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 32, observed thus : "We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We Page 50 of 65 R/SCR.A/677/2014 CAV JUDGMENT are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. .... If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the Page 51 of 65 R/SCR.A/677/2014 CAV JUDGMENT civil court for claiming compensation."
(emphasis supplied) 41 In Nilabati Behera (supra), this Court put in a word of caution thus: "Of course, relief in exercise of the power under Article 32 or 226 would be granted only (when) it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ....Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and selfrestraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law."
(emphasis supplied) 42 In D. K. Basu (supra), this Court repeatedly stressed that compensation can be awarded only for redressal of an established violation of Article 21. This Court also drew attention to the following aspect :
"There is one other aspect also which needs our consideration. We are Page 52 of 65 R/SCR.A/677/2014 CAV JUDGMENT conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scotfree without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself."
[Emphasis supplied] Page 53 of 65 R/SCR.A/677/2014 CAV JUDGMENT 43 In Shakila Abdul Gafar Khan v.
Vasant Raghunath Dhoble [2003 (7) SCC 749] and Munshi Singh Gautam v. State of M.P. [2005 (9) SCC 631], this Court warned against nongenuine claims:
"But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence."
44 In Dhananjay Sharma vs. State of Haryana [1995 (3) SCC 757], this Court refused compensation where the petitioner had exaggerated the incident and had indulged in falsehood. This Court held :
"54. Since, from the report of the CBI and our own independent appraisal of the evidence recorded by the CBI. we have come to the conclusion that Shri Dhananjay Sharma and Sushil Kumar had been illegally detained by respondents 3 to 5 from the afternoon of 15.1.94 to 17.1.94, the State must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers for violating their indivisible fundamental right of Page 54 of 65 R/SCR.A/677/2014 CAV JUDGMENT personal liberty without any authority of law in an absolutely highhanded manner. We would have been, therefore, inclined to direct the State Government of Haryana to compensate Dhananjay Sharma and Sushil Kumar but since Sushil Kumar has indulged in falsehood in this Court and Shri Dhananjay Sharma, has also exaggerated the incident by stating that on 15.1.94 when he was way laid along with Sushil Kumar and Shri S.C. Puri, Advocate, two employees of respondents 6 and 7 were also present with the police party, which version has not been found to be correct by the CBI, they both have disentitled themselves from receiving any compensation, as monetary amends for the wrong done by respondents 3 to 5, in detaining them. We, therefore do not direct the payment of any compensation to them."
[Emphasis supplied] 45 Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, Page 55 of 65 R/SCR.A/677/2014 CAV JUDGMENT while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.
46 In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action".
Page 56 of 65 R/SCR.A/677/2014 CAV JUDGMENTThe Apex Court considered serious implications of custodial violence and further held in para 47, as under:
"47. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier para are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. In State of MP vs. Shyamsunder Trivedi 1995 (4) SCC 262, reiterated in ABDUL GAFAR KHAN and MUNSHI SINGH GAUTAM (supra),this Court observed : "Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available...... Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues..........
Page 57 of 65 R/SCR.A/677/2014 CAV JUDGMENT....The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case....., often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lockup, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."
[emphasis in original and reemphasised] That for improvement of the general impression about the conduct of the police in the minds of public, the Apex Court accepted three wings of the Government to encourage, insist and ensure thorough scientific investigation and proper legal procedures, followed by prompt and efficient prosecution, the Apex Court in paras 48 and 49 held as under:
Page 58 of 65 R/SCR.A/677/2014 CAV JUDGMENTImproving the present situation
48 Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to thirddegree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes. The expectation of quick results in high profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public.
Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If Page 59 of 65 R/SCR.A/677/2014 CAV JUDGMENT police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.
49 Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurrences. Following steps, if taken, may prove to be effective preventive measures:
a) Police training should be reoriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.
b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.
c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.Page 60 of 65 R/SCR.A/677/2014 CAV JUDGMENT
d) Simple and foolproof procedures should be introduced for prompt registration of first information reports relating to all crimes.
e) Computerization, videorecording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and antedating in regard to FIRs, Mahazars, inquest proceedings, Portmortem Reports and Statements of witnesses etc. and to bring in transparency in action.
f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.
