Gujarat High Court
Bharatsinh Karshanbhai Rajput ... vs State Of Gujarat on 2 May, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/716/2022 ORDER DATED: 02/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 716 of 2022
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BHARATSINH KARSHANBHAI RAJPUT (CHAUHAN)
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1,2
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 MRS. JUSTICE MAUNA M. BHATT
Date : 02/05/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition preferred under Articles 21 and 226 of the Constitution of India seeking writ of habeas corpus for the alleged illegal detention.
2. It is alleged that petitioners were illegally detained in exercise of the powers under Section 107 read with Section 151 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Cr.P.C.'). It is further urged that the writ of habeas corpus be issued declaring the detention to be illegal and the compensation for illegal and arbitrary detention needs to be awarded.
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R/SCR.A/716/2022 ORDER DATED: 02/05/2022 2.1. The petitioners are the agriculturist with no past antecedents. They are farmers seeking opinion of concerned Revenue Officer for the purpose of claiming subsidy for installation of solar plants at the land of their relatives. The application, moved in that regard, was preferred before the Revenue Officer and the same was kept in abeyance. 2.2. The petitioner came in contact with one Mr. Harshad Patel who claimed to be the agent of certain revenue officers. What has been alleged is that on 06.12.2021 the petitioners entered into the office of respondent no.3 who is Mamlatdar of Taluka:-Lakhani, District:-Banaskantha. The petitioners asked certain uncomfortable questions about the mediator Mr.Harshad Patel who had demanded gratification on behalf of such officers. It is further averred that rather than taking the steps against the mediator, the petitioners are sought to be prosecuted and detained in the proceedings under Section 107 of the Cr.P.C. The Mamlatdar after the petitioners had initiated actions for filing complaints and chose to prosecute under Section 107 of the Cr.P.C. on 10.01.2022 for the alleged offence which took place on 06.12.2021. The Chapter Proceedings were registered and the formal complaint under Section 107 read with Section 151 of the Cr.P.C. had been lodged against the petitioners by the Police Sub-Inspector, Page 2 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 Agthala Police Station.
2.3. The petitioners were arrested on 11.01.2022 and were produced before the very Executive Magistrate on 12.01.2022 and then were directed to be produced before some other Executive Magistrate. The petitioners, before the Sub- Divisional Magistrate, were ordered to give bail of Rs. 15,000/- and two sureties of the like amount were to be furnished. Additionally and importantly, both the sureties were directed to be the government servants. 2.4. The petitioners had filed an application to accept the local sureties who were not government servants as, according to the petitioners, the order itself was prima facie against the settled norms with regard to the bail and sureties. 2.5. The petitioners made efforts on several occasions to contact the office of Anti Corruption Unit and on 15.01.2022, the petitioners filed complaint along with the conversations with the mediator/agent with specific allegations about the payment of gratification. The print media had also reported these aspects. The copy of media report is also forming part of the record.
2.6. Before this Court, the petitioners essentially averred Page 3 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 that the detention of petitioners under Section 107 read with Section 151 of the Cr.P.C. is completely illegal. The Apex Court in case of Rajendrasingh Pathaniya and others vs. State (NCT of Delhi) and Others [2011 (13) SCC 329] laid down that in case of imminent danger or likelihood of breach of peace, power under Section 107 of the Cr.P.C. is available. The arrest under Section 151 can only be justified when there is a design to commit cognizable offence. Thus, arrest of the petitioners can only be made if there is a design to commit cognizable offence.
2.7. In the present case, the FIR being I-CR No. 11195001220035 of 2022 is lodged with Agthala Police Station, Banaskantha for the offences under Sections 189, 228, 500 and 114 of the Indian Penal Code, 1860 (hereinafter to be referred to as 'the IPC'). The said FIR is for non- cognizable offence. Thus, conditions laid down under Section 107 read with Section 151 of the Cr.P.C. are not satisfied even as per the case of the respondent no.3 as the FIR is of the non-cognizable offence.
