Andhra HC (Pre-Telangana)
Jitteboina Guravaiah vs Officer On Special Duty, Anti-Naxalite ... on 10 June, 1999
Equivalent citations: 1999(3)ALD585, 1999(3)ALT672
Author: Vaman Rao
Bench: Vaman Rao
ORDER Motilal B. Naik, J.
1. In all these writ petitions, a writ of habeas corpus is sought seeking a direction to the respondent to produce the detenues named therein, before this Court and to set them at liberty and pass appropriate orders.
2. Though the relief sought in these three writ petitions is writ of habeas corpus to release the individual detenues, the main complaint of the learned Counsel appearing on behalf of the writ petitioners is that the requirements laid down by the Supreme Court in D.K. Basu v. State of West Bengal, , to be followed in all the cases of arrest or detention till legal provisions are made in that behalf, have been flouted by the police machinery of the State of Andhra Pradesh and failure on the part of the police machinery to comply with the requirements laid down therein would attract imposition of punishment under Contempt of Court as held by the Supreme Court at para 37 of the said decision.
3. To meet the general allegations made by the Counsel appearing on behalf of the petitioners, we desired that the responsible officials of the Police Department to file additional counter affidavits indicating the measures taken by the State Police machinery for implementing the preventive measures suggested by the Supreme Court in the decision D.K. Basil v. State of West Bengal case (supra). Apart from filing separate counters by the respondents in the writ petition, the Director General of Police, State of Andhra Pradesh has also filed counter-affidavit and additional counter-affidavit indicating the steps taken by the State Police machinery in the implementation of the directives issued by the Supreme Court in the decision first cited supra.
4. In order to examine the allegations made on behalf of the writ petitioners, in the light of the directives issued by the Supreme Court in the decision D.K. Basu v. State of West Bengal case (supra), we deem it appropriate to trace the said directives issued by the Supreme Court in the said decision, which are as under:
(1) The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such Police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness. Who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a Police Station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the Police where the next friend or relative of the arrestee lives outside the District or Town through the Legal Aid Organisation in the Dislrict and the Police Station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the Police Officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the Police Officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A Police Central Room should be provided at all Districts and State Headquarters, where information regarding the arrest and the place of custody of the arrestee Shall be communicated by the Officer causing the arrest, within 12 hours of effecting the arrest and at the Police Central Room it should be displayed on a conspicuous notice board.
5. Since the writ petitioners have raised a larger issue, we shall now proceed to examine how far the preventive measures suggested by the Supreme Court in the decision D.K. Basu v. State of West Bengal case (supra) are being implemented by the respondents.
6. In the first counter-affidavit dated 8-10-1998 filed by the fourth respondent in WP No.25856 of 1998 i.e., the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad, it is stated in para 3 that the judgment of the Supreme Court was received in the last week of April, 1997. Immediately thereof, steps have been taken to implement the same. A memo in Rc.No.1927/C2/97, dated 27-5-1997 was issued to all the Commissioners of Police, Superintendents of Police and all other units, requesting them to go through the order of the Supreme Court carefully and to communicate the same to all the Police Stations and other sub-units under their control and ensure that the directions of the Supreme Court be implemented without fail. It is further indicated in the said counter that the said intimation was communicated from the Office of the Director General and Inspector General of Police, A.P., Hyderabad with name covers to the concerned officers including the Additional Directors General of Police, CID, and Inspector General of Police, Intelligence, all Range Deputy Inspectors General of Police and all Additional DGPs and IGPs for implementation of the same. In addition to the above designated persons copies of the intimation was also forwarded to the Director of Medical and Health Services, Hyderabad to communicate the list of approved Doctors to all Superintendents of Police.
