Telangana High Court
T. Srinivas Reddy vs Banotu. Saksam on 9 November, 2022
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CONTEMPT CASE No.216 OF 2022
ORDER (ORAL):
This contempt case is filed seeking punishment to the respondent - contemnor for his willful disobedience, disrespect and violation of the order passed by the Hon'ble Apex Court in Arnesh Kumar v. State of Bihar1 in connection with Crime No.225 of 2020 dated 21.03.2020 registered for the offences punishable under Sections 341, 186 and 506 of the Indian Penal Code 1860.
2.1. It is stated that the petitioner's brother is owner of the Flat in MIG-29 Block, Phase - III, KPHB Colony, in Survey No.1009 of Kukatpally. The petitioner is nothing to do with the said property. Construction activity was carried out by the petitioner's brother and his co-owners/share-holders of MIG-29 Block in Survey No.1009 which was allotted to them by the Telangana Housing Board and there is no encroachment. 1 (2014) 8 SCC 273 2 2.2. While so, under the guise of an alleged gift deed, officials of the Greater Hyderabad Municipal Corporation started constructing a compound wall on an extent of 228.22 square yards instead of 191.6 square yards encroaching into the land of MIG-29 owner. Hence, the owner of the Flat in MIG-29 Block and the petitioner's brother have filed W.P. No.1802 of 2021 before this Court to stop illegal encroachment and this Court has granted interim stay pending adjudication of the matter.
2.3. It is stated that on 21.03.2020 at about 8.30 a.m., some persons viz., V. Prasanthi, Sridhar, Rajeshwari, Kumar, Manikyam and four unknown persons demolished structures with mala fide intention and ulterior motive without notice or explanation and when the owners including the petitioner questioned them, they informed the petitioner that they belong to GHMC Department and as per the instructions of the M.L.A. Mr. Madhavaram Krishna Rao and his Personal Assistant viz., Amarnani Sathyanarayana, they have demolished the structures.
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2.4. It is stated that the GHMC officials without any right, title and possession, encroached the land belonging to the owners of the House bearing No.MIG-29/F-1/F-3/F-5, Phase - III, KPHB Colony. There is nothing on record to show that the land where construction was undertaken belongs to the GHMC.
2.5. It is stated that due to political pressure, the Police of K.P.H.B. Police Station with active collusion of the GHMC officials, implicated the petitioner along with his colleagues in the false case. Further, without any intimation or notice to the petitioner, police lifted him from his house without following due process of law and procedure and arrested him on the early morning of 17.09.2020 at 5.20 a.m. 2.6. It is stated that the respondent made the petitioner to sit in the police station full-day without providing food or any facility, not allowed him to call any of his friends or family members, behaved rudely and abused him.
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2.7. The respondent produced the petitioner along with his colleagues before the learned II Additional Junior Civil Judge - cum - X Additional Metropolitan Magistrate, Kukatpally, Cyberabad during evening hours, however, the learned Judge dismissed the remand application filed by the respondent by passing the following orders:
"The remand case diary shows that Section 41- A Cr.P.C. Notice was issued to A1 to A4 on 17.09.2020 i.e., Today itself. The Notice further shows that 3 days time is given to A1 to A4 to comply with terms and conditions. But without waiting for the said period, today itself, A1 to A4 arrested and brought before this court for remand. The investigating officer has not given any explanation as to how he could arrest the accused on the same date of notice and that too, when accused are given three days of time to comply with terms of notice. The investigating officer has failed to follow the guidelines issued by Hon'ble Supreme Court in Arnesh Kumar Vs State of Bihar. Therefore the accused cannot be remanded as prayed for. A1 to A4 are set at liberty with a direction to appear before the court as and when they receive summons from the court.5
However to secure future presence of A1 to A4 before this court, A1 to A4 are directed to furnish each a personal bond for Rs.10,000/- (Rupees Ten Thousand Only) with two sureties for the like sum each."
3. Heard Mrs. B. Rachna Reddy, learned counsel for the petitioner, and Mr. Vinod Kumar Deshpande, learned Senior Counsel, appearing for Mrs. Devineni Radha Rani, learned counsel for the respondent - contemnor, and perused the material on record.
4.1. It is contended by the learned counsel for the petitioner, that the action of the respondent in not complying the procedure laid down under Section 41-A of Cr.P.C. is contemptuous and is in utter violation of the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar's case (Supra 1). The respondent, having given three (3) days time to comply with the notice under Section 41-A of Cr.P.C., intentionally abused his power and produced the petitioner for remand before the concerned Magistrate on the same day evening i.e., 17.09.2020.