2.8. These glaring facts, according to the petitioners, are indicative of the scenario as to how a whistle blower is being prosecuted when the agent had demanded gratification for Page 4 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 and on behalf of the government servants and also when the respondent no.3 who allegedly accepted gratification also is not being prosecuted.
2.9. According to the petitioners, the respondent violated the statutory as well as fundamental rights of the petitioners. The action is inhuman, arbitrary and having no legal sanction and detention of the petitioners is on the face of it illegal. To him, the breach of peace can never be the reason for proceeding under Section 107 of the Cr.P.C. It has been well laid down in the various cases by the Apex Court and such use of Section 107 read with Section 151 of the Cr.P.C. has been deprecated severely.
3. Seeking the prayers at para 9, as reproduced profitably, it is urged that the initiation of the prosecution on the part of the respondent is completely contrary to the settled position of law. Request is also made for staying the proceedings of Chapter Case No. 09/2022:-
"(a) To allow this petition;
(b) To issue a writ of habeas corpus and/or any other appropriate writ, order or direction declaring the detention of the petitioners in connection with Chapter Case No.9 of 2022 by the Officer In Charge, Aagthala Police Station, Taluka Lakhani, District Banaskantha as malafide, illegal and bad in law and further be pleased to award appropriate compensation to the petitioners in connection with Page 5 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 their illegal detention and pass all other consequential orders in that regard;
(c) Pending admission, hearing and final disposal of the present petition, to stay the proceedings of Chapter Case No.9 of 2022 by the Officer In Charge, Aagthala Police Station, Taluka Lakhani, District Banaskantha as well as the FIR being CR No. 1119500122003 of 2022 is lodged with Aagthala Police Station, District Banaskantha;
(d) Pending admission, hearing and final disposal of the present petition, to direct that the petitioners be awarded appropriate compensation in connection with their illegal detention concerning Chapter Case No.9 of 2022 by the Officer In Charge, Aagthala Police Station, Taluka Lakhani, District Banaskantha and pass all other consequential orders in that regard;
(e) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
4. This Court required the details culled out from the oral submission of learned APP by way of an affidavit of the officer. Such details chronologically are provided in the affidavit of respondent no.3 - Mr. Kunj Patel, Mamlatdar, Lakhni filed on 03.02.2022. It would be apt to reproduce the same hereunder:-
No. Date Event
1. 10.10.2021 Online application for non-agricultural conversion submitted by Shri Jagatabhai Rajput.
2. 21.10.2021 Pre-Security Officer raised queries regarding tenure and title of land.
3. 03.11.2021 Ms. K.P.Patel joined as Mamlatdar, Lakhni by transfer order.
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4. 17.11.2021 She gave her opinion regarding the subject.
5. 03.12.2021 Collector Banaskantha decided the application as per rules.
6. 06.12.2021 Petitioner nos. 1 and 2 pursued the matter although they had no locus and they went live on Facebook and thereby menaced the female officer and demanded refund of application fees from her and threatened to call the media as well as threatened her to make a statement regarding the opinion given by her on the NA application.
7. 08.12.2021 Joint meeting was held in presence of the Revenue Minister for ascertaining the facts.
8. --- The matter was presumed to have been settled however, the Mamlatdar was still yet disturbed from the time the Facebook live incident on 06.12.2021 had happened. As a responsible officer and public servant, the police complain was not filed by her to peacefully resolve the matter.
9. --- According to the respondent, Harshad Patel is not an employee of Mamlatdar Lakhni Office nor of the Collector Office, Banaskantha. There is no financial demands having been made by Mamlatdar nor any staff of her office and no contact has been made with that person. Hence it is submitted by respondent that despite having communicated these facts, the petitioners repeatedly defamed her on media and social media.
10. 08.01.2022 Further grievance is made that on 08.01.2022, petitioner no.1 had uploaded again a video clip showing the face of the respondent - Mamlatdar on his Facebook work-page "Car Care Workshop" and started circulation of Audio/Video clips on WhatsApp and Press Media. This was nothing but an act to defame her and all Revenue Officers.
