Gujarat High Court
Subhashbhai Vidhyaram Varma vs State Of Gujarat on 3 February, 2023
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
R/SCR.A/680/2021 ORDER DATED: 03/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 680 of 2021
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SUBHASHBHAI VIDHYARAM VARMA
Versus
STATE OF GUJARAT
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Appearance:
MR VISHAL B MEHTA(5319) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/02/2023
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition under Article 226 of the Constitution of India. The applicant is the elder brother of the corpus - Rajendra Vidhyaram Verma. They are four brothers and the applicant is the eldest one. The youngest brother is Sudama who is 22 years old.
2. On 01.01.2021, Sudama ran away with a minor girl and as both of them were not traceable, the brother of the applicant - Rajendra was taken away by the Ramol Police Station on 02.01.2021 in the morning hours. Page 1 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023
3. The grievance on the part of the applicant is that he had been illegally detained by the respondent police authority without any complaint and without his fault, at Ramol Police Station. The corpus is in the business of selling fruits and vegetables as a retailer for earning his livelihood. It is seriously alleged that he was physically and mentally tortured. His health was not good however, the police had not released him from illegal custody nor has given any explanation as to why he was detained.
4. As he was not released till 11.01.2021, this petition for habeas corpus came to be preferred. They made all possible attempts to trace the brother - Sudama who has eloped with a girl and was not traceable. The applicant and his brother were forced by the police authority and they had illegally detained the brother of the applicant - corpus herein.
5. The present application is preferred with the following prayers: -
"(A) Be pleased to allow this application by issuing the writ of Habeas Corpus against the opponents and direct the opponents - authorities to produce Page 2 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 corpus - Rajendra Vidhyaram Varma, brother of the present applicant before this Hon'ble Court and further be pleased to hand over his custody to the applicant being his brother;
(B) Be pleased to issue appropriate writ, order or direction to the opponents- authorities to secure the lives and liberties of corpus i.e. Rajendra Vidhyaram Varma, brother of applicant;
(C) Be pleased to direct the opponents police authorities to file report before this Hon'ble Court as to why brother of the applicant has been illegally detained in the Ramol Police Station and, further be pelased to initiate appropriate actions against the opponent no.3 and 4 herein in the interest of justice;
(D) Pass such other and further relief as may be deemed just and proper in the interest of justice."
6. When the matter came up for hearing on 19.01.2021, learned Additional Public Prosecutor Ms. Jirga Jhaveri had ensured to gather the details from Ramol Police Station and accordingly, the matter was posted on 21.01.2021. 6.1. The report came to be submitted by Mr. M.S.Kotwal, Police Sub-Inspector, Ramol Police Station on the scheduled date. Learned APP Ms. Jhaveri sought time to gather the instructions and accordingly, the matter came to be posted on 03.02.2021.
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R/SCR.A/680/2021 ORDER DATED: 03/02/2023 6.2. On 03.02.2021, the report came to be submitted by learned APP of the Police Sub-Inspector and this Court passed the following order: -
"1. The report submitted by 2nd P.S.I. M.S. Kotwal, Ramol Police Station, is indicative of the fact that the corpus was with the police on three different dates, i.e. on 5.1.2021, 12.1.2021 and 16.1.2021. His statement also has been recorded and thereafter, he was allowed to go.
2. After this petition, when it was inquired from his residence on 20.1.2021, it was given to understand to the police that he has gone to his native - U.P. to meet his wife as he is newly married person.
3. It is alleged by learned advocate Mr. Vishal Mehta for the petitioner that from 2.1.2021 to 18.1.2021, constantly he was in the police custody. According to him, only after this petition has been preferred that he was allowed to go and it is also a lie to say that he has gone to his native. He has urged that the police should answer where the corpus is and D.C.P. Mr. Tyagi, who is manning Zone-V, shall remain present by obtaining necessary details from the concerned police officers.
4. The matter to appear on 5.2.2021. "
6.3. On 05.02.2021, the Deputy Commissioner of Police, Zone-V, Mr. Tyagi remained present as directed on the earlier occasion and this Court passed the following order: - Page 4 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 "1. Pursuant to the order dated 03.02.2021, we could notice the presence of DCP, Zone-5, Mr. Tyagi, before us through video conference.
