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2018 DIGILAW 746 (ORI)

Sanjib Ku Das v. Ranjit Ku Prusty

2018-08-20

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S. N. Prasad, J. - This is an application filed under Section 14 of the contempt of Court's Act, 1971 for initiating appropriate proceeding under contempt of Court's Act for violation of guideline/requirement prescribed by the Hon'ble Supreme Court in the case of D.K. Basu vrs. State of West Bengal and Others , (1997) SCC(Criminal) 92 and punish the opposite parties for such action amounting to for contempt of Court's Act. 2. The proceeding under the aforesaid Act has been sought to be initiated on the ground of facts which is being enumerated herein below. The petitioner who claims to be a member of an NGO known as "People For Animal" got the information on 19.07.2008 that one Truck bearing Registration No.OR-04-A-0597 driven by one Julfukar Alli Khan was carrying 65 cows out of which at least three cows were dead by that time. He being a public Activist particularly being an animal right activist intimated the same to the opposite party no.1, who on getting such information lodged an F.I.R. on 20.07.2008 and registered as Madhupatna P.S. Case No.128 of 2008 corresponding to G.R. Case No.866 of 2008. The driver in question was taken to custody and found the cows being hornless. The said Julfukar Alli Khan has also instituted a criminal case against the petitioner on 26.07.2008 bringing therein allegation of extortion registered as Madhupatna P.S. Case No.131 of 2008 corresponding to G.R. Case No. 878 of 2008 acting upon the said report, the opposite party no.1 arrested the petitioner on 26.07.2008 and forwarded him to the jail custody in the midnight. It has been alleged that while arresting the petitioner, the guideline stipulated in the case of D.K. Basu has not been followed, hence the instant contempt application has been filed in pursuance of the observation made by the Hon'ble Supreme Court in the aforesaid judgment. 3. This Court has issued notice to the opposite parties, in terms thereof, show causes have been filed. 3. This Court has issued notice to the opposite parties, in terms thereof, show causes have been filed. First being on 27.01.2010 by one Sri Ranjit Kumar Prusty working at that time as Inspector In-charge, Sadar P.S. stating therein that the petitioner at the time of arrest at 9 PM on 26.07.2008, which was immediately intimated through VHF message to IIC, Chandrasekharpur P.S. regarding his arrest and further it was intimated to the family members of the petitioner residing within the jurisdiction of Chandrasekharpur P.S. It has then stated that one of the friend of the petitioner namely Jiban Das was having Mobile Phone at the time of arrest and as such presumed that it must have been intimated to his family member. It has been then stated that after being intimated by the officer of the Chandrasekharpur P.S. went to the residence of the petitioner and informed about his arrest by the Madhupatan P.S., hence the allegation leveled against them with respect to the violation of the guideline stipulated by the Hon'ble Supreme Court in the case of D.K. Basu is not correct. Opposite party no.2 has also filed show cause dated 28.01.2010, wherein it has been stated that the F.I.R. which was lodged by one Julfikar Alli Khan of village Shankarpur of Bhadrak P.S., the police registered Madhupatna P.S. Case No. 131 of 2008. On investigation, it was found that the petitioner was loitering at Madhupatna Square and apprehended at Madhupatna Square and caught hold there and since the offences were cognizable, the petitioner was arrested at 9 PM and intimated through VHF message to IIC Chandrasekharpur P.S. 4. The petitioner has filed rejoinder affidavit disputing the averment made in the aforesaid show causes stating inter alia therein that no information has been received to the family members rather without following the guideline stipulated in the judgment rendered by the Hon'ble Supreme Court, the arrest has been made. 5. Opposite party no.1 has filed another affidavit in response to the rejoinder filed by the petitioner stating therein that in pursuance to the Fax message, one U.N. Singh, S.I. Police of Chandrasekharpur P.S. had gone to the residence of the petitioner to inform about the arrest which was recorded in the Station Diary Entry made at Chandrasekharpur P.S. on 26.07.2008 as would be evident from Annexure-A/1 annexed to the aforesaid affidavit, as such no guideline has been flouted. Likewise, the opposite party no.2 has also filed response to the rejoinder affidavit taking the same plea as has been taken by the opposite party no.1 in its affidavit filed by way of reply to the rejoinder. 6. In pursuance of the order passed by this Court, opposite party no.1 has again filed a show cause on 8.9.2011 stating therein that in pursuance to the Fax message, one U.N. Singh, SI of Police, Chandrasekharpur P.S. has gone to the residence of the petitioner but the family member of the petitioner has refused to sign on the arrest memo and thereafter this Court being not satisfied with the aforesaid submission of the opposite party no.1 has directed to conduct an enquiry. After going through the record, there seems to be some manipulation to the effect that part of statement made in the enquiry report "refused to accept" seems to be manipulated. This Court, after considering this aspect of the matter has directed the higher police officers to conduct an enquiry. In pursuance thereof, enquiry report has been submitted in which it has been found that manipulation has been made by writing in the station diary that the family members has refused to accept it which was ascertained by the Government Examiner on the questioned document that the aforesaid manipulation has been made by one ASI namely Rabinarayan Sahoo while working as Reader in Chandrasekharpur P.S. who has manipulated the sentence "His relatives denied to sign the arrest memo" in the original Station Diary Entry No. 857 dated 26.07.2008. 