7. In para 4 of the said counter-affidavit, the Director General of Police, State of Andhra Pradesh has further indicated that subsequent to the instructions issued as indicated above, follow up steps have been initiated to implement the order of the Supreme Court. In Memo dated 30-7-1997, all the District/Unit Officers are requested to follow the guidelines in all the cases of arrest or detention as mentioned therein. In the said memo, it was clearly stated that failure to comply with the requirements laid down by the Supreme Court, the concerned officials would be liable to be punished for contempt of Court. It is further classified that the instructions would also apply with equal force to all Government agencies like Directorate of Revenue Intelligence, Directorate of Enforcement, Central Reserve Police Force, Border Security Force, Central Industrial Security Force, State Armed Police, Intelligence Agencies, Traffic Police etc. It is further indicated that the memos issued from time to time were also published in the Police Gazette. The subordinate Police Officers were also instructed to give wide publicity by publishing and distributing pamphlets in the local languages for information of the general public of their jurisdiction and also directed them to report the action taken in pursuance of the memo dated 22-10-1997. Steps have also been taken to broadcast the above guidelines laid down by the Supreme Court on All India Radio and Doordarshan.
8. In para 6 of the counter-affidavit, the Director General and Inspector General of Police, Government of Andhra Pradesh has further indicated that as per the direction of the Supreme Court, in almost all the Police Stations registers were opened with 10 columns. In the first column 'name of the arrestcc with full address' to be mentioned, in the second column 'name and rank of the interrogator or person effecting arrest', in the third column 'name of the relative or friend who has been informed, the time, place of arrest and venue of custody', in the fourth column 'injuries/property found on the arrestee, time of sending to medical examination', in the fifth column 'whether arrestee was informed of his rights', in the sixth column 'whether the signature of the arrestee on medical memo was taken', in the seventh and eighth columns 'the signature of the member of the family or respectable person the locality from where the arrest was made and arrestee's counter signature with time and date of arrest' arc to be mentioned, in the ninth column 'whether necessary entries made in the General Diary' and in the tenth column 'whether information sent to illaqua/local Magistrate or not' arc to be mentioned.
9. It is further averred in para 7 of the counter-affidavit that steps have been taken to establish control rooms at all Districts and State Headquarters to provide information in regard to arrest and the place of custody of the arrestees and also the steps taken for communicating the custody of the arrestee within 12 hours of effecting arrest to the Pol ice Control Room.
10. Apart from the first counter dated 8-10-1998, the Director General and Inspector General of Police, State of Andhra Pradesh has also filed another additional counter-affidavit which is sworn in on 24-11-1998 indicating the other steps taken by the State Police machinery in compliance of the instructions issued by the Supreme Court in the decision D.K. Basil v. State of West Bengal case (supra). It is stated in the additional counter that in compliance to the instruction No. II of the said decision, control rooms have been opened in all the District Headquarters and in Mahboobnagar and Medak Districts, control rooms which existed even prior to the date of the judgment of the Supreme Court, are being continued and the information as per instruction No.11 is being provided in the said control rooms. In the said additional counter, the place of control rooms and the functioning of those control rooms in each district and the dates have been indicated. It is further stated that the 11 directions given by the Supreme Court have been broadcast on All India Radio on 12-12-1997 at 12.45 p.m. in the special programme 'vaartavakhya'. The Director, Doordarshan, Parliament Street, New Delhi, has telecast the 11 directions. On being contacted, the Regional Director, Doordarshan, Hyderabad informed that the 11 directions have already been telecasted in local channel. The Broadcasting Corporation of India, Doordarshan Kendra, New Delhi, telecast the 11 directions from 1-11-1997 to 10-12-1997. It is further indicated that necessary care has been taken by the State Police Machinery to implement the directives given by the Supreme Court and there is no iota of truth in the allegations made on behalf of the petitioners to say that the State Police machinery has not implemented the orders of the Supreme Court.
11. The respondents have also placed before us the records supporting the stand of the State Government that the Police machinery in the Stale of Andhra Pradesh has implemented the directives of the Supreme Court.
