Gujarat High Court
Jahirmiya Rehamumiya Malek vs State Of Gujarat on 19 October, 2023
Bench: A.S. Supehia
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C/MCA/1067/2022 JUDGMENT DATED: 19/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO.1067 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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JAHIRMIYA REHAMUMIYA MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR I H SYED, SENIOR ADVOCATE WITH MR PRITHU PARIMAL WITH MR
VISHRUT BHANDARI WITH MR GULREJ SAIYED WITH MR ANIQ KADRI
WITH MR SHAAN MUNSHAW WITH SHREYA OJHA WITH MR ASFAK G.
MALEK for the Applicant(s) No. 1,2,3,4,5
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MS VRUNDA SHAH,
APP for the Opponent(s) No. 1,15,16
MR JAL UNWALA, SENIOR ADVOCATE WITH MS TEJAL A VASHI(2704)
for the Opponent(s) No. 10,14,4,7,8
MR PRAKASH JANI, SENIOR ADVOCATE WITH MR SHIVANG P JANI for
the Opponent(s) No. 11,12,13,2,3,5,6,9
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/10/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
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"Human rights are not a privilege conferred by
government. They are every human being's
entitlement by virtue of his humanity. The
right to life does not depend, and must not be
contingent, on the pleasure of anyone else,
not even a parent or sovereign" : Mother
Teresa.
(1) In the instant case, the respondents, who are
the responsible police officers, have defiled
the human rights and dignity of the
complainants as if they were conferred the
privilege to do so.
(2) The present contempt application emanates from
an incident, which has taken place on
03.10.2022 at Village Undhela, Taluka Matar,
District Kheda during the Garba festival. It
is alleged by the complainants that the
respondent nos.2 to 14 had illegally detained
them and assaulted in the night of 03.10.2022
and thereafter, an F.I.R. was registered on
04.10.2022 against them for the offence
punishable under Sections 34, 143, 147, 148,
149, 295A, 307, 323, 332, 337, 427, 504 and
506(2) of the Indian Penal Code, 1860 (IPC),
wherein the complainants along with others
were also arraigned as accused. It is further
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alleged that on 04.10.2022 at around 2:00
p.m., they were brought back to Undhela
Village Masjid Chawk and were tide to a pole
in the middle of the Chawk and brutally beaten
up by the respondent nos.2 to 14 using sticks
in front of the crowd. It is further alleged
that videos of such beating up were recorded
and circulated in the public and had also been
reported in the press and they were beaten at
the instance of the Member of Legislative
Assembly (MLA) of the Mater Constituency
namely, Shri Kesharsinh Solanki.
(3) It is the case of the complainants that their
arrest and subsequent act of the respondent
nos.2 to 14 of tying them to the pole on the
next date i.e. on 04.10.2022 and thereby,
flogging them in public view and also
instructing the public to record the video
would amount to flagrant violation of the law
enunciated by the Apex Court in the case of
D.K.Basu vs. State of West Bengal, 1997(1)
S.C.C. 416 and will amount to contempt of
Court under section 2(b) read with section 12
of the Contempt of Courts Act, 1971 (for short
"the Act").
It is contended by the respondent nos.2 to 14
that since the application does not contain
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under Article 215 of the Constitution of
India, the same may not be entertained. As per
Article 215 of the Constitution of India, the
High Court is a Court of record and powers of
a Court include the power to punish for
contempt and jurisdiction of High Court under
Article 215 of the Constitution of India is
inherent to enable it to uphold the majesty of
the Institution as well as for
preventing interference in administration
of justice.
The Apex Court in the case of Sahdeo @
Sahdeo vs. State of Uttar Pradesh, 2010 (3)
S.C.C. 705, while examining the contempt
proceedings emanating from the violation of
guidelines in the case of D.K.Basu (supra) has
held that the High Court has a power to
initiate the contempt proceedings suo motu for
ensuring the compliance of the orders passed
by the Court. However, it is clarified that
such powers can be invoked as vested in the
High Court under Article 215 of the
Constitution of India in accordance with the
procedure prescribed by the law. The Apex
Court in the case of Priya Gupta vs.
Additional Secretary, Ministry of Health and
Family Welfare, (2013) 11 S.C.C. 404 has held
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that "the orders passed by this Court are the
law of the land in terms of Article 141 of the
Constitution of India. No Court or Tribunal
and for that matter any other authority can
ignore the law stated by this Court. Such
obedience would also be conducive to their
smooth working, otherwise there would be
confusion in the administration of law and
the respect for law would irretrievably
suffer. There can be no hesitation in holding
that the law declared by the higher court in
the State is binding on authorities and
tribunals under its superintendence and they
cannot ignore it."