1.1 According to him, the corpus was called twice or thrice, as the girl, with whom his brother has run away, is minor and an FIR has already been lodged in that regard. He also shared a video through learned APP, Ms. Jhaveri, recorded at a Police Station in Uttar Pradesh, where, he has categorically sated that he is in UP since 19.01.2021 and he does not want to proceed with the habeas corpus petition. He is unsure, as to who had preferred such a petition.
2. Noticing the details furnished through video recording and also the submissions made by the DCP, Zone-5, we deem it appropriate to DIRECT production of the corpus before us through video conference to be arranged at the nearest Court in UP. Let the same be ARRANGED at the nearest Court in UP.
3. Learned APP, Ms. Jhaveri, has necessitated on dismissal of this petition and also imposing costs for being un-truthful in this matter, as, according to learned Advocate, Mr. Mehta, the corpus was released, only, after the filing of this petition.
4. Noticing the video, which has been shared today, coupled with the version given by the DCP, Zone-5, Mr. Tyagi, we DO NOT deem it appropriate to dismiss this petition, at this stage. However, physical presence of the corpus is NOT being insisted and his presence before this Court through video conference, arranged at the nearest Court in UP, shall be sufficient. Let the same happen on 10 th FEBRUARY, 2021.
5. S.O. to 10TH FEBRUARY, 2021."
6.4. Corpus - Rajendra was produced through the video Page 5 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 conference from the City Civil and Sessions Court, Ahmedabad in presence of learned Judge Mr. P.N.Raval, City Civil and Sessions Court, Ahmedabad. This Court directed the Police Sub-Inspector Mr. Kotwal and the DCP, Zone-V, Mr. Tyagi to remain present before this Court on 16.02.2021 and the corpus was also directed to remain present on that day from the City Civil and Sessions Court and on 16.02.2021 this Court passed the following order: -
"1. In our order dated 15.2.2021, we have called the Deputy Commissioner of Police, Zone-V, Mr.Tyagi to remain present before us. According to him, he had no clue of this matter till this Court passed an order on dated 3.2.2021. He also has received no complaints with regard to continuous custody of the corpus with the police either from the relatives of the corpus or from any other sources.
2. Today, once again, we had inquired from the corpus, who reiterated his being in the police custody from 2.1.2021 till his release on 18.1.2021. He has not made any complaint of any kind of ill treatment. He also had urged this Court that he is not desirous to pursue the matter any further as he earns his livelihood by selling vegetables and he also needs to maintain his parents, who are in Uttar Pradesh.
3. Any one day of loss of subsistence in the earning not only cost him heavily but, to his family also. We had inquired from him in detail and he confirmed that twice or thrice his brother had visited him supplying the tiffin otherwise, he was being fed by the police and also was kept at the police station.Page 6 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 He reiterated of not having complaint of any kind of ill treatment from any one, but, he suffered economically and this custody was to ensure that his younger brother returned with girl.
4. Noticing that this was a very serious breach in itself of keeping a person in the custody for more than 24 hours because his brother was not traceable & even if there is no complaint of physical abuse, what is prohibited under the law cannot be endorsed as means are equally or more important than the goal, we therefore deemed it appropriate to inquire in person from the senior officer, who also has no clue with regard to any such complaint. Hence, it is being directed that he shall make an inquiry in this regard and shall report to this Court, on 1.3.2021. If at all any need arises for calling the corpus for the said purpose, he shall seek the prior permission of this Court; otherwise, from the record, which will be made available to him from the police department, he shall carry out an inquiry and report. It shall be ensured that there is no further harassment in any manner to the corpus during the course of inquiry and he shall continue to do his small business of vending the vegetables.
5. It is pertinent to mention that the corpus has confided before the learned Judge, City Civil & Sessions Court, Ahmedabad, Mr.Raval that his brother who is in the jail presently is a minor and his Aadhar Card is reflective of this fact. He is permitted to produce the same before the learned Judge, City Civil & Sessions Court, Mr.Raval, who if finds any substance in this version, shall provide him the legal aid and shall also intimate this Court in writing of this aspect. Once any such intimation is received in writing from the learned Judge, the Registrar (Judicial) shall place the same before this Court.
6. Matter shall be posted on 1.3.2021. Copy of this shall be given to learned Additional Public Page 7 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 Prosecutor, Ms.Jirga Jhaveri for onward communication and due execution of the order.
7. While undertaking this inquiry, senior officer shall bear in mind the Golden Words of Lord Kore Dorson, which have been reflected by Apex Court that, "civilization to every country is known by the procedure it adopts in implementing the Criminal Procedure law"."