12. On behalf of the writ petitioners, leading the submissions, Sri N. Krishna Rao, Counsel for the petitioner in WP No.25856 of 1998, apart from making oral submissions, has also presented written submissions on behalf of the petitioners. The sum and substance of the arguments advanced on behalf of the writ petitioners are in the nature of complaining to us that the Police personnel who are connected with the duty of arrest, interrogation and detention of arrestees, are acting excessively without any accountability and their actions are not in tune with the directions issued by the Supreme Court in the decision D.K. Basil v. State of West Bengal case (supra) learned Counsel further submitted that as held by the Supreme Court in the decision D.K. Basu v. State of West Bengal case (Supra) at para 37, such of those police personnel who flout the directions issued by the Supreme Court are liable to be punished for Contempt of Court. Elaborating the submissions, learned Counsel has drawn our attention to directive Nos.1, 2, 3, 4, 5 and 6 issued by the Supreme Court which relate to disclosing the identity by the arresting authority, steps to be taken by the Police Officer carrying out the arrest and the right of the detenu to have one friend or a relative having interest in his welfare being informed about his arrest, place and time of arrest are to be informed by the Police. In case if the friend or relative of the arrcstec lives outside the District or the town, through the legal aid organisation in the District or the Police Station, intimation is to be sent within a period of 8 to 12 hours after arrest. Learned Counsel pointed out that these directives of the Supreme Court which are mandatory in nature, are not being followed by the Police personnel and the arrestees are kept in dark. Counsel stated that in few cases, the arrestees are not produced before the competent Courts within 24 hours after their arrest and while in custody, the arrestees are subjected to ill-treatment by adopting third degree methods. Learned Counsel nextly pointed out that the arrestees are not at all subjected to medical examination by trained doctors within 48 hours after their detention and no records are also maintained by the Police personnel to show that the arrestees are subjected to medical examination. Under these circumstances, learned Counsel prayed this Court for issuing necessary and appropriate directions to the respondents' for complying with the directives issued by the Supreme Court and to punish the responsible Police personnel for the contempt of Court.
13. Sri Ravinder Rao, learned Counsel appearing for the writ petitioner in \VP No.26407 of 1998, while adopting the submissions made by Sri Nandigama Krishna Rao, Counsel for the petitioner in WP No.25856 of 1998. has taken us to other aspects of the Police atrocities on the arrestees/detenus. Counsel complained that in most of the cases, Police personnel are not properly maintaining the registers indicating the time and place of arrest of the arrestees and are also not intimating the relatives of the arrestee about the arrest. Counsel submitted that though the respondents plead that they have taken all necessary steps in terms of the directives of the Supreme Court, but in reality, no such steps are taken and thus, the Police have no respect for the law of the land and prayed this Court to issue necessary directions to the respondents so that the deficiencies pointed out could atleast be rectified now.
14. Learned Additional Advocate General appearing on behalf of the State of Andhra Pradesh has countered the submissions made on behalf of the writ petitioners. It is pointed out by the learned Additional Advocate-General that whenever a person is arrested, as far as possible, intimation of his arrest is given to his relatives or friends. As far as possible, at the time and place of detention, assistance of a respectable person of that locality is also sought and his/her signature is also obtained on the arrest memo. Learned Additional Advocate-General expressed certain difficulties such as when a person is detained under suspicious circumstances at a far off place from public inhabitations, it would be highly impossible for the Police personnel to secure the presence of any person, either a relative or friend of the arrestee or a responsible citizen, to get the memo of arrest attested and therefore, the Police personnel have to lake such person arrested to the nearest Police Station along with them, to get the arrest memo prepared. Learned Additional Advocate-General submitted that if the arrestee is a stranger, none from the locality would come forward to attest the arrest memo and as such the Police meet with little success in convincing a member of the society to assist the Police.
15. Insofar as disclosing the identity of the Police personnel at the time of arrest is concerned, learned Additional Advocate-General pointed out that as far as possible, arrests are made by uniformed Policemen but in certain cases, plain clothes Policemen have to effect the arrests and then also, they display their name tags with designations. This step, according to the learned Additional Advocate-General, is taken in order to see that the 'wanted person' would not escape on noticing the uniformed Police personnel. At the time of arrest, the identity of the Police personnel is disclosed to the arrestee and the grounds of arrest are also made known to the arrestee, while the other procedure is also followed strictly in accordance with the prescribed norms. The learned Additional Advocate-General further submitted that all the Police Officers in the State have been instructed by Ihe higher authorities to strictly implement the directives of the Supreme Court and take necessary precautions while effecting arrests.