(4) We have heard the learned Senior Advocates
appearing for the respective parties on
numerous occasions. Learned Senior Advocate
Mr.Jani, while placing reliance on the
judgemnt of the Apex Court in the case of
Sahdeo @ Sahdeo (supra), has contended that in
a case, the order passed by the Court is not
complied with by mistake, in inadvertence or
by misunderstanding of the meaning an purport
of the order, unless it is intentional no
charge of contempt can be brought home. In
this regard he has also placed reliance on the
judgements in cases of Dr.U.N.Bora, Ex.Chief
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Executive Officer Vs. Assam Roller Flour Mills
Association, 2022 (1) S.C.C. 101 and Ashok
Paper Mills Kamgar Union Vs. Dharam Godha,
2003 (11) S.C.C. 1. He has also placed
reliance on decision in case of Three Cheers
Entertainment (P) Ltd. Vs. C.E.S.C Ltd, 2008
(16) S.C.C. 592, and has contended that for
enforcing the order passed by the Court, a
roving inquiry is impressible, and the Court
has to permit the cross-examination of
witnesses to enable the Court to reach a
particular finding. With regard to the
imposition of sentence in contempt proceedings
reliance is placed by the learned Senior
Advocate Mr.Jani on the decisions of the Apex
Court in the cases of Supreme Court Bar
Association vs. Union of India, 1998 (4)
S.C.C. 409, Mrityunjoy Das vs. Sayed Hasibur
Rahman, 2001 (3) S.C.C. 739 and Pushpaben vs.
Narandas V Badiani, 1979 (2) S.C.C. 394.
(5) Learned Senior Advocate Mr.Jani has also
tendered the written submissions. It is
noticed by us that by enlarge the contentions
raised in the written submissions pertain to
non-maintainability of the present application
under the Act. While dealing with the issue of
maintainability of the present application
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filed under section 12 of the Act, seeking
initiation and punishment of respondent nos.2
to 14 for violation of the guidelines of the
Supreme Court in the case of D.K.Basu (supra),
this Court, vide a comprehensive order dated
12.07.2023 has held that the same as
maintainable, and further directions were
issued to the learned Chief Judicial
Magistrate, Kheda at Nadiad to prepare a
report recording the role of each of the
respondents upon verifying the contents of the
videos and images placed on record. Hence, we
are not inclined to again deal with the issues
raised in the written submissions in this
regard.
(6) The learned Magistrate sent a report dated
31.07.2023. By an order dated 11.08.2023, the
same was taken on record and copies were also
supplied to the respective respondents, and
further opportunity was granted to them to
respond to the same.
(7) In the report dated 26.09.2023, filed by the
learned Magistrate, following observations are
recorded.
"(V) Conclusion:
1) The respondent No.02-Mr.A.V.Parmar is
identified as person in white shirt and blue
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jeans in the videos, who is seen giving 03-06
stick blows on buttock of applicant no 03-05
(out of which three applicants identified
themselves and him in the videos).
2) The respondent No.03-Mr.D.B.Kumavat is
identified as man in lightblue shirt and black
pants, who is seen in the videos sitting in the
chair and in some screenshots standing in the
background. Not seen with stick or beating any
applicants.
3) The respondent No.05-Mr.Kanaksingh Laxman
Singh is identified as man in orange white
checks and dark blue jeans in the videos. His
presence is seen in videos of applicant No.03
and 04 holding white pipe and pushing
applicants towards Van. Not seen beating the
applicants in the videos but can be seen
pushing them towards Van. He is seen raising
pipe on applicant No.03 in one screenshot
photograph.
4) The respondent No.13-Mr Raju Rameshbhai
Dabhi (identified by the applicant number 03-
05). He can be seen holding hands of the
applicants no 03-05 to the pole while
respondent No.02 giving blows of the stick on
their buttock.
5) No role can be identified by this court,
also not identified by the applicants in the
and 14 for beating them in any of the videos in
the pendrive and photographs as to alleged
incident produced by them."