7. In the backdrop of this factual aspect, the submission has been advanced on behalf of the learned counsel for the petitioner that after the enquiry report submitted by the higher official of the police, now it is not in dispute that manipulation has been done in the S.D. Entry to the effect that "His relatives denied to sign the arrest memo", meaning thereby the guideline stipulated at paragraph-35 of the judgment rendered by the Hon'ble Supreme Court in the case of D.K. Basu has not been followed, hence it is a fit case, this Court may punish the opposite parties by initiating appropriate proceeding under the Contempt of Court's Act. 8. Learned counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Afzal and Others vrs. 8. Learned counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Afzal and Others vrs. State of Haryana and Others , (1996) 7 SCC 397 and Dhananjay Sharma vrs. State of Haryana and Others , (1995) 3 SCC 757 . 9. This Court, in order to ascertain as to whether any contempt has been committed or not; thinks it proper to go through the provisions of the Contempt of Court's Act, 1971. Contempt of Court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the Courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. Under the definition part i.e. the provision of Section 2 (a) "contempt of Court" means civil contempt or criminal contempt"; (b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. (c)"criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalize, or lowers or tends to lower the authority of, any Court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Section 11 confers power upon the High Court to try offences committed or offenders found outside jurisdiction, while under Section 12 provides punishment for contempt of Court. Section 14 provides the procedure where contempt is the face of the Hon'ble Supreme Court or a High Court. 10. Section 11 confers power upon the High Court to try offences committed or offenders found outside jurisdiction, while under Section 12 provides punishment for contempt of Court. Section 14 provides the procedure where contempt is the face of the Hon'ble Supreme Court or a High Court. 10. Since, the issue in the instant case is not coming under the fold of Section 2(c) which pertains to commission of "criminal contempt" rather the application has been filed for initiation of proceeding for "civil contempt" as has been defined under the provision of Section 2(b) which means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. Thus, the civil contempt will be initiated for willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. Willful means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. As per the discussion made by the Hon'ble Supreme Court in the case of M/s. Ashok Paper Kamgar Union and Others, vrs. Dharam Godha and Others , (2004) AIR SC 105 holding therein at Para-17, it has been held that in order to constitute contempt, the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. 11. The instant contempt application has been filed for noncompliance of the guideline formulated by the Hon'ble Supreme Court in the case of D.K. Basu , wherein at para-35, the following guideline as has been referred herein below:- "35. 11. The instant contempt application has been filed for noncompliance of the guideline formulated by the Hon'ble Supreme Court in the case of D.K. Basu , wherein at para-35, the following guideline as has been referred herein below:- "35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqua Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district; and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." Para-36 stipulates failure to comply with the requirement hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country having territorial jurisdiction over the matter. 12. 12. The contempt proceeding has been sought to be initiated for non-compliance of the conditions stipulated in D.K. Basu's case i.e. an entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is ? Further a person who has been arrested or detained and is being held in custody in a Police Station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. Guideline stipulated in Para-35(4) i.e. the time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 13. It is in the light of the legal position and the guideline as mentioned hereinabove, this Court is to examine as to whether any willful and deliberate non-compliance of the order passed by the Hon'ble Supreme Court in the case of D.K. Basu has been committed or not ? If the answer will be positive, certainly opposite parties will be liable to be punished but if the answer will be negative, opposite parties will not be liable to be proceeded for the contempt under the Contempt of Court's Act. 14. Factual aspect which is not in dispute in this case is that the petitioner claims to be an animal activist, who has made complaint against a Vehicle bearing registration No. OR-04-A-0597 which was carrying 65 cattle in one Truck on 19.07.2008 and the F.I.R. was lodged on 20.07.2008 registered as Madhupatna P.S. Case No. 128 of 2008 corresponding to G.R. Case No.866 of 2008. The driver of the said vehicle namely Julfukar Alli Khan who was the principal accused of Madhupatna P.S. Case No.128 of 2008 has also instituted criminal case being Madhupatna P.S. Case No.131 of 2008 corresponding to G.R. Case No. 878 of 2008, alleging therein that the present petitioner is extorting money from him and on such allegation, concerned police officer of Madhupatna P.S. has apprehended the petitioner on 26.07.2008 at 9 PM and taken him under police custody. Police team of Madhupatna P.S. which is falling under the jurisdiction of the district of Cuttack has given a wireless message to the concerned P.S. where the residence