Gujarat High Court
Krishnaben W/O Chetankumar Vyas vs State Of Gujarat on 24 March, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/MCA/14/2022 ORDER DATED: 24/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 14 of 2022
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KRISHNABEN W/O CHETANKUMAR VYAS
Versus
STATE OF GUJARAT
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Appearance:
MR KSHITIJ M AMIN(7572) for the Applicant(s) No. 1,2
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1,2
for the Opponent(s) No. 2,3,4
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER for the
Opponent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 24/03/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. This contempt proceeding has been initiated against the respondents alleging that they are guilty of willful disobedience of the directions issued by the Hon'ble Apex Court in the matter of D.K.Basu vs. State of Bengal, reported in AIR 1997 SC 610 as well as Arnesh Kumar vs. State of Bihar, reported in AIR 2014 SC 2756 and have sought for punishing them in accordance with law.
2. On 26.12.2021, the first applicant and her son Gaurav were travelling on their moped and while Page 1 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 returning from Lal Darwaja at around 20.00 hours near Gurudwara, S.G.Road, Ahmedabad, the first applicant and her son were stopped by the 4th respondent on the ground that they are plying their vehicle on a one way (wrong side) and were called upon to pay a fine of Rs.1,500/-. It is stated that first applicant and her son pleaded with the Police Officer that they were not carrying the said amount and pleaded for returning home and to pay the fine was not accepted while her son waits at the place. It is alleged that respondent No.4 had used unparliamentary language and the first applicant was not permitted to leave the scene. It is further alleged that respondent No.4 started assaulting and abusing the first applicant and when her son sought to intervene and stop the same, he was also assaulted. At that point of time, the second applicant and her husband are said to have arrived at the scene and tried to reason out with the 4th respondent. They are also said to have been assaulted. The son of the first applicant is said to have been taken to Vastrapur Police Station and despite his effort to lodge the complaint against the 4 th respondent, on account of the pressure exerted by the Page 2 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 superiors of respondent No.4, the complaint which was sought to be lodged by the first applicant's son was not received and registered. It is further stated that applicants and accused Nos.1 to 3 were taken to Sarkhej Police Station having common building premises as that of S.G.Highway 2 Traffic Police Station and were illegally detained till the records reflected as having been arrested were written. It is further stated that the applicants were brutally assaulted and despite begging for medical treatment, same was not extended nor they were referred to any hospital.
3. Applicants further allege that respondent No.4 in order to circumvent and dodge his own wrong had registered an FIR being C.R.No.11191069210344 of 2021 with S.G.Highway 2 Division Traffic Police Station against the applicants and others for the offences punishable under Sections 332, 186, 323 and 294(b), 114 of IPC and Section 184 of the Motor Vehicles Act, 1988.
4. It is further alleged by applicants that they were arrested on 27.12.2021 at 03.00 hours by second Page 3 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 respondent which is illegal and in contravention of Section 46(4) of Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and there being no exceptional circumstances and without there being no prior approval of the superior officers, they could not have arrested. It is contended that arrest of the applicants did not meet the criteria prescribed under Section 41(1)(b)(ii) of the Cr.P.C. as indicated by the Hon'ble Apex Court in the cases of Arnesh Kumar and D.K.Basu referred to supra. Hence, contending that respondents in utter disregard of law and sans basic humanity were kept in custody and were produced before the Magistrate on 27.12.2021 at 17.00 hours upon which the applicants made complaint to the learned Magistrate of physical assault which was recorded by the learned Magistrate and all the accused including the applicants were referred to Civil Hospital for medical examination. It is stated that applicants had complained before the learned Magistrate about the ill-treatment, assault by the erring officials and on receiving the medical report, the learned Magistrate has ordered an inquiry and intimated the Page 4 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 jurisdictional District and Sessions Judge. It is stated that the applicants came to be enlarged on bail on 28.12.2021 and by referring to the records and proceedings of the learned Magistrate whereunder it is recorded that the version of the Police Authority of non-availability of CCTV footage is hard to be believed. A complaint is said to have been lodged before the Commissioner of Police, Ahmedabad, on 31.12.2021 explaining the circumstances which led to the assault of the applicants and proof of injuries having been sustained by them. Hence, applicants have sought for action being taken against the respondents.
5. On notice being ordered, the State was called upon to place the reports by our order dated 25.02.2022 whereunder this Court had directed the State to file the affidavit narrating the circumstances and events that have unfolded and to place on record the steps taken pursuant to the report of the Deputy Commissioner of Police, Traffic West, Ahmedabad City.