The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, whitecollared crime, deteriorating law and order situation etc. In the facts of the above there was no clear or incontrovertible evidence about custodial torture, it was not found a fit case for awarding compensation.
7.7 Keeping in mind the declaration of law, Page 61 of 65 R/SCR.A/677/2014 CAV JUDGMENT as reproduced herein above and in the facts and circumstances of the case by and large allegations levelled by the petitioner and her husband on oath are equally controverted and disputed by affidavits filed by respondent Nos.2, 3, and 4 and even reports of inquiry pursuant to the orders passed by this Court filed by high ranking officers like Joint Commissioner of Police, Assistant Director of ACB and Assistant Commissioner of Police, MDivision, Ahmedabad City on oath supported by documentary evidence reveal that assertions about alleged brutality and custodial violence of husband of the petitioner cannot be said to be uncontroverted and established. However, the medical certificate dated 17.02.2014 issued by the Medical Officer, General Hospital, Sola, Ahmedabad reveal diffuse tender swelling - contusion over anteromediac aspect of left forearm and CT scan and xray reports do not show any other internal or external injuries. Whether injuries reflected in the medical certificate dated 17.04.2014 can be attributed to alleged torture and custodial violence can be examined by competent court, if proper complaint is filed and inquiry is initiated. But, awarding compensation by way of a public law remedy, in exercise of jurisdiction under Article 226 of the Page 62 of 65 R/SCR.A/677/2014 CAV JUDGMENT Constitution of India, we are not persuaded upon overall facts and circumstances of the case. However, it will be open for the petitioner to take appropriate civil and/or criminal actions, including approaching Human Rights Commission, State of Gujarat in accordance with law. At the same time, as per affidavit submitted by the Joint Commissioner of Police, forming an opinion that the respondent No.2 was negligent in performing duty and had not followed procedure for issuing notice to corpus for appearing before him with regard to information received in connection with involvement of the corpus in theft of fourwheeler vehicles for 13th and 14th February, 2014, we direct the competent authority respondent No.1 to take action in accordance with law including conducting departmental inquiry after furnishing copy of the reports and issuance of show cause notice to respondent Nos.2, 3 and 4, if deemed necessary on consideration and acceptance of reply.
7.8 That the conclusion of the report of the Joint Commissioner of Police, SectorII, Ahmedabad City prima facie reveals that respondent No.2 has not adhered to the procedure prescribed under Section 41A of the Code and the corpus is produced before this Court only after indulgence is shown by this Court upon issuance Page 63 of 65 R/SCR.A/677/2014 CAV JUDGMENT of notice and was set free accordingly. Therefore, we deem it just and proper to award costs of Rs.15,000/ to be paid by respondent Nos.2, 3 and 4 to the petitioner and accordingly the costs is quantified to the extent of Rs.15,000/. That other prayers made by the petitioner are nor accepted subject to directions contained in para 7.7 of this judgment.
7.9 The observations / findings of prima facie in nature made in this judgment are for the purpose of deciding the issues raised in this petition only and same shall have no bearing on any pending proceedings or the proceedings that may be initiated by the corpus or the petitioner or inquiry / investigation that is to be carried out by the investigating agency qua 35 pending complaints registered or unregistered against the petitioner. It goes without saying that none of the police personnel [respondent Nos.2 to 4] shall try to influence or interfere with such inquiry or investigation directly or indirectly or make any attempt to intimidate the corpus or petitioner in any manner whatsoever.
7.10 The original record viz. summons allegedly issued to husband of the petitioner and medical certificate dated 17.02.2014 kept in Page 64 of 65 R/SCR.A/677/2014 CAV JUDGMENT the custody of the Registry of this Court shall be kept as it is and as and when the above original papers are necessary or required for the purpose of any inquiry, investigation or proceedings by any authority / forum / court, a request may be made to the Registrar General of this Court to part with such record and by following due procedure the Registrar is empowered to do so.
8 In view of judgment and order passed in Special Criminal Application No.677 of 2014, no separate order on Criminal Misc. Application Nos.3379 of 2014 and 5236 of 2014 for directions, and accordingly both the applications stand disposed of.
(ANANT S. DAVE, J.) (MS SONIA GOKANI, J.) pvv Page 65 of 65