11. 10.01.2022 She submitted an application at Agthala Police Station as her personal reputation was being compromised.
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12. 11.01.2022 Police had taken the preventive action as per Chapter VIII of Cr.P.C.
13. 12.01.2022 Petitioners were granted interim bail till 17.01.2022 pending the chapter proceedings.
14. 13.01.2022 The baseless allegations and other activities by petitioner no.1 over social media did not stop and therefore, the FIR was lodged.
15. 17.01.2022 Petitioners approached this Court through their lawyers who also remained present in the Court of SDM and the bail was extended for a week in view of the present proceedings for avoiding the multiplicity of proceedings.
4.1. The detailed report of Mamlatdar, Lakhni in Gujarati language on 28.01.2022 is forming the part of the record. 4.2. Independently, the report sent to the learned APP dated 28.01.2022 is pressed into service by pointing out to this Court that in Village Kuvarna, Taluka Lakhni, the applicant - Jagtabhai Jethabhai Rajput had made an application on-line with an Application No. 30213202100672 on 10.10.2021 for making the land non-agricultural. The land is in the name of Shri Jagtabhai Jethabhai Rajput. The application is not preferred by him and therefore, neither Karshanbhai Chauhan nor Bharatbhai Chauhan has got anything to do with this parcel of land. Bharatbhai Chauhan is also not having any land in his name and is not a signatory to the application made for getting the land non-agricultural. Page 8 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022
R/SCR.A/716/2022 ORDER DATED: 02/05/2022 4.3. Thus, it is contended that neither Bharatbhai Chauhan nor Karshanbhai Chauhan has got any connection with the said application and yet, an attempt is made on their part to defame the entire Revenue Sector. Mamlatdar was asked the opinion on 21.10.2021 pursuant to the said inquiry by Pre Scruity Officer (PSO) and therefore, Mamlatdar, Lakhni had given a clear opinion that Survey No. 109, the old survey no. 26P5 hector RA-3-41-97 sq.mtr when examined along with the 7/12 abstract, there is no clarity as to what kind of a land it is and therefore, the opinion on 17.11.2021 is negative. Thereafter on 03.12.2021, the Collector, Banaskantha at Palanpur after following the due procedure had filed this application.
4.4. On 06.12.2021, Bharatbhai Chauhan and his father - Karshanbhai Chauhan had visited Mamlatdar's Office and inquired as to why the said application was filed. During the conversation, without the permission, he had started the Facebook and made it live. This video recording was done by the 3rd party in relation to the government servant. He was also given to understand as to what was the law and the actual details which were available in record, however, he was not ready to accept any of those explanations and had instead Page 9 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 threatened to call the print/electronic media. He also insisted on giving the statement before the media and this had caused lot of mental harassment to the Mamlatdar. 4.5. Moreover, according to the Mamlatdar, she was being alleged by entering her chamber and she was also mentally harassed. Being a Woman Officer, she was all by herself and was feeling unsecured. She was present during the office hours and yet, the third party had given a wrong information that she had left the office and through Facebook live and media, no stone was left unturned to question her credentials and to defame her.
4.6. On 08.12.2021, Mamlatdar, Deputy Collector and Additional Collector, Gandhinagar were called by the Revenue Minister and a meeting was convened. All concerned were given the details as to in what manner the decision had been recorded. As per the integrated On-line Revenue Application Software, an application was moved for NA permission. This application is accepted only after the fees are paid. The application firstly goes to Pre Scrutiny Officer in his login. The Pre Scrunity Officer is a senior Revenue Officer with knowledge and experience and hence, the preliminary examination is made at his level. If there are any queries with Page 10 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 regard to the title or a kind of land for which the NA permission was sought from the concerned officer, after once the opinion is obtained from the concerned office, it goes to the log in of Collector Office and there are three options either to allow the application or disallow or to file it. Once, it is disallowed, there is no option for once again making an application, but, if the application is filed, the applicant is also permitted to once again pay the fees and request in iORA software to review such application. Thus, even if at the time of first application, the fees are paid, once again at the time of review, the fees need to be paid.