(8) In light of the report of the learned
Magistrate, this Court, after hearing the
learned Senior Counsel at length vide order
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dated 04.10.2023 framed charge against the
respondent no.2-Mr.A.V.Parmar, the respondent
no.3-Mr.D.B.Kumavar, respondent no.5-
Mr.Kanaksingh Laxman Singh, the respondent
no.13-Mr.Raju Rameshbhai Dabhi, who are
identified and their presence is shown at the
time of incident. The role of each of the
accused was examined, including the respondent
no.3, who had contended to drop the
proceedings since he is not seen assaulting
anyone, but was sitting on a chair when the
complainants were being assaulted. The other
respondents were ordered to be deleted from
the array of parties and the contempt
proceedings were closed against them.
(9) After the charge was framed, further
opportunity was extended to the respondents to
respond to the charges and the matter was
ordered to be listed on 11.10.2023. The
respondents have thereafter, also filed
additional affidavits. On 11.10.2023, the
respondents requested for awarding
compensation, and the matter was adjourned on
16.10.2023. Since the complainants have
refused to settle the matter, it was further
listed today for dictation of judgment.
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::ESTABLISHED FACTS::
(a) On 03.10.2022 around 11:00 p.m., an
altercation broke out at Village Undhela,
Taluka Matar, Dist.Kheda arising out of
Garba Festivities. It is stated that the
Garba festivities took place at this venue
for the first time, even though there is
an existing venue in the village for Garba
to take place.
(b) On 03.10.2022 around 11:30 - 12:30 in the
night hours, the police personnel from the
Local Crime Branch (LCB), including the
present respondents arrived at the scene
and detained the present complainants.
(c) After being detained, the complainants
were taken to the Special Operations Group
(SOG) Police Station, Kheda and were kept
in detention overnight.
(d) On 04.10.2022 at 4:30 a.m., an FIR bearing
No.11204040220241 of 2022 was lodged with
Matar Police Station for offences
punishable under Sections 34, 143, 147,
148, 149, 295A, 307, 323, 332, 337, 427,
504 and 506(2) of the IPC, wherein the
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complainants and others were arraigned as
accused.
(e) On 04.10.2022 around 12:00 p.m., the
complainants were brought back, while in
police custody in a police van at Undhela
village, Masjid Chawk and were tied to the
police in the middle of the Chawk and
brutally beaten up by using lathis in
front of the crowd. The videos of such
beating up were recorded and circulated in
the public and has also been reported in
the press.
(f) On 04.10.2022 at 9:15 p.m., the
complainants were taken for Matar Police
Station, District Kheda where they were
arrested in connection with the FIR
bearing No.11204040220241 of 2022. In
fact, the complainants were shown to have
been arrested only on 04.10.2022 at 9:15
p.m.
(g) On 04.10.2022, the petitioners preferred a
representation before the Inspector
General (I.G.) (Ahmedabad Range)
requesting that necessary steps, in the
form of a departmental inquiry, be taken
against the erring policemen.
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(h) On 05.10.2022, around 2:00 p.m., the
petitioners were produced before the
concerned Magistrate, after their arrest
in connection with the aforesaid F.I.R.
Upon production, some of the complainants
preferred a complaint of police atrocities
before the Magistrate and the Magistrate
directed the medical examination.
(i) On 05.10.2022, the medical certificates
clearly show the history as "assault by
police with injuries" on the victims.
(j) On 10.10.2022, a private complaint under
section 190 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) being Criminal
Inquiry No.26 of 2022 was filed before the
Magistrate arising out of the same
incident. On the same day, the Magistrate
ordered an investigation under Section 202
of the Cr.P.C. by the I.G. (Ahmedabad
Range) pursuant to the aforesaid
complaint.
(k) On 13.10.2022, the Magistrate passed an
order holding that since an investigation
under section 202 of the Cr.P.C. is
underway by the I.G. (Ahmedabad Range),
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the application under Section 91 of the
Cr.P.C. stands rejected.
(l) On 24.10.2022, the complainants preferred
an application before the I.G. (Ahmedabad
Range) for seizure of the CCTV footage and
DVR so that it may not be destroyed or
manipulated, since an investigation under
Section 202 of the Cr.P.C. was already
underway.
(m) On 06.12.2022, the I.G. (Ahmedabad Range)
issued a charge memo to the erring
policemen.
(n) On 29.01.2023, the Superintendent of
Police, Nadiad has filed an affidavit
before this Court, which confirms the
allegations levelled by the complainants
in the present application.