6.5. On 04.03.2021, the DCP, Zone-V remained present before this Court who already had prepared a report pursuant to the directions issued by this Court on 16.02.2021 which has been shared with the Court through learned APP. However, he has shared a soft copy and the request was made by learned APP to supply the hard copy. Matter was once again therefore posted for hearing on 08.03.2021. 6.6. On 08.03.2021, both the sides have been heard extensively.
7. According to learned advocate Mr. Vishal P. Mehta, there have been a repeated requests on the part of the applicant to ensure that his brother is not in any manner illegally detained. He had no other go but to approach this Court for having realised that the police had illegally detained Page 8 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 his brother and all his requests have fallen at fears. According to them, in case of eloping of the brother of the corpus if there are any inquiries to be made by the police, it had no business to detain the corpus illegally, which has been done in the instant case. He also has revealed before this Court that he was continuously in the illegal custody and was not permitted to go anywhere out of the Police Station. It is surely a mechanism which is quite dangerous merely because the brother of the applicant and corpus was not traceable. It is only after he was found at Uttar Pradesh, that the police have chosen to release the corpus. He also has alleged against the senior officials to urge that the true facts are not brought before the Court.
7.1. On the other hand, learned APP Ms. Jhaveri has urged that the report itself is quite eloquent and as the brother of the corpus had eloped with a minor girl, the police was needed to find out the whereabouts of the girl and therefore, the inquiry from the family members was a must. It is in pursuance of the missing complaint filed by the parents of the minor girl and as the provisions of the Prevention of Children from Sexual Offences (POCSO) Act were also invoked, the Page 9 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 police needed to take swift and prompt actions. Being a citizen, according to learned APP, it is a duty to cooperate with the police and to trace the criminal which may include their own family members. The brother of the applicant and the corpus since had eloped with the minor girl, he was by all means a criminal and hence, to trace him and the minor girl, police needed to undertake the inquiry which resulted into stretched hours of inquiry. There may have been some lapses according to learned APP, however, the intent was very clear and there was no illegality committed nor was there any unauthorized detaining of the corpus.
8. Before this Court chose to adjudicate upon the issue as to whether the corpus - Rajendra Verma - the brother of the applicant was illegally detained by the police authority, the report made by Mr. Tyagi, DCP, Zone-V needs a closure perusal and reference.
8.1. An FIR was lodged on 02.01.2021 being I-CR No. 11191024210014 of 2021 for the offences punishable under Sections 363, 366 and 376(2)(n) of the Indian Penal Code and Sections 3, 4, 5(L), 6 and 18 of the POCSO Act. This has been Page 10 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 against his brother - Sudama Varma who had abducted minor girl of 17 years and this FIR was given by the mother of the minor girl - Manjuben.
8.2. The corpus was called in relation to this FIR from 02.01.2021 to 18.01.2021 and allegation is to the effect that he was continued in the detention of the police for more than 24 hours. The DCP, Zone-V recorded the statements of second Police Sub-Inspector Mr. M.S.Kotwal. According to him, his brothers Manoj and Subhash were called to inquire about Sudama on 04.01.2021. All the brothers were residing at Ahmedabad without family and no details could be revealed of Sudama's whereabouts. On 05.01.2021, Rajendra - corpus herein was called and he gave a statement along the line of what other brothers have said. On 06.01.2021, the statements of all the three brothers had been recorded, however, Manoj and Subhash were not found at the residence in CTM area thereafter.
8.3. On 12.01.2021, the corpus was found at Jamfalwadi, CTM, Ramol and his statement was once again recorded. He was also called on 16.01.2021. He revealed that his brother Page 11 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 Sudama and victim had been found at Gohan Police Station, Uttar Pradesh and therefore, he was permitted to go home. A team had gone from Ahmedabad to Gohan on 16.01.2021 and on 17.01.2021 it reached to Uttar Pradesh and on 18.01.2021 it came back bringing both Sudama and victim girl. After the COVID-19 test, Sudama was arrested on 20.01.2021 and while was in a lockup of the Police Station, his brother Rajendra - the corpus herein also visited him. When Sudama was presented before the Court on 20.01.2021, he never revealed that his brother was illegally detained or he was either bitten or threatened by the police.
8.4. In the present petition also, the corpus had said that he remained present on 05.01.2021, 12.01.2021 and 16.01.2021 and was permitted to go from the Police Station. On 20.01.2021, there was an inquiry made at his residence in Gujarat and he has revealed that he had gone to his native for the bidai ceremony of his wife.