5. The affidavit-in-rejoinder filed on behalf of the petitioner to the affidavit-in-reply filed by the respondent no.3 is forming the part of the record where he has denied each and every allegations. According to the petitioner, there was no apprehension of commission of cognizable offence which is prerequisite for exercising of power to register a chapter case. If the respondent no.3 was aggrieved by the action of the petitioner of live streaming incident on Facebook and found it defamatory, it had a remedy of private complaint, however, a chapter case was unjustifiable. Petitioners cannot be subjected to detention in exercise of powers under Section 107 read with Section 151 of the Cr.P.C. Petitioners not being Page 11 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 hardcore criminal nor having criminal past and when their character is not an issue, nothing justifies the invocation of powers to register a chapter case.
5.1. It is further submitted that one Mr. Harshad Patel moved a complaint dated 14.01.2022 against the present petitioners preempting proceedings against them as the said individual had blatantly demanded money on behalf of the government servants. It is with a view to save its own skin that he has made a complaint. It is therefore urged by the petitioners that freedom of speech and expression would be under serious threat if a live post concerning distasteful conversation by an individual with a government servant is considered to be a subject matter of invocation of chapter case. The entire procedure of seeking bail in chapter case without inquiry is completely illegal.
6. In case of Ahmed Noormohmed Bhatti vs. State of Gujarat and others [(2005) 3 SCC 647], the petitioner had preferred a petition before this Court under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure. He had prayed for the quashing of the criminal proceedings initiated against him on the complaint of respondent nos. 5, 6 and 7. He also prayed for a declaration Page 12 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 that Section 151 of the Cr.P.C. is unconstitutional and ultra vires. This Court rejected the petition holding that there was no ground to hold that Section 151 of the Code was unconstitutional and there was no ground to quash the proceedings initiated against the petitioner in which the process had been issued.
6.1. This had travelled to the Apex Court. The petitioner urged that on 11.12.1995 a complaint was made by the Deputy Superintendent of Police, Kuchchh regarding the incident that took place on 09.12.1995. The statements were recorded on 13.12.1995 and it was alleged that the petitioner was detained by the Inspector of Police, Bhuj on 16.12.1995 under Section 151 of the code, however he was produced before the Magistrate under the chapter proceedings under Sections 107 and 116(3) of the code which was initiated on the basis of the complaint of the respondent no.5 therein. The FIR also was lodged against him alleging the commission of offence punishable under Sections 504, 506 and 507 of the IPC on a complaint made by another respondent which was respondent no.6. On the strength thereof, the police investigated and had taken the steps. The Apex Court held that the mere perusal of Section 151 of the Cr.P.C. makes it clear that conditions under which the police officer may arrest Page 13 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 the person without an order from a Magistrate and without a warrant have been laid down under Section 151, he can do so only if he has come to know of a design of a person concerned to commit any cognizable offence. A further condition for exercise of such power is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. Therefore, it expressly lays down the requirement for the exercise of the powers to arrest without an order from the Magistrate and without a warrant. If these conditions are not fulfilled, the arresting authority may expose to proceeding under law. Sub-section (2) also lays down the rule that normally a person so arrested shall be detained in custody not for a period extending 24 hours. In absence of anything else on expiry of 24 hours, he must be released. The Court further has held that the release is not insisted upon only when his further detention is required or authorized under any other provision of the Code or of any other law for the time being in force. Therefore, if before the expiry of 24 hours of the detention, it is found that the person concerned is required to be detained under any other provision of the Cr.P.C. or of any other law for the time being in force, he may not be released and his detention may continue under such law or such Page 14 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 provision. The detention is not under Section 151 of the Code but under the relevant provision of the Code for the time being in force. Thus, the central aspect which has been emphasized is that the provision of Section 151 for arrest of a person is to prevent the person from the cognizable offence. 