of the petitioner was situated, which comes under the jurisdiction of Chandrasekharpur P.S. in the district of Khurdha at Bhubaneswar. One U.N. Singh of Chandrasekharpur P.S. has been deputed to communicate regarding the arrest of the petitioner to his family members as per the Station Diary Entry made by him on 26.07.2008, where has stated that family members have been communicated regarding arrest of the petitioner at Madhupatna P.S. This Court, after taking note of the fact that communicating through VHF is not adequate, has passed order on 22.02.2011 enabling the State Counsel to file additional affidavit giving necessary details. In terms of the aforesaid order, again has passed an order on 23.08.2011 by issuing show cause upon the opposite party no.1 as to why the punishment as deemed appropriate under the Contempt of Court's Act shall not be imposed. In pursuance of the aforesaid order, show causes have been filed by the IIC, Chandrasekharpur P.S. enclosing therein Station Diary Entry No.857 dated 26.07.2008, wherein it was recorded that the arrest of the petitioner was communicated to his family members. However, this Court has directed to produce the original copy of the Station Diary Entry. 15. Opposite parties have produced the original copy of the Station Diary Entry dated 26.07.2008, wherein it was recorded "His relatives denied to sign the arrest memo". But on its comparison with its attested copy, it was found that the aforesaid stipulation regarding sign of the relative was not there and as such this Court while passing order on 2.11.2011 has again issued show cause as to why criminal proceeding shall not be initiated against them for filing of the forged documents and thereby misleading this Court. In terms thereof, show causes have been filed. In terms thereof, show causes have been filed. Finally on the direction of this Court, enquiry was conducted to ascertain as to who was the person responsible to make entry in the original Station Diary Entry wherein it was reflected that relatives of the petitioner has refused to accept it and on enquiry and on verification of the script of handwriting having been sent before the Government Examiner on questioned document, it has been ascertained that one Rabi Narayan Sahoo working as Reader holding the substantive post of ASI of Police, Chandrasekharpur P.S. has manipulated the sentence "His relatives denied to sign the arrest memo" in the original S.D. Entry dated 26.07.2008 and thereafter the authorities have decided to initiate departmental proceeding against the said ASI of Police, Rabi Narayan Sahoo, who has been held to be responsible of such manipulation in the S.D.E. dated 26.07.2008 of Chandrasekharpur P.S. 16. In the light of this factual aspect involved in this case, now it is to be seen as to whether the contempt has been committed by the opposite parties, if yes, by whom ? Whether it is by the arresting police officer or by another, so as to assess as to whether the guideline stipulated in the case of D.K. Basu at para-35 has been followed or violated by them ? 17. Admittedly, the arrest memo was prepared by the concerned Police Officer of Madhupatna P.S. on 26.07.2008 for an offence committed by the petitioner under Section 394 of I.P.C. (Annexure-1) to the writ petition, wherein at Column No.7, it has been stated that "name of witnesses preferably a family members of the arrestee or respectable reasons of the area with signature" which has been reflected handed his family members through VHF. It is evident from the Station Diary Entry as has been brought on record that one U.N. Singh has gone and informed about the arrest of the petitioner at Madhupatna P.S. However, subsequently it was found on comparison of the aforesaid station diary entry from its original, it has been inserted that the relatives of the petitioner refused to sign the arrest memo which has been found to be done by one Rabi Narayan Sahoo, at the time working as Reader in Chandrasekharpur P.S. Concerned Police Station to whom wireless message has been sent to communicate to the family members of the petitioner regarding his arrest, since the residence of the petitioner happens to be within the jurisdiction of Chandrasekharpur P.S. 18. It is evident from the guideline formulated by the Hon'ble Supreme Court in the case of D.K. Basu at para-35 which has been given by way of preventive measures that the police personnel carrying out the arrest and handling the interrogation of the arrestee should communicate it to the family members. If the arrestee belongs to the same Police Station where he has been arrested and if the arrestee belongs to other Police Station it was incumbent upon the concerned Police Station or the arresting team to communicate regarding the arrest to the concerned P.S. under which residence of the arrestee situates. 19. It is not in dispute that wireless message has been sent through VHF, since it has not been disputed in the rejoinder affidavit filed by the petitioner, as such part of the duty which is required to be done by the arresting police team has been performed by issuing VHF message to the concerned P.S., where the house of the petitioner was situated, since admittedly the petitioner was arrested in Madhupatna P.S. which is in the district of Cuttack, while his residence at that time was in Bhubaneswar coming under Chandrasekharpur P.S., hence in view of para-35(4) of the D.K. Basu , communication is to be given telegraphically within a period of 8 to 12 hours after the arrest. Here, in the instant case arrest was said to have been made at 9 PM, while the VHF message was sent at 11 PM on the same date which was done within two hours, as such according to considered view of this Court, arresting party has not flouted any such direction of the Hon'ble Supreme Court as stipulated in the case of D.K. Basu . It is here needs to refer that the Hon'ble Supreme Court has made out the aforesaid guideline in the facts and circumstances of the fact that the arrest may not subjected to third degree torture and by way of preventive measures. Simultaneously it is also to be realized that the Police is no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of thirddegree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. 