8.5. On 04.02.2021, the Police Inspector Mr. Kotwal spoke to the Sarpanch of Kursenda Village, Taluka Madhavgadh, District Zalon, Uttar Pradesh and also with his younger Page 12 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 brother Manoj. They had confirmed that he was not missing and had, in fact, reached Kursenda.
9. According to this report, it is incorrect to say that Rajendra was illegally detained. He was called for the statement now and then and then was permitted to go home. With regard to the age of Sudama, what has been stated before this Court on 16.02.2021 turned out to be incorrect as he is not minor. According to his report, it is also incorrect to say that they were continuously being called and he was kept in the police custody and harassed on the part of the police. 9.1. There was a notarized affidavit sent to the Ramol Police Station by the applicant that he has no complaint against the Ramol Police. The owner of the residence of corpus - Rajendra stated that for the past three months Manoj Varma is residing and his rent is Rs. 1800/-. He had his brothers Subhash, Manoj and Sudama, however, none of them had wife staying with them. All the four brothers are carrying out the work of selling fruits and vegetables and one of them is selling water balls (pani puri). He also has said that Subhash's younger brother Sudama had eloped with a girl and therefore, Page 13 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 pursuant to the complaint given by the mother of the victim girl, Rajendra was called by the police however, he has no knowledge as to whether he was illegally detained. 9.2. The statement of one Jitendra Manjibhai Agola who is the neighbour of Dixitbhai @ Munnabhai Patel also has reiterated the same details. According to him, he had seen all the four brother going for the work on a regular basis. One Bharatbhai Prayagbhai Adhara also knew these brothers who were the tenants of Munnabhai. He also is aware that police had come to inquire about Sudama and the victim girl however, he had no clue whether any threat had been given for arresting Sudama.
9.3. The CCTV camera recording and footage had been called for from the Police Control Room and the report was sent that there was no CCTV footage available for the period from 02.01.2021 to 18.01.2021. He also has inquired from the Charge Officer and others such as accountant writer Head Constable - Ganshyambhai Lalshankar, PSO - Nisharehmad Abdulgani, ASI - Manharbhai Bhikhabhai, Woman ASI - Kailashben Ratansinh, Unarmed Head Constable - Page 14 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 Prashantkumar Manharlal and Unarmed Head Constable - Rajendrasinh Narendrasinh. None of them have stated anything about the illegal detention.
9.4. It has also been noted that in his report, he has made a mention of the present applicant himself having given the statement before the officer concerned, he has admitted that as his brother has eloped with a minor girl, police had inquired. All the three brothers had gone to Ramol Police Station. Their statements had been recorded and they were permitted to go home. They were scared of initiation of some criminal proceedings against themselves if Sudama is not traced by the police. Manoj and the applicant Subhash both had gone away to Uttar Pradesh to find the whereabouts of Sudama. In the meantime, Rajendra - corpus herein was all alone at Ahmedabad and therefore, being apprehensive of his arrest by the police, he had contacted the advocate concerned and as per his say, the signature had been made by him. He accepted that for two to three times he was called at the Police Station and was permitted to go home. Likewise, his brother Manoj also has given the statement. Page 15 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 9.5. According to this officer, all the three siblings had given the statements. The statement of Rajendra also had been recorded on 16.01.2021. Nothing objectionable had been found. Sudama has been caught and on 20.01.2021 they all had gone to defend Sudama therefore, it is wrong to say that he is missing. The corpus Rajendra has already gone away to his native. The report of DCP is indicative that there is no application given to any officer or either to his superior with regard to the illegal detention, however, in future if any such complaint is given by any person, in the Police Station itself, there is a circular already sent to all Police Station as to in what manner they can contact the superior. So far as the present matter is concerned, there is nothing adverse noticed from any of the versions.
10. This Court could notice that when Rajendra was produced before this Court through video conference in presence of learned Judge Mr. P.N.Raval, he made a revelation of having been detained from 02.01.2021 till 18.01.2021 continuously and therefore, we deemed it appropriate to call Mr. Tyagi, DCP, Zone-V. The senior officer had no clue as there was no complaint made by any of the Page 16 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 relatives before him. The corpus had reiterated before us that he was in the police custody from 02.01.2021 and released on 18.01.2021. Although, there was no complaint of any ill treatment by the police. He also urged this Court not to pursue the matter further since he earns his livelihood by selling vegetables and also maintain his parents who are staying at Uttar Pradesh. It costs heavy maintenance to earn the livelihood on account of the FIR. He confirms that twice or thrice his brother has visited the Police Station to give him tiffin. He suffered economically. This illegal detainment of his was to bring back his brother from Uttar Pradesh who had eloped with the young girl.