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C/MCA/14/2022 ORDER DATED: 24/03/2022
6. We have heard the arguments of Shri Kshitij M. Amin, learned counsel appearing for the applicants and Ms.Manisha Lavkumar Shah, learned Government Pleader appearing for the State and perused the affidavit filed by Shri Raju Bhargava, Additional Director General of Police, Technical Services and SCRB, Gujarat State. It is stated thereunder that on the basis of the report of the Deputy Commissioner of Police, Traffic West, following officers have been kept under suspension :
(1) Mr.A.M.Rathod, Police Inspector of S.G. Highway 02 Traffic Police Station, (2) Mr.V.S.Dhokadiya, and (3) Mr.Nileshbhai Arvindbhai Jadav, Lok Rakshak.
7. It is apt and appropriate to note the excerpts of the report of the Deputy Commissioner which is at Annexure-R3 dated 23.02.2022 which would disclose that statements of Sriyutha S.I. Dharmendrasinh Vikramsinh, Jayshriben Raisinhbhai, Woman Rakshak and Unarmed Lok Rakshak Vipulkumar Shabhabhai came to be recorded during the course of the inquiry conducted, Page 6 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 whereunder they have stated that on 26.12.2021 while they were on duty at Sarkhej Police Station as P.S.O./Rakshak from 20.00 hours to 24.00 hours and from 00.00 hours to 08.00 hours of 26.12.2021 and 27.12.2021, at that time Mr.V.S.Dhokadiya, PSI, had made a request report for arrest of Gaurav Chetankumar Vyas and Ravi Dhirajlal Joshi and as there was no lock-up in S.G. 02 Traffic Police Station, it was requested to keep these accused in Sarkhej Police Station lock-up and they were kept in lock-up and Station Diary Entry No.07 of 2021 at 05.25 hours was made. It is also stated that two female accused were made to sit in entry room (Swagat Kaksh) of the S.G. 02 Traffic Police Station and women employees were sitting there with them on Sofa. Same is the statement made by Diwansinh Hemantsinh, Batch No.5865, Sarkhej Police Station. The Deputy Commissioner also opined that arrestee ought to have been examined at the time of his arrest and major and minor injuries if any present on his or her body must have been recorded at that time and "Inspection Memo" should have been signed by both the arrestee and the Police Page 7 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 Officer effecting the arrest and copy of the same should have been provided to the arrestee which was not done and applicants were deprived of the immediate treatment. By referring to the circular of the Home Department, Government of Gujarat, dated 13.04.2006 which indicate that "no woman shall be arrested between time after sunset and before sunrise and if any one is to be arrested then Police Officer shall inform the Superior Officer and that too with prior permission and for that written reasons are required". It is also noticed in the report that under Section 46(4) of Cr.P.C, if a woman accused is to be arrested after sunset and before sunrise then permission of Chief J.M.F.C. is required which appears to have not been obtained in the instant case. As such, he has arrived at a conclusion that Mr.V.S.Dhokadiya had committed negligence. In fact, the Deputy Commissioner notices that the Police employee Nileshbhai Arvindbhai himself had admitted in his statement made before the Deputy Commissioner that there was altercation and physical assault between him and the accused and a case was registered at S.G. Highway 2 Traffic Police Station Page 8 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 bearing C.R.No. 11191069210344 of 2021 and inquiry is pending before the Chief Judicial Magistrate, Ahmedabad Rural, vide Inquiry No.28 of 2022. In fact the Inquiry Officer notices that Police Inspector Shri A.M.Rathod was present at the time of the incident and he had also failed to stop the incident and control his staff from using force against the applicants and has opined that delinquent officer appears to have committed great deviance and negligence in duty. As already noticed hereinabove, this report resulted in the suspension of three officers.
8. The applicants have sought for the CCTV footage by submitting an application on 28.12.2021 to the Commissioner of Police, pursuant to which a report was tendered before the jurisdictional Magistrate on 28.12.2021 namely hand-written note stating that no CCTV footage of the alleged place and time of incident was available. It is this note which perforced us to call upon the State to file the report as to the steps taken by the State in ensuring compliance of the directions issued in Writ Petition (PIL) No.200 of 2012 which was with Page 9 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 regard to installation of CCTV cameras at all police stations of the State of Gujarat. In compliance of the said directions, the measures undertaken by the respondents have been reported with regard to installation of CCTV cameras and it has been narrated in paragraphs 6 to 9 of the affidavit dated 15.03.2022 to the following effect :
"6. It is further submitted before this Hon'ble Court that a total of 7,327 CCTV cameras are installed at 619 police stations across the State of Gujarat. As per the daily report received on 10.03.2022, a total of 7,282 cameras are operational while 45 cameras are non-operational on account of reasons like technical difficulties, renovation and shifting of respective police stations etc. The contract for operation and maintenance of the said CCTV cameras is awarded to M/s. Godrej & Boyce Ltd., Ahmedabad and M/s. Wipro Infotech Ltd. It is further submitted that M/s. Godrej & Boyce Ltd., Ahmedabad is responsible for the maintenance of CCTV cameras installed at 365 police stations whereas M/s. Wipro Infotech Ltd., is looking after the maintenance of 254 police stations. The maintenance contract of M/s. Godrej & Boyce Ltd. Ahmedabad is in operation till March - 2023 whereas that of M/s. Wipro Infotech Ltd. is valid till April - 2023.