6.2. The Apex Court also referred to the Joginder Kumar vs. State of U.P. [(1994) 4 SCC 260] and the case of D.K.Basu vs. State of West Bengal [(1997) 1 SCC 416] holding that these requirements are in addition to the constitutional and statutory safeguards and do not detract from the various directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrest. The Apex Court also cautioned that any failure to comply with these requirements shall, apart from rendering the official concerned liable for the departmental action can also make him responsible for punishment for contempt. 6.3. Section 151 when is exercised, the requirements specified in case of Joginder Kumar (supra) as well as in D.K.Basu (supra) would apply. Thus, to an arrest made under Section 151, both these would have an applicability. The Court, therefore, held that Section 151 itself makes a provision for circumstances in which an arrest can be made Page 15 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 under that section and places a limitation on a period for which a person so arrested may be detained. There are inbuilt guidelines and the statutory guidelines read with the requirements laid down in Joginder Kumar (supra) and D.K.Basu (supra) provide an assurance that powers shall not be abused and in case of abuse, the authority concerned shall be adequately punished. This provision, therefore, was not held to be unreasonable or arbitrary nor unconstitutional. 6.4. Having found that the proceedings by the police were not motivated by any personal animosity but on a complaint made by the private persons under the law, the Court also agreed with the High Court of not quashing the proceedings.
7. In case of Ram Mehar Singh vs. State (NCT of Delhi) and others [(2011) 14 SCC 732], the question was the misuse of powers by the police authorities while resorting to the provisions of Section 107/151 of the Code and thereby violating the fundamental rights of the citizens. There are many petitions which had been heard together. The Court noticed that in one of the criminal appeals, the SHO of the police station had received a complaint that the water from his toilet had been entering into the house of the complainant and that damaged the entire wall because of the seepage and Page 16 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 foul smell also was coming. The person against whom it was alleged, refused to carry out the repair and quarreled with the complainant and had beaten him. Because of such complaint, the respondent no. 2 - Keshavkumar who was alleged to be responsible was detained under Section 107/151 of the Cr.P.C. on 16.07.2006 and was produced on 17.07.2006. He was directed to be released on furnishing of personal bond with one surety of the like amount. As he failed to furnish the personal bond, he was sent to the judicial custody and was released on 18.07.2006.
7.1. He preferred a writ petition alleging violation of fundamental rights and misuse of provision of Section 107/151 of the Cr.P.C. The token compensation was given to the complainant to the tune of Rs. 50,000/- and further direction was issued to the Commissioner of Police to initiate the disciplinary inquiry after quashing the proceedings. The State challenged this. The High Court's decision that the proceedings under Section 145 could have been resorted to instead of Section 107 and 151 of the Cr.P.C. which was not held to be correct. According to the Apex Court, it is the officer of spot who has to take decision as to what provision should be resorted to according to the prevailing circumstances and if there had been an alteration, abuse, Page 17 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 threat and beating, that by no means can be held that resorting to the provisions of Sections 107 and 151 was totally unwarranted. Eventually, the Court set aside the judgment and order to the extent that in all the cases proceedings under Section 107/151 stood quashed giving a liberty to file a special suit for recovery of immovable property.
8. The Delhi High Court in case of Aldanish Rein vs. State of NCT of Delhi [2018 SCC OnLine Del 12207] was dealing with a petition filed by an advocate under Article 226 of the Constitution of India in public interest highlighting a serious issue concerning the working of Section 107 and 151 of the Code. The petitioner was appointed as a jail visiting advocate on the panel of the Delhi High Court Legal Service Committee. He was approached by a person who was languishing in a jail for the past 5 years. It was averred that one Narendra was picked up from Swaroop Nagar by an Officer of Delhi Police attached to PS Swaroop Nagar. He was booked under Section 107 and 151 and thereafter produced before the Special Executive Magistrate (SBM). He was sent to the judicial custody without supplying any documents or even a copy of the order. His relatives were also not informed of such arrest. The petitioner, therefore, had filed a PIL before the Apex Court which was pending.