11. As reflected by us in our order dated 16.02.2021 although there had been no allegation when the corpus was produced before this Court on 16.02.2021 neither in the petition itself nor was there any physical abuse of the corpus but, the fact remains that nobody is permitted to be continued in the police custody for more than 24 hours without the authority of law. Undoubtedly, the brothers were called as the youngest brother Sudama was not traceable who had eloped with a young girl who was minor and he was an accused Page 17 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 under the POCSO Act also. Undoubtedly, it is the duty of the police to trace the young victim girl under the POCSO Act and for tracing the accused, it is bound to call the family members of such accused. In the instant case, all the four brothers were staying under the same roof. They hail from Uttar Pradesh and therefore, calling the rest of the three brothers for inquiry and investigation is quite common and no fault can be found so far as such inquiry is concerned. However, to use the detainment of one of the brothers as a leverage to get the secured presence of his brother is seriously objected to in the present application. It is unfortunate that not only staff in the Police Station have chosen not to support the inquiry conducted by the senior official, the applicant himself in his version given to the senior official has turned cold feet. When there is a categorical version of his stated on oath before this Court as to why his brother had been detained from 02.01.2021 to 18.01.2021, the version given by the senior police officer in his report, on the basis of his oral version before him, speaks of all the three brothers being called by the police and being permitted to go home after the inquiry. 11.1. It is also very eye-catching averment that he has signed Page 18 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 wherever the lawyer has said and since they were apprehensive of the possible action on the part of the police against his brother - Rajendra who was all alone at Ahmedabad, they may choose to prefer the habeas corpus petition.
12. It is quite common for someone like the applicant to put down all the armers knowing fully well that there is a mighty body against whom they needed to fight. To approach this Court is understandable but when it comes to facing the police and to continue their allegations of illegal detention in an in-house inquiry, is surely extremely difficult. The corpus himself has spoken of his detainment but he, with folded hands, had urged this Court that he is too smaller person to stand with anything which may come as an on-slot from the police department. He since was not physically harassed according to him, and when the defend was not brought by any of the brothers, the police found the corpus while he continued to be at Police Station all alone. He had no guts nor courage to continue to fight with this department. We can very well appreciate this and also examined the report which came from the senior police officer who did not get the Page 19 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 support from any of the persons. It is the fight between two unequals, the only way in which the proof can come of such illegal detainment is with the aid of technology. That was the reason why this Court [Coram:- Mr. Bhaskar Bhattacharya, CJ. (his Lordship then was) & Mr. J.B.Pardiwala, J. (his lordship then was)] in case of Prakash Kapadia - President Of Jagega Gujarat Sangharsh Vs. Commissioner of Police (ahmedabad City) & Others [PIL No. 200/2012, dated 08.11.2012] has chosen to direct every police station to have a CCTV camera.
12.1. Unfortunately, by the time this Court directed the DCP, Zone-V to look into this matter and inquire deep into the same on 16.02.2021, had he called for the report of CCTV camera immediately, possibly the details could have been made available from the Police Control Room. The same could have been available from 16.01.2021 to 18.01.2021 onwards. Till his having called for the same on 27.02.2021, the details with the proof of CCTV camera had already gone as the requirement of reserving it for 30 days.
13. The reference is also needed of Sections 50, 56, 57 and 58 of the Code of Criminal Procedure which are as follows: - Page 20 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 "50. Person arrested to be informed of grounds of arrest and of right to bail:-
1. Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
2. Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
56. Person arrested to be taken before Magistrate or officer in charge of police station:-
A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, lake or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
57. Person arrested not to be detained more than twenty-four hours:-
No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
58. Police to report apprehensions:-
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons Page 21 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise."
13.1. Section 41A of the Code of Criminal Procedure authorizes the police officer to issue a notice for appearance against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed cognizable offence, to appear and such person is duty bound to appear. In a cognizable offence, the police can arrest without Court's directions. The provisions of Cr.P.C. requires that at the time of making arrest, a procedure needs to be followed as prescribed under Sections 41B, 41D, 46 etc. of the Cr.P.C.