16. In the light of the allegations made by the writ petitioners, the respondents were directed to place the relevant material before this Court as to the steps taken to implement the directives issued by the Supreme Court. The respondents have no doubt pleaded before us that after the receipt of the copy of the judgment of the Supreme Court, necessary instructions have been issued from time to lime through various memos to all concerned and steps have also been taken to publicise the gist of the Supreme Court's directives through pamphlets and also through electronic media. The respondents have further stated that in compliance with directive No. 11 of the Supreme Court, Control Rooms numbering about 26 in all the District Headquarters and also in major towns were established and the dates from which they became functional, were also indicated. No doubt, the respondents have stated that steps have been taken by them to implement the directives issued by the Supreme Court,
17. However, it is mandatory on the part of the State to oversee the implementation of the directives issued by the Supreme Court by all the Police personnel who are connected with arrest, detention and interrogation of the arrestee. Though the respondents have pleaded that as soon as an arrest is made, the relative or friend of such arrestee is intimated through a constable about the arrest, but in many a case, the respondents fail to disclose the name of the constable through whom the relatives of the arrestee is intimated. The respondents have also failed to give the name of the relative of such arrestee to whom information was given about the arrest.
18. It may be true that in certain cases, a person is apprehended away from the public habitation on suspicion and it would not be possible for the authorities to procure the presence of a relative or a respectable person of that locality to prepare the arrest memo. However, the arresting authorities, as far as possible, shall make efforts to secure the presence of a respectable person of the locality and also to intimate the relative/friend of the arrestee. What is required is the effort on the part of the Police personnel and if concerted efforts are made, it may not be impossible to follow the directives of the Supreme Court.
19. Keeping in view the importance of the issue/raised before us, we have spent considerable lime on the submissions made by the learned Counsel appearing on behalf of the writ petitioners as well as the learned Additional Advocate-General who represented the State of Andhra Pradesh, to assess the gravity of the situation and desired to issue certain directions to achieve the objective of the directives issued by the Supreme Court in the decision D.K. Basil v. Stale of West Bengal case (supra). Through these directions, we desire to achieve the twin objectives. In a civilized society, protection of human rights assumes significance. Citizens more often than not, complain about custodial deaths, ill-treatment of the arrestee, in the guise of interrogation or during the period of detention after arrest by the Police, who are the law enforcing agency. Certain forces work to destroy peace and tranquility in the society by indulging in nefarious and unlawful activities. There is a constant onslaught on the peace and tranquility of the society by unsocial elements, with the result, the society is to look at the law enforcing agencies for protection of not only the lives and properties of the citizens but also for maintaining the tranquility in the society.
20. No doubt, the law enforcing agencies are to arrest these criminal activities which are not conductive to the progress of the society. However, while doing so, the law enforcing agencies have given room for criticism that they indulge in excessive acts while dealing with the detenus and such others. It is oftenly complained that human rights as guaranteed under Articles 21 and 22 of the Constitution of India, arc totally ignored by the law enforcing agencies. Hue and cry is made about the excessive acts of the law enforcing agencies and some of the aggrieved parties approach Courts seeking remedies including that of issuance of a writ of habeas corpus, invoking the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution of India.
21. It is in this background, the approach of the Constitutional Courts which are the custodians of Fundamental rights, is to suggest various remedial measures so that the frequent complaint about the "excessiveness" in the acts of the law enforcing authorities, in dealing with the arrestees/detenus could be avoided. While suggesting remedial measures, Courts are to keep in mind as to how best the grievances of the society could be redressed by timely action while permitting the law enforcing agencies to discharge their duties without unnecessary hurdles.