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R/SCR.A/716/2022 ORDER DATED: 02/05/2022 8.1. The Court examined the larger issue that there were similar cases where the powers under Section 107 and 151 were being invoked to preemptively detain/arrest persons with there being no guidelines as such as to the procedure that had to be followed and the period for which such persons are to be detained. There also was no basis to determine the amount of surety that the detenue was asked to furnish considering that the liberty of such person is being curtained by use of statutory powers. A further question which was addressed was the provision of legal aid to such persons to make them aware of their rights and whether they were in fact served with the notices, were being heard and whether their near relatives who were being informed about the factum of their arrest. This had led the Court to the historical background of origin of Sections 107 and 151 when Justices of the Peace (J.Ps.) were given the powers for the maintenance of the peace. The Delhi High Court also discussed at length the decision of Madhu Limaye vs. Sub-divisional Magistrate, Monghyr [(1970) 3 SCC 746] where the Apex Court has analyzed Section 107 of the Cr.P.C. in context of Article 22 at length and other decisions such as Sunil Batra vs. Commissioner of Police and Tavinder Kumar vs. State to hold the guidelines which have been issued are not merely Page 19 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 directory provisions. Noncompliance of which can be overlooked by a public officials exercising coercive criminal powers of arrest and remand. They are duty bound as public officials exercising the statutory powers to be not only aware of the requirement of constitutional law, but also, scrupulously follow them at every instance of exercise of such powers. The Court issued a detailed guidelines to ensure that the provisions are not abused or misused by Special Executive Magistrate.
"71. Nevertheless, it finds it necessary to issue series of directions to ensure that the provisions are not abused or misused by the SEMs as under:
(i) As far as the NCT of Delhi is concerned, the Lieutenant Governor („LG‟) will consider setting up an oversight mechanism to periodically review the exercise of powers by the SEMs under Sections 107 and 151 Cr PC. Such mechanism can consist of retired District Judges. Corrective action requires to be taken to check the abuse of powers. The LG will also consider calling these public officials as Special Executive Officers rather than SEMs as the appellation Magistrate is likely to be mistaken for a Judicial Magistrate which SEMs clearly are not.
They are, at present, invariably police officers who simultaneously function as ACPs.
(ii) Since the arrest is only „preventive‟, the LG will consider issuing instructions to the prison authorities to create separate spaces within the jail so that the persons who are arrested are not mixed up with the other persons arrested for actual commission of offences.
(iii) The period of judicial custody under Sections 107/151 Cr PC at any one given point in time, will never exceed more than seven (7) days. There must be a weekly review by the SEMs exercising the Page 20 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 powers concerned, of the need to continue detention.
(iv) In particular, after directing the release of a person upon furnishing a personal bond and not insisting on surety where such a person is not in a position to furnish surety, the SEM‟s task will not end. The SEM will keep the matter pending for follow-up on whether the person has actually been released on having furnishing a personal bond and / or surety. If within two days of the order of release, if a person has actually not come out of the jail, the SEM should inquire into the situation and pass further orders to ensure the release of such persons by either accepting a personal bond of such person and/or surety of a lesser sum, if at all, that can be afforded by such person.
(v) No order of remanding a person to a judicial custody can be passed by the SEM without satisfying himself:
(a) That the person arrested has been informed of his constitutional rights under Articles 20, 21 and 22 of the Constitution. The SEM should himself explain or have it explained to the person in his presence in a language understood by that person of the aforementioned constitutional rights.
(b) The SEM must ask the person arrested whether he has been informed, in the language understood by him, of the grounds of his arrest and this record this in the order that he is going to pass.
(c) The SEM will ask the person whether he wishes to engage a lawyer of his choice and also inform him that he can avail the services of a remand advocate who will remain present when these proceedings are being conducted.
(d) The SEM will allow the remand advocate to interact with the person arrested outside the hearing distance of the police officers who have got the person arrested in order to enable the remand advocate to obtain the necessary instructions.