14. It is also quite clear that the law prohibits the person to be detained without following the due procedure. Here, there was no requirement of any arrest of a person and it is not a case of the police that for assisting the brother who is an accused in the POCSO, there was a requirement of arrest of this man. His illegal arrest or illegal custody was only to secure the presence of his brother. Even if the goal or the end was justifiable of arresting the accused of a POCSO matter, Page 22 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 the means used appears to be absolutely unjustifiable and unpalatable and such action is unendorseable.
14.1. The corpus who was present before this Court has in no unclear terms stated before this Court that he continued to be in the illegal detention of the police from 02.01.2021 till 18.01.2021. His brother was arrested by the police from Uttar Pradesh on 17.01.2021 and on 18.01.2021 he was brought back to Ahmedabad. The release of this man was virtually during the same period. It is to be noted that no proof to that effect could be strongly found by the superior officer in wake of non-support on the part of his own team who also otherwise would be landing itself in a difficulty and for want of availability of the proof as he needs to depend on the human agency.
15. While acceding to the request of corpus to permit him not to pursue this matter against any person, the directions issued by this Court in case of Vasaya Yunusali Alarakhabhai vs. State of Gujarat [Special Criminal Application No. 1615 of 2022 on 05.05.2022] require profitable to be reiterated as technological advancement Page 23 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 would prevent such crimes and illegal custody at the hands of police.
"7. The guidelines of 09.07.2018 issued from the Office of Director General and Inspector General of Police gives the detailed modality of working of the RMS as in all police stations the CCTV camera system are installed for preventing the incident of custodial violence, non registration of First Information Report as also the violation of human rights etc. following the decision of the Apex Court rendered in case of D.K.Basu vs. State of West Bengal & others, reported in (2015) 8 SCC 744 and thereafter reiterated in Criminal Miscellaneous Petition No.16086 of 1997 r/w Criminal Miscellaneous Petition No. 19694 of 2010 on 02.09.2015. For enhancing the quality of services rendered by the police and for the use of technology these guidelines have been formulated.
7.1 It mandates maintaining of Dead Stock Register in all offices of Superintendent of Police with the District level. The Superintendent of Police or the Police Commissioner is expected to monitor at least once in a week through the RMS, the CCTV Camera System and the video footage. All the gadgets of their RMS shall need to be maintained by a Wireless Sub Inspector after giving him the training in this respect. It also mandates the preservation of the video footage of CCTV camera for 30 days' period. There are many complaints for the use and maintenance of this CCTV Camera System and it has been mandated that the strictest actions be taken if some police personnel or the officers continue do the objectionable activities.
7.2 The detailed guidelines further says as to in what manner the misbehavior or the unpalatable actions with the citizens should be checked.Page 24 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023
8. This very clearly gives the indications as to how for the Gujarat Police office of DG & IG has been vigilantly directing every police station to follow the use and maintenance of the CCTV footage. It has also further detailed the manner in which the Head of the District to monitor the CCTV footage every week at least in one case and thereafter, to take necessary actions as directed in the very guidelines. However, from the affidavit which has been filed by the Secretary, Home Department, it is quite clear that there are various levels of redressing the different kind of grievances for the complaints, but there is no specific guideline issued to intimate the District Police Head when there are complaints regarding the police harassment in the District. There is no specific direction for the senior police officer or the Superintendent of Police to be intimated of such harassment. Every police station is equipped with this technology and the advancement of this technology is for the succor of the citizen.
9. We need to also make a reference of the decision of the Apex Court rendered in case of PARAMVIR SINGH SAINI VS. BALJIT SINGH AND OTHERS, reported in (2021) 1 SCC 184 where the question was of installation of CCTV cameras in police stations and credible recording of evidence and safeguarding the human rights inside the police stations. The Apex Court vide its order dated 03.04.2018 directed that the Central Oversight Body (referred to as COB) to be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videograph in the crime scene during the investigation.
9.1 The Apex Court also referred to the decision issued in case of D.K.Basu (supra) to hold that there was a need for further directions that in every State an oversight mechanism be created whereby the independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. The COB also may issue the appropriate direction from time to time so as to Page 25 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 ensure that use of videography becomes a reality in a phased manner. It had also given the constitution of the District Level Oversight Committee and eventually enlisted the duties and the responsibilities for working maintenance and recording of CCTV.