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4.2. Later, as the complaint lodged by the brother of the petitioner against highhandedness of the GHMC officials was refused to register by the police, the petitioner's brother filed private complaint before the learned II Additional Junior Civil Judge cum X Additional Metropolitan Magistrate, Kukatpally, Cyberabad who took cognizance of the offence and on his directions, the police have investigated into the crime and registered F.I.R. No.83 of 2021 dated 30.01.2021 for the offences under Sections 447, 341, 352, 323, 427 and 120B read with Sections 34 of the Indian Penal Code 1860 and Section 156(3) of the Code of Criminal Procedure 1973 against the officials of the GHMC.
4.3. The learned counsel for the petitioner has further submitted that as the offences alleged against the petitioner are, admittedly, punishable with less than seven years of imprisonment, arrest of the petitioner was not necessary, more particularly, when the notice under Section 41-A of Cr.P.C. was issued. The manner in which the petitioner was subjected to harassment also indicates that the respondent has deliberately and highhandedly exceeded his 7 jurisdiction and acted contrary to the procedure established under law and the guidelines issued by the Hon'ble Supreme Court in Arnesh Kumar's case (Supra 1); The respondent lifted the petitioner from his house early morning at 5.00 a.m. The respondent was not wearing his uniform is also evident as per C.C. T.V. footage produced by the petitioner.
5.1. Learned senior counsel appearing for the respondent has submitted that the respondent has filed a detailed counter affidavit to the contempt case, however, having realized the mistake committed by him, additional counter affidavit has been filed by him. It is stated that under reserved category of the Scheduled Tribe, the respondent was recruited as Sub Inspector of Police through Police Recruitment Board in 2012. After training period, he joined at Narsingi Police Station, Rajendra Nagar Division and worked there during January 2014 to May 2016. Subsequently, he worked in the I.T. Cell at Cyberabad Police Commissionerate, thereafter in the K.P.H.B. Police Station and at present working at Chowdargudem Police Station, Shadnagar Division. During his eight years of service, has not contravened 8 the provisions of 41-A of Cr.P.C. It is admitted by the respondent that notice under Section 41-A of Cr.P.C. dated 17.09.2020 was issued to the petitioner along with other accused on 17.09.2020 allowing three (3) days time to them to show cause / reply. Thereafter, noticing that the petitioner was involved in several crimes i.e., (1) Crime No.82 of 2015, (2) Crime No.140 of 2015, (3) Crime No.297 of 2015, (4) Crime No.51 of 2018 on the file of Jagadgirigutta Police Station, and (5) Crime No.226 of 2020 of K.P.H.B. Police Station, Cyberabad, prepared a check list as required under Section 41(1)(b)(ii) of Cr.P.C., arrested the petitioner and produced him before the learned Metropolitan Magistrate, Kukatpally, Cyberabad, for judicial remand. However, the learned Magistrate refused to accept the remand as the guidelines issued by the Hon'ble Supreme Court in Arnesh Kumar's case (Supra 1) were not followed. It is also stated that the respondent ought to have refrained from arresting the petitioner to produce him before the learned Magistrate for remand, having given three (3) days time for reply to the notice under Section 41-A of Cr.P.C.
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5.2. The learned senior counsel appearing has submitted that the respondent never flouted any orders or has committed any lapses at any point of time during his eight (8) years of service. He has got utmost regard to the orders / guidelines issued by the High Court and the Hon'ble Supreme Court and tendered unconditional apology for the lapse committed by him; it is stated that the lapse is neither willful nor wanton. The respondent sought leave of this Court to withdraw the contents of the counter affidavit filed by him in this contempt case by tendering unconditional apology. It is submitted that the respondent has still twenty five (25) years of service and requested this Court to accept his unconditional apology and to take a lenient view in the matter.
5.3. The learned senior counsel has also submitted that the contempt case is barred by limitation as the same is filed two years after the alleged incident that too after filing charge sheet by the respondent against the petitioner which shows that the petitioner has no bona fides in instituting this contempt case. If the petitioner was really aggrieved, he would have approached this Court immediately after his arrest.
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6. Fortunately, the learned Magistrate did not accept the remand, else, the situation would have very serious. It is not in dispute that the petitioner was not remanded. In tune with the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar's case (Supra 1), the learned Magistrate rejected the application filed by the respondent for remand of the petitioner. As it is stated in the additional counter affidavit of the respondent that he has not committed any lapses earlier and has tendered unconditional apology, taking the age and leftover service of the petitioner into consideration, this Court takes a lenient view warning the respondent to be careful in future while discharging duties and to strictly follow the provisions of the Law, more particularly, Section 41-A of Cr.P.C. while conducting investigation in any crime as well as the guidelines/orders of the Hon'ble Supreme Court in Arnesh Kumar's case (Surpa 1).
7. With the directions and observations as above, the contempt case is closed. No order as to costs.
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As a sequel thereto, miscellaneous applications, if any, pending in the contempt case stand closed.
______________________ B. VIJAYSEN REDDY, J November 9, 2022.
PV