(e) The SEM will ensure that the remand advocate is performing his functions as required under the LSAA i.e. he is also a person aware of the Page 21 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 constitutional rights of a person arrested and will act accordingly.
(f) The SEM will record in his proceedings that all of the above provisions have been effectively complied with.
(vi) Despite the numerous orders passed and reports given by LCI and NHRC, the ground situation does not appear to have changed. One clear pointer is to the lack of the training of the SEMs in the provisions of the Constitution and the Cr PC and the various judgments pronounced by the Courts from time to time. Consequently, the following directions are issued by the Court:
(a) Not later than from two months from today, the DSLSA in association with Delhi Judicial Academy will conduct a three- day training workshop for a batch of at least 20 SEMs who are currently holding those positions and train them on the constitutional requirements of their role. The background reading material prepared will comprise the aforementioned decisions of the Court with the reports of the LCI, NHRC as well as this decision and a detailed set of instructions as to how the SEMs should exercise the powers under Sections 107 and 151 Cr PC and even the model orders that they could follow.
(b) The training, apart from lectures, should involve engaging the participants in role play so that there is a practical hands-on experience of how to deal with a real-life situation.
(c) The participants in the training workshop will also include the ACPs of the different areas.
Former police officers of senior ranks, former District Judges and former IAS officers will all form part of the resource persons to impart such training apart from former academics, serving judges and senior lawyers well-versed in the area of criminal law.
(d) Within a period of six months from today, such training workshops will be conducted at regular intervals so that a maximum number of SEMs exercising powers under Sections 107 and 151 Cr PC receive the training. This exercise will be Page 22 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 repeated after a period of one year with the next set of SEMs when they are vested with the powers under Section 151 and 107 Cr PC.
(vii) The Principal Secretary, Home will periodically visit the Courts of SEMs on a spot checking on a surprised check basis accompanied by the Secretary, DSLSA to ensure that the misuse of the powers of the SEMs is curbed. This should happen at least once or twice in every month.
(viii) When a person is booked under Chapter-8 proceedings and asked to furnish surety bonds, the practice at present is to send the surety bonds to the concerned SHO for verification. The person is not released till such a verification is complete. Instead, it is directed that the person arrested should be released on his personal bond till such time the verification is complete instead of sending him to judicial custody.
(ix) A board should be placed outside the office of the SEM not only in English and Hindi but also in other languages spoken by a sizeable population in the area concerned which would display the requirements under law i.e. the Constitution, the Cr PC and the LSAA. It will caution the person arrested to beware of touts. The board will also display the name of the remand advocate along with his/her contacts and details. The board will inform the person arrested that the amount to be filled in a bail bond is not to given in cash to anyone and that the SEM is not a Judicial Magistrate.
(x) The Superintendent of the Tihar Jail, the Rohini Jail and the Mandovi Jail will ensure that whenever a prisoner is received as a result of the judicial remand order of the SEM, such prisoner shall not be kept in the same ward or in the same place where other undertrials or convicts are kept, but in a separate wing and provided easy access to the legal aid counsel, particularly of lawyers from the DLSA."
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9. Before applicability of these judgments in the given set of facts and circumstances considered, on the part of learned advocate appearing for the applicants it is urged that he is not inclined to pursue this matter any further in wake of the two sureties other than government officials are being accepted. Respondent no.3 also is not inclined to pursue the FIR being I- CR No. 11195001220035 of 2022 lodged with Agthala Police Station, Banaskantha.