22. Having regard to our discussions and in the light of the directives given by the Supreme Court in D.K. Basu's case (supra), we desire the following measures be taken to ensure the implementation of the directives of the Supreme Court.
(1) As soon as the arrestee is produced before the concerned Judicial Magistrate, such Judicial Magistrate shall be entitled to verify and satisfy himself/herself that the arresting authorities have taken all steps as indicated by the Supreme Court in directive Nos.2, 3 and 4 cited supra.
(2) The concerned Judicial Magistrate shall be entitled to seek such other information from the arresting authority for satisfying himself/herself as to whether the arresting authorities have complied with the requirements indicated in directive Nos.5, 6 and 7 of the Supreme Court cited supra.
(3) The concerned Judicial Magistrate shall record in his order of remand about the compliance or otherwise of the requirements as indicated above by the arresting authorities and pass appropriate order. The concerned Judicial Magistrate shall also record the statement of the arrestee if the arrestee desires to make a statement, which shall form part of the Court proceedings.
(4) The Superintendents of Police of each District shall review the functioning of Police Stations in his District ensuring the implementation of the 11 directives issued-by the Supreme Court once in every three months and send such review reports through the Range DIGs to the Director General & Inspector General of Police, Hyderabad.
(5) The Deputy Superintendents of Police of each Division in the State of Andhra Pradesh shall make visits to all Police Stations in their jurisdiction once in a fortnight and verify whether the directives issued by the Supreme Court are scrupulously followed or not. In case, the Deputy Superintendents of Police find any lapse on the part of any subordinate Police Official in complying with the directives of the Supreme Court, they shall initiate necessary departmental action against such erring Police Officials. The Deputy Superintendents of Police shall also send a report to the District Superintendent of Police indicating the details of the inspection made by them, for information.
(6) The Inspectors of Police shall visit the Police Stations under their control on every day as far as possible and verify the entries made in the register about the arrest and detentions and ensure that the directives issued by the Supreme Court in this regard are followed.
(7) The Station House Officers of all the Police Stations in the State are responsible for all the lapses committed by their subordinate Police personnel in implementing the directives of the Supreme Court.
(8) Insofar as the directive No.8 issued by the Supreme Court which relates to providing medical examination to the detenu in every 48 hours during his detention is concerned, the doctors who examine the detenu, shall, after examining the detenu, prepare a report and send a copy of the same to the concerned Judicial Magistrate and such report shall form part of the proceedings.
(9) Insofar as the Metropolitan cities, viz., Hyderabad Vijayawada and Visakhapatnam are concerned, the Asst. Commissioners of Police shall follow the above direction No.5 now issued by us and act accordingly. The Commissioners of Police of these cities shall invariably follow the direction No.4 now issued by us-and act accordingly.
(10) The Director General & Inspector General of Police, State of Andhra Pradesh shall review the situation prevailing in the State of Andhra Pradesh in the implementation of the Supreme Court directives by holding review meetings with all the concerned Commissioners of Police of Metropolitan Cities and superintendents of Police of Districts once in every six months and shall be responsible for the implementation of the directives of the Supreme Court.
(11) The Director General of Police, State of Andhra Pradesh shall ensure, if necessary, adequate training being imparted to such subordinate Police personnel who are directly connected with the process of arrest, detention and interrogation of arrestees, periodically so that the objective of the scheme formulated by the Supreme Court through 11 directives is achieved in ensuring the protection of human rights upholding the Constitutional objectives as enshrined under Articles 21 and 22 of the Constitution of India.
The above directions now issued by us are not exhaustive but are intended to ensure the implementation of the directives issued by the Supreme Court.
23. Coming to the facts of each writ petition, the counters filed on behalf of the respondents in these writ petitions disclose that the alleged detenue have already been produced before the concerned Judicial Magistrates and are remanded to Judicial custody long back. In the light of the directives issued by us, we do not propose to examine the individual contentions raised in each of these writ petitions since the detenue have already been remanded to Judicial custody. However, we dispose of these writ petitions in terms of the directives indicated above. No costs.