NEUTRAL CITATION
R/SCR.A/12412/2023 ORDER DATED: 05/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12412 of 2023
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LUVKUMAR MORARJIRAO PAGAR
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR KM ANTANI, Addl. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/10/2023
ORAL ORDER
1. Learned advocate Mr. PP Majmudar for the petitioner, after arguing to some extent, had sought permission to withdraw this petition with a liberty to file appropriate proceedings before appropriate Court. Permission was granted and according, the petition was disposed of as withdrawn with above liberty. Thereafter, learned advocate Mr. Majmudar comes to the Court and submits that the petitioner is seeking for the reasoned order in this petition. In view of this aspect, following reasoned order is passed.
2. By way of this petition under Articles 226 and 227 of the Constitution of India r/w section 482 of the Code of Criminal Procedure, 1973, the petitioner seeks following relief:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any Page 1 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023 NEUTRAL CITATION R/SCR.A/12412/2023 ORDER DATED: 05/10/2023 undefined other appropriate writ, order or directions quashing and setting aside the order dated 27.02.2023 passed by the learned Additional Sessions Judge, District & Sessions Court, Vadodara (At ANNEXURE-A hereto), in so far as by virtue of the same enquiry is ordered under section 202 of the Code of Criminal Procedure and further be pleased to give directions directing the respondent authorities to grant/sanction compensation of Rs. 2 crores, for the loss of reputation and illegal handcuffing of the petitioner, even prior to the petitioner being proved guilty and further be pleased to direct that appropriate action may be taken as per the complaint and Affidavit of Petitioner's wife dated 31.01.2023 (At Annexure-G) as well as application of petitioner dated 27.01.2023 (At Annexure A) against the erring police officers and private respondents herein; (B) YOUR LORDSHIPS may be pleased to issue a writ in the nature of mandamus or any other writ or directions directing the respondent authorities to follow the directions contained in the Judgment of the Hon'ble Supreme Court in the case of D.K Basu Vs. State of West Bengal, reported in 1996 Law Suit (SC) 2127 as well as guidelines contained in the Judgment of the Hon'ble Supreme Court in the case of Citizens for Democracy v/s. State of Assam reported in (1995) 3 SCC 743, and further be pleased to direct that action may be taken against erring officers for violating fundamental and human rights of the petitioner contrary to the directions issued by Hon'ble Supreme Court in aforesaid judgment;
(C) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to direct that action may be taken as per the Affidavit of petitioner's 31.01.2023 (At Annexure-G) wife dated as well as application of petitioner dated 27.01.2023 (At Annexure-A) against the erring police officers and private respondents herein;"
3. The factual background as picked up from the petition are that an FIR being C.R. No.11196030230042 of 2023 registered with Sayajiganj Police Station, Vadodara for the offences Page 2 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023 NEUTRAL CITATION R/SCR.A/12412/2023 ORDER DATED: 05/10/2023 undefined punishable u/s 504, 506(1) and 114 of the IPC and u/s 3, 4(3) and 5(c) of the Gujarat Land Grabbing Act against the petitioner as well as his mother. In the petition, it is alleged that on 26.1.2023, the petitioner was illegally arrested from the parking area of his residence i.e. Shilalekh Apartment, Nirman Society, Vadodara by the respondent Nos.2 and 3. It is further alleged that arrest was effected by illegally handcuffing the petitioner and confined, abused and humiliated the petitioner by the respondent Nos.2 and 3.
4. The petitioner was produced before the concerned District and Sessions Judge, Vadodara on 27.2.2023. In the trial proceedings, the petitioner has made a grievance that he has been illegally handcuffed and inhuman treatment has been given to him by the respondent No.2 & 3 as well as threat to put under the fetters inside and outside police custody while he was arrested. This grievance has been forwarded to the Human Right Court at Vadodara, who in turn, vide order dated 27.2.2023, has initiated inquiry u/s 202 of the Code of Criminal Procedure, 1973 for the alleged incident.
5. The petitioner, being aggrieved by the action on the part of the Human Right Court as well as inhuman treatment given by the respondent No.2, has preferred this petition claiming above stated relief.