10. A question as to whether the freedom of speech and expression would be under serious threat if the live streaming on Facebook or any other media is made by an individual of his conversation with the government servant and whether that can be a matter of invocation of chapter case, would not required to be concluded. The law on the subject is quite clear where the Courts have not tolerated the misuse of powers by any authority while resorting to the provisions of Section 107/151 of the Cr.P.C., if that would amount to violating the fundamental rights of the citizens. The Courts have gone to an extent of awarding compensation and directing the initiation of the departmental proceedings against the erring officers. Page 24 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022
R/SCR.A/716/2022 ORDER DATED: 02/05/2022 10.1. In the matter on hand, the petitioners have come in contact with one Mr. Harshad Patel who is a self-proclaimed agent of certain Revenue Officers. When an on-line application for non-agricultural conversion was submitted by one Shri Jagtabhai Rajput, the questions were raised with regard to the tenure and title of the land and eventually respondent no.3 had given her opinion on the subject. The petitioners were interested in the land but had no title nor any locus. They were aggrieved by the denial of the application of conversion of land into non-agricultural status. They went live on Facebook and demanded the refund of application fees from the respondent no.3 and also threatened to call the media. Respondent no.3 was also asked to make a statement regarding the opinion given by her on NA application. This conversation was made live on Facebook on 06.12.2021. It is a grievance on the part of the respondent no.3 that on 08.01.2022, the petitioner no.1 has once again uploaded the video clip showing the face of the respondent - Mamlatdar on his Facebook. Being aggrieved by the same, she had applied to the Agthala Police Station that her personal reputation was at stake and police took action as per Chapter-8 of the Cr.P.C. where the petitioners have been granted interim bail pending the chapter proceedings on 17.01.2022 and according to the Page 25 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 respondent when the baseless allegations and activities of the petitioners on social media did not stop, the FIR was lodged. 10.2. Whether there was an uploading of video on Facebook on 08.01.2022 and whether such live streaming even if on a baseless matter can give rise to the invocation of powers under Chapter-8 of the Cr.P.C. are the questions which can be answered on due adjudication of the matter. As the petitioners have already been granted the interim bail on 17.01.2022 pending the chapter proceedings and the insistence on the part of the respondent no.3 for the government officials as sureties of his would not require any further indulgence in wake of the two persons other than government servants having been accepted as the securities and when the petitioners themselves are not inclined to pursue this remedy with an assurance on the part of learned APP on receiving instructions that neither this equilibrium is going to be disturbed not the FIR is to be pursued, the Court would not like to conclude these questions raised before it.
11. However, while parting, it is utmost desirable for the Court to make a mention of the fact that this has all started on account of the petitioners having trusted Mr. Page 26 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 Harshad Patel as a self-proclaimed agent of the Revenue Officers. He appears to have an audacity to demand money for and on behalf of the government officials, without verifying any of these details from the concerned officers and even without looking into the credentials of Mr. Harshad Patel, the petitioners have chosen to believe this agent and acted upon his words. It is absolutely preposterous to trust such self- proclaimed agent and build an opinion in relation to the government officials on the strength thereof. The petitioners went to an extent of then placing the same on the social media. Whether that could have actually threatened the respondent no.3 necessiating the preventive actions under Chapter-8 of the Cr.P.C., is a question which is not answered by this Court. At the same time, a so called culture of agents in the government offices would need serious consideration at the hands of the Chief Secretary of the State of Gujarat and the Principal Secretary, Revenue Department of the State of Gujarat.
12. Let serious and exemplary actions be initiated against all those persons who even dare to proclaim themselves as agents or attempt to act as one. A detailed guideline is necessary to be provided for the consumption of the public Page 27 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022 R/SCR.A/716/2022 ORDER DATED: 02/05/2022 and in every government office, more particularly, in the revenue department. It is expected that at conspicuous places, the boards must reflect fallaciousness of such claim and the stricter actions/punishment prescribed for such attempt which could be also by way of an official communication or an officially made clips circulated in the social media for the common man to be made aware. This will also bring clarity in the minds of common men and would preclude them from being prey or being enticed with such falsehood. This may also deter those unscrupulous government servants who may be indirectly resorting to such corrupt practices.
13. While dismissing and disposing of this petition in wake of the developments, it is ensured that the respondent shall not delay in withdrawal of the criminal complaint.
(SONIA GOKANI, J) (MAUNA M. BHATT,J) Bhoomi Page 28 of 28 Downloaded on : Sat Dec 24 16:07:49 IST 2022