(o) On 07.02.2023, the report under section
202 of the Cr.P.C. of the I.G. (Ahmedabad
Range) to the Magistrate, wherein it is
concluded that the victims were beaten by
six policemen viz. (1) Police Inspector,
A.V. Parmar; (2) Armed Head Constable,
Kanaksinh Laxmansinh; (3) Armed Police
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Constable, Arjunsinh Fatehsinh; (4) Armed
Police Rajendrasinh Rameshbhai; (5)
Unarmed Head Constable Maheshbhai
Vashrambhai; (6) Unarmed Head Constable
Vishnubhai Harjibhai and are seen beating
the victims in the video, which got viral.
Hence, the I.G. has concluded that the
offences under Sections 323 and 166 of the
IPC are made out.
VIOLATION OF GUIDELINES:
(10) After the charge was framed, further
opportunity was extended to the respondents to
respond to the charges and matter was ordered
to be listed on 11.10.2023. The respondents
have thereafter, also filed additional
affidavits. On 11.10.2023, the respondents
requested for awarding compensation, and the
matter was adjourned on 16.10.2023. Since the
complainants have refused to settle the
matter, it was further listed today for
dictation of judgment.
(11) The arrest of the complainants has the
following infirmities in contravention of the
judgment of the Apex Court in the case of
D.K.Basu (supra):
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(i) The complainants were detained on 03.10.2022
between 11:30 to 12:30 in the night hours from
Undhela village, Tal.Matar, Dist. Kheda. The
complainants were taken to the SOG Police
Station at Kheda and were detained in the
night hours. The F.I.R is registered at 04:30
a.m. on 04.10.2022 at Matar Police station.
The arrest memos specify that the time of
arrest was 11:15 p.m. on 04.10.2022. Thus,
though the complainants were detained at the
SOG Police Station at Kheda during the night
hours of 03.10.2022, the F.I.R is registered
at the Matar Police Station, Kheda in the
morning hours at 04:30 a.m. of 04.10.2022 and
their time of arrest is shown as 9:15 p.m. on
04.10.2022 for the reasons best known to the
respondents. It is also shocking and
surprising to note that, during the period of
registration of the F.I.R at 04:10 a.m., and
their arrest at 09.:15 p.m. on 04.10.2022, the
complainants are brought at Village Chawk,
tied to the pole and brutally beaten. Thus,
after they are mercilessly assaulted, they are
arrested. Thus, it appears that in order to
come within the limit of 24 hours prescribed
for production before the Magistrate, the
arrest appears to have been shown at 9:15 p.m.
on 04.10.2022, though they were already
detained and beaten in full public view.
Thereafter, on 05.10.2022 around 2:00 p.m.,
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the petitioners were produced before the
concerned Magistrate.
(ii) No signatures of the relatives were taken on
the arrest memo.
LEGAL PRECEDENTS:
(12) We shall now endeavour to consider the legal
precedents set by the Apex Court on the issue
raised in the present application.
(13) In the case of Sunita Devi vs. state of Bihar,
2005 (1) S.C.C. 608, the Apex Court has
noticed the defination of custody as under:
"6. In Black's Law Dictionary by Henry Campbell Black,
MA (6th Edn.), the expression "custody" has been
explained in the following manner:
"The term is very elastic and may mean actual
imprisonment or physical detention.... Within
statute requiring that petitioner be 'in custody'
to be entitled to federal habeas corpus relief
does not necessarily mean actual physical
detention in jail or prison but rather is
synonymous with restraint of liberty. ...
Accordingly, persons on probation or parole or
released on bail or on own recognizance have been
held to be 'in custody' for purposes of habeas
corpus proceedings."
(14) In the case of Priya Gupta (supra), the Apex
Court has observed as under:
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"9 The government departments are no exception to the
consequences of wilful disobedience of the orders of the
Court. Violation of the orders of the Court would be its
disobedience and would invite action in accordance with
law. The orders passed by this Court are the law of the
land in terms of Article 141 of the Constitution of India.
No Court or Tribunal and for that matter any other
authority can ignore the law stated by this Court. Such
obedience would also be conducive to their smooth working,
otherwise there would be confusion in the administration
of law and the respect for law would irretrievably suffer.
There can be no hesitation in holding that the law
declared by the higher court in the State is binding on
authorities and tribunals under its superintendence and
they cannot ignore it. This Court also expressed the view
that it had become necessary to reiterate that disrespect
to the constitutional ethos and breach of discipline have
a grave impact on the credibility of judicial institution
and encourages chance litigation. It must be remembered
that predictability and certainty are important hallmarks
of judicial jurisprudence developed in this country, as
discipline is sine qua non for effective and efficient
functioning of the judicial system. If the Courts command
others to act in accordance with the provisions of the
Constitution and to abide by the rule of law, it is not
possible to countenance violation of the constitutional
principle by those who are required to lay down the law.