7. It is further submitted before this Hon'ble Court that across the State, around 9 to 10 cameras are installed at all Police stations supervised by Police Sub Inspector whereas,15 cameras are installed at police stations mannered by Police Inspectors. It is pertinent to note that, there are total 3 types of CCTV cameras viz. PTZ cameras stand for Pan Tilt Zoom (which rotates 360 o), Bullet Camera and Dome Camera, which are installed at various police stations. A constant 24X7 monitoring and surveillance system has also been installed at the respective police stations. The police stations are Page 10 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 able to store the recording of video-audio footages for a period of 30 days. The CCTV cameras are also equipped with the facility of night vision.
8. It is submitted that the locations at which the CCTV cameras are installed at the police stations are as under:-
a) Police station outside boundary area- Pan Tilt Zoom (PTZ) Camera
b) Entry Gate- Bullet Camera installed to cover main entry
c) Exit gate - Bullet Camera installed to cover main entry
d) Building Entry Gate - Bullet Camera installed to cover building entry
e) Building Exit Gate - Bullet Camera installed to cover entire lockup
f) Male Lockup - Dome Camera installed to cover entire lockup
g) Female Lockup- Dome Camera installed to cover entire lockup
h) Police Station Officer area - Dome Camera installed to cover PSO sitting area
i) Passport/ Local Intelligence Bureau (LIB) Branch Dome Camera installed to cover branch area
j) Civic Facilitation Centre - Dome Camera installed to cover branch area
k) Lobby - Bullet Camera installed to cover lobby area
l) Muddamal Area - Bullet Camera installed to cover spare area
m) Other place of police station - As per requirement cameras have been installed.
9. It is further submitted before this Hon'ble Court that the respondent authorities have published a Standard Operating Procedure (SOP) in case of any Page 11 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022 C/MCA/14/2022 ORDER DATED: 24/03/2022 technical difficulty that may be faced by the respective police stations in case of operation of the CCTV cameras. The said SOPs have been circulated across all the police stations of the State of Gujarat. The said SOPs contain the entire procedure for lodging and resolution of complaints raised by the police station in case of any difficulty in operation of CCTV cameras. The 24X7 helpline numbers are also provided in the SOPs so that the complaint of non operation of CCTV cameras can be resolved at the earliest. The details of service engineers as well as the email id branch head of the projects are also shared with the police stations. The copies of six SOPs formulated from time to time and shared the respective police stations by the respondent authorities are annexed hereto and marked as ANNEXURE-R4 (Colly.) of the present affidavit in reply."
9. Thus, the directions issued in the Writ Petition (PIL) No.200 of 2012 appears to have been substantially complied by the State. Now turning our attention back to the core issue as to whether the applicants are to be compensated for the negligent act of contemnors which appears to be so as evident from the report of the Deputy Commissioner, we are of the considered view that the judgment of the Hon'ble Apex Court in the case of D.K.Basu (supra) requires to be noticed at this stage whereunder the Hon'ble Apex Court while summing up the discussion on the issue of award of compensation has opined as under :
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C/MCA/14/2022 ORDER DATED: 24/03/2022 "53. Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under he public law jurisdiction is, in addition to the traditional remedies and not it derrogation of them. The amount of compensation as awarded by the Court and paid by the State to redress The wrong done, may in a given case , be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.Page 13 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022
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10. In the normal course this Court would have embarked upon ascertaining as to whether the damage is to be awarded to the complainants but for the reason that the complainants themselves have filed Special Criminal Application No.1026 of 2022 whereunder they have not only sought for quashing of the FIR registered against them but have also sought for award of appropriate compensation. Any examination or scrutiny of the contention in the present petition is likely to prejudice petitioners right or jeopardize the rights of the State in the pending Special Criminal Application No.1026 of 2022. The learned counsel appearing for the complainant would also fairly submit that petitioners would pursue their grievance in the said pending Special Criminal Application No.1026 of 2022 insofar as award of damages to the applicants are concerned. Even according to the report of the Deputy Commissioner, there has been excesses committed by the Officers which is in contravention of the directions issued by the Hon'ble Apex Court in D.K.Basu as well Arnesh Kumar cases in the facts obtained in the present case.
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11. Hence, reserving liberty to the complainants - petitioners to pursue their grievance in the pending Special Criminal Application No.1026 of 2022, the present contempt proceeding stands closed. Misc. Civil Application No.14 of 2022 stands dismissed. Notice stands discharged.
(ARAVIND KUMAR, CJ) (ASHUTOSH J. SHASTRI, J) GAURAV J THAKER Page 15 of 15 Downloaded on : Tue Mar 29 20:30:29 IST 2022