20. The Hon'ble Supreme Court while dealing with such issue in the case of D.K. Basu has tried to make a balance by getting the fact into consideration that the interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By, torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid, no Society can permit it, as such to maintain balance the Hon'ble Supreme Court has observed that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and amongst others the increasing number of underworld and armed gangs and criminals. 21. It is in the above background, while issuing such guideline, the Hon'ble Supreme Court was very much conscious with respect to the fact regarding custodial death which perhaps is one of the worst crime in the civilian society governed by the rule of law but simultaneously it is also to be seen that rule of law must prevail otherwise there will be complete anarchy and on technicality there would not be any arrest which will led to chaotic situation in the society. 22. 22. Here in the present case, on the basis of the F.I.R. registered by Zulfukar Alli Khan, police apprehended the petitioner at 9 PM and taken in the police custody thereafter communicated the same through VHF to the concerned Police Station i.e. Chandrasekharpur P.S. and the efforts have been made by the concerned Police Officer to communicate regarding arrest of the petitioner. In view thereof, guideline as has been formulated by the Hon'ble Supreme Court has been followed by the concerned Police Station i.e. by Madhupatna P.S., hence according to my considered view, they are not liable to be proceeded under the Contempt of Court's Act, however since in the enquiry report as has been conducted by the higher police officer of the State Government that manipulation has been done by the Reader working at that time in the Chandrasekharpur P.S. to the effect that the family members have refused to accept it which has been found to be inserted subsequently, since in the attested copy, the same stipulation is not there, as is there in its original, but that does not mean that the VHF message regarding arrest of the petitioner was not communicated to the concerned Police Station. 23. The question as to whether the family members have refused to accept it or not, is not very much relevant since as per the guideline, efforts have been taken to communicate the message through VHF and the same has also been communicated but only because the concerned Reader has inserted that the family members are refused to accept it, no contempt proceeding will be initiated, keeping the fact into consideration that insertion of any official document by the staff or the officer will be said to be a misconduct by manipulating in the official document for which departmental proceeding is to be initiated and keeping the fact into consideration as has been pointed out by the opposite party-State and in the report that the departmental proceeding has been decided to be initiated against Shri Rabi Narayan Sahoo, Reader working at that time in the Chandrasekharpur P.S., hence police administration has already taken decision to initiate departmental proceeding. 24. 24. Further for one or other reason that show cause filed by the opposite party no.1, reference of the name of one friend has come at para-6 namely Jiban Das, the aforesaid statement has not been controverted, specifically while responding to it at para-6 of the rejoinder affidavit. As has been stated hereinabove, that the contempt proceeding is to be initiated with utmost care and all caution and also it is also settled that the contempt proceeding is in between the Court and the contemnor but after going through the factual aspect, the legal position and the judgment rendered by the Hon'ble Supreme Court, according to considered view of this Court, it is not the case in such nature that the contempt proceeding be initiated holding it a case of civil disobedience which has been defined by the Hon'ble Supreme Court in the case of Ashok Paper Kamgar Union and Others vrs. Dharam Godha and Others , (2004) AIR SC 105, an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, it will be treated to be a deliberate action, as such will come under the fold of definition of Section 2(b) of the Contempt of Court's Act. 25. But according to considered view of this Court on the basis of facts that VHF message was sent by the arresting police team to the concerned Police Station for communicating it to the family members of the petitioner, it cannot be said to be willful and deliberate disobedience. One question may arise that inserting the word in the original station diary to the effect that the "family members refused to accept it" which will be said to be willful and with ulterior motive as has already been stated herein above reasons and at the risk of repetition, the same is reiterated that for that omission and commission, the authorities have taken decision to initiate departmental proceeding against Rabi Narayan Sahoo holding the substantive post of ASI. 26. In view thereof, no contempt is said to be made out against the opposite parties herein, hence this Court is not inclined to proceed further. 26. In view thereof, no contempt is said to be made out against the opposite parties herein, hence this Court is not inclined to proceed further. However, it is expected that the competent authority and the police administration will conclude departmental proceeding against Rabi Narayan Sahoo, the Reader holding the substantive post of ASI of Police during the relevant time. Accordingly, the contempt petition is disposed.