6. Learned advocate Mr. Majmudar, referring to the judgment of the Hon'ble Apex Court in case of D.K. Basu Vs. State of West Bengal reported in 1996 Law Suit (SC) 2127 as well as in case of Citizens for Democracy through its President Vs. State of Assam Page 3 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023 NEUTRAL CITATION R/SCR.A/12412/2023 ORDER DATED: 05/10/2023 undefined and others reported in (1995) 3 SCC 743, would submit that handcuffing of undertrials and convicts and putting them under fetters are not permissible. They are violative of Articles 14, 19 and 21 of the Constitution of India. It is further submitted that in view of judgment of Prem Shankar Shukla Vs. Delhi Admn reported in (1980) 3 SCC 526 and Sunil Batra Vs. Delhi Admn reported in (1978) 4 SCC 494 referred to in case of Citizens for Democracy (supra), act of the respondent Nos.2 and 3 attracts the provisions of the Contempt of Courts Act apart from other penal consequences. He would further submit that if the police officer, who arrested a person without warrant, is satisfied on the basis of the guidelines given by the Hon'ble Apex Court that it is necessary to handcuff such person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate, provided that such person is trying to escape or putting any threat upon the arresting officer.
7. Learned advocate Mr. Majmudar, referring to the photographs attached with this petition and some letters said to have been written by the petitioner while he was in custody, would submit that clear-cut evidence on record indicates that the petitioner was arrested from the parking area, he was handcuffed by the respondent Nos.2 and 3 and was taken to the custody in inhuman manner and that violates very guidelines given in Prem Shankar Shukla (supra) as well as Sunil Batra (supra), which is recognized in case of Citizens for Democracy (supra). He would further submit that even during the police custody, the police officers have not observed the guidelines given in case of Citizens for Democracy (supra). In nutshell, it is submitted that the petitioner has been treated with inhuman Page 4 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023 NEUTRAL CITATION R/SCR.A/12412/2023 ORDER DATED: 05/10/2023 undefined approach and thus, there is utter violation of the human right guaranteed under the law and in view of that fact, the petitioner is entitled for the relief claimed herein above including the amount of compensation.
8. The above submissions are canvassed in background of the fact that some civil proceeding is initiated against Mr. Kiritkumar Shantilal Shah by the mother of the petitioner to seek protection against eviction from the rented premises in Vadodara, whereupon, according to submission of learned advocate Mr. Majmudar, the concerned Court has passed interim order in favour of the mother of the petitioner, which has prompted Mr. Kiritkumar Shantilal Shah to file false and frivolous FIR stated herein above.
9. The above submission is canvassed to issue notice in this petition.
10. What appears from the record that the grievance of the complainant raised by the present petitioner has been taken care of by the Human Right Court at Vadodara. The initial inquiry u/ s 202 of the Code of Criminal Procedure, 1973 has been initiated for ascertaining the veracity of the allegations levelled by the petitioner. Thus, the contention and apprehension raised by the petitioner herein is premature. The petitioner has based the entire case upon certain photographs produced at page Nos.56 to 58 of the compilation to allege that the petitioner was handcuffed while he was arrested from the parking area. The allegation levelled by the petitioner can be verified and tested including the evidence produced by him during the inquiry Page 5 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023 NEUTRAL CITATION R/SCR.A/12412/2023 ORDER DATED: 05/10/2023 undefined initiated u/s 202 of the Code of Criminal Procedure, 1973, which is seized with the Human Right Court at Vadodara.
11. Section 41 of the Code of Criminal Procedure, 1973 provides the provision that when police may arrest without warrant, section 41B of the Code of Criminal Procedure, 1973 lays down the procedure of arrest and duties of officer making arrest. Section 46 of the Code of Criminal Procedure, 1973 indicates the procedure how arrest is to be made. Section 49 of the Code of Criminal Procedure, 1973 says that no unnecessary restraints shall be made other than necessary to prevent the accused from being escaped. Whether all these procedures are properly followed or not by the arresting officer can be examined by the Human Right Court while conducting inquiry u/s 202 of the Code of Criminal Procedure, 1973.
12. In view of above aspect that when the entire issue is seized with the Human Right Court, Vadodara, who is going to examine the issue u/s 202 of the Code of Criminal Procedure, 1973, present petition is devoid of any merit and hence, it is dismissed.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Fri Oct 06 20:43:26 IST 2023