9.2 Apt would be to refer to the guidelines and the mandate given by the Apex Court in this regard.
"14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to 7 immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.
15.The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.
16.The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, Page 26 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; 8 main gate of the police station; all lock- ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector's room; SubInspector's room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer's room; back part of the police station etc.
17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in 9 any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government Page 27 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 shall clearly indicate that the best equipment available as of date has been purchased.
18.Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.
19.The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also 10 directed to install CCTV cameras and recording equipment in the offices of:
(i) Central Bureau of Investigation (CBI)
(ii) National Investigation Agency (NIA)
(iii) Enforcement Directorate (ED)
(iv) Narcotics Control Bureau (NCB)
(v) Department of Revenue Intelligence (DRI)
(vi) Serious Fraud Investigation Office (SFIO)
(vii) Any other agency which carries out interrogations and has the power of arrest.
As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station. The COB Page 28 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 shall perform the same function as the SLOC for the offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located.
20.The SLOC and the COB (where applicable) shall give directions to all Police Stations,investigative/enforcement agencies to prominently display at the entrance and inside the police stations/ offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.
21.Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/ police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary /Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today's Order. This is to be done within a period of six weeks from today.
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22.We record our gratitude to Shri Siddhartha Dave, learned Amicus Curiae, for rendering his services to this Court."
9.3 This dictum insists on the CCTV system to be installed with night vision and to consist of audio and video footage both. The Apex Court has also asked for the requirement of the CCTV footage to be preserved for a period of six months and a firm action plan to be submitted within six weeks.
10. This in addition to what has been already directed by way of guidelines in the year 2018 by the office of Director General and Inspector General of Police will take care of the maintenance of the CCTV cameras.
11. According to the learned APP, Ms.Jhaveri, for fulfilling the directions of the Apex Court, the mechanism is already underway. She has taken the instructions to ensure this Court that pursuant to this mandate and the guidelines issued by the Apex Court, the process is on and it is soon to be completed. Therefore, no further directions in respect of this will be additionally needed till the new system is purchased and installed.
12. Let the other guidelines which have been directed by the Apex Court, if are not otherwise presently hampered by the technological limitations be followed. All police stations should be intimated the guidelines issued in case of PARAMVIR SINGH SAINI (supra).
13. According to us, any incident of the alleged atrocities or involvement of the police officers in violation of mandatory guidelines shall at least be intimated to the Head of the District, i.e. to the Superintendent of Police or the Police Commissioner, as the case may be. Let a specific guidelines in that respect also be initiated. It is one thing for the Superintendent of Police himself to find out from the CCTV camera footage the misbehavior or the misconduct and it is another thing when he, as the Page 30 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023 R/SCR.A/680/2021 ORDER DATED: 03/02/2023 District Head, is made aware of such complaints and registered. Let that be worked out by the Home Department.
14. We have noticed that, in the instant case, the matter is pending before the District Court and therefore, we chose not to presently intervene. After once the District Court finalise the matter, it will be for the petitioner to also take an appropriate remedy in respect of his personal complaint. None of these observations or the limitation of the technology will in any manner hamper his right to approach the appropriate authorities.
15. We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible.
16. Present petition stands disposed of accordingly."
16. Resultantly, this petition under Article 226 of the Constitution of India for habeas corpus has achieved its purpose as the corpus has been found and he categorically made a request before this Court that he is not desirous to pursue this matter any longer against anyone. He was released almost at the time when his brother was arrested from Uttar Pradesh. This is not a coincidence, however, as the Senior Police Officer has shown his inability to gather the proof in relation to the illegal/unauthorized custody of the corpus, no action could be initiated against any particular person or officer. His inability is also on account of non- Page 31 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023
R/SCR.A/680/2021 ORDER DATED: 03/02/2023 following of the directions of this Court of installing the technologically advanced gadgets at the police station and therefore, we reiterate the directions of streamlining the infrastructure and strengthen the system to prevent such infractions.
17. While not granting any compensation in wake of the aforementioned circumstances, we deem it appropriate to award cost of Rs. 25,000/- (Rupees Twenty-Five Thousand Only) to be paid to the petitioner by the State within a period of four (04) weeks from receipt of this order.
18. The present Special Criminal Application stands disposed of accordingly.
(SONIA GOKANI, J) (GITA GOPI,J) Bhoomi Page 32 of 32 Downloaded on : Fri Feb 03 20:56:49 IST 2023