[Ref. East India Commercial Companies Ltd. V/s. Collector
of Customs [AIR 1962 SC 1893] and Official Liquidator V/s.
Dayanand & Ors [(2008) 10 SCC 1].
10 These very principles have to be strictly adhered to by
the executive and instrumentalities of the State. It is
expected that none of these institutions should fall out
of line with the requirements of the standard of
discipline in order to maintain the dignity of institution
and ensure proper administration of justice."
(15) In the case of Dr.Mehmood Nayyar Azam vs.
State of Chhattisgarh, 2012 (8) S.C.C. 1, the
Apex Court, while examining the case of
custodial harassment at the hands of the
police, has held thus:
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"22 After referring to the case of Joginder Kumar (supra),
A.S. Anand, J. (as his Lordship then was), dealing with the
various facets of Article 21, stated that any form of
torture or cruel, inhuman or degrading treatment would fall
within the ambit of Article 21 of the Constitution, whether
it occurs during investigation, interrogation or otherwise.
If the functionaries of the Government become law-breakers,
it is bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to become
law unto himself thereby leading to anarchy. No civilized
nation can permit that to happen, for a citizen does not
shed off his fundamental right to life, the moment a
policeman arrests him. The right to life of a citizen
cannot put in abeyance on his arrest. The precious right
guaranteed by Article 21 of the Constitution of India
cannot be denied to convicts, undertrials, detenus and
other prisoners in custody, except according to the
procedure established by law by placing such reasonable
restrictions as are permitted by law.
23 At this juncture, it becomes absolutely necessary to
appreciate what is meant by the term "harassment". In P.
Ramanatha Aiyar's Law Lexicon, Second Edition, the term
"harass" has been defined, thus: -
"Harass. "injure" and "injury" are words having numerous
and comprehensive popular meanings, as well as having a
legal import. A line may be drawn between these words and
the word "harass" excluding the latter from being
comprehended within the word "injure" or "injury". The
synonyms of "harass" are: To weary, tire, perplex, distress
tease, vex, molest, trouble, disturb. They all have
relation to mental annoyance, and a troubling of the
spirit."
The term "harassment" in its connotative expanse includes
torment and vexation. The term "torture" also engulfs the
concept of torment. The word "torture" in its denotative
concept includes mental and psychological harassment. The
accused in custody can be put under tremendous
psychological pressure by cruel, inhuman and degrading
treatment.
24 At this juncture, we may refer with profit to a two-
Judge Bench decision in Sunil Gupta and others V/s. State
of Madhya Pradesh and others. The said case pertained to
handcuffing where the accused while in judicial custody
were being escorted to court from jail and bound in
fetters. In that context, the Court stated that the escort
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party should record reasons for doing so in writing and
intimate the court so that the court, considering the
circumstances may either approve or disapprove the action
of the escort party and issue necessary directions. The
Court further observed that when the petitioners who had
staged 'Dharna' for public cause and voluntarily submitted
themselves for arrest and who had no tendency to escape,
had been subjected to humiliation by being handcuffed, such
act of the escort party is against all norms of decency and
is in utter violation of the principle underlying Article
21 of the Constitution of India. The said act was condemned
by this Court to be arbitrary and unreasonably humiliating
towards the citizens of this country with the obvious
motive of pleasing 'someone'.
25 In Bhim Singh, MLA V/s. State of J & K, this Court
expressed the view that the police officers should have
greatest regard for personal liberty of citizens as they
are the custodians of law and order and, hence, they should
not flout the law by stooping to bizarre acts of
lawlessness. It was observed that custodians of law and
order should not become depredators of civil liberties, for
their duty is to protect and not to abduct.
26 It needs no special emphasis to state that when an
accused is in custody, his Fundamental Rights are not
abrogated in toto. His dignity cannot be allowed to be
comatosed. The right to life is enshrined in Article 21 of
the Constitution and a fortiorari, it includes the right to
live with human dignity and all that goes along with it. It
has been so stated in Francis Coralie Mullin V/s.
Administrator, Union Territory of Delhi and others, and
D.K. Basu (supra).
27 In Kharak Singh V/s. State of U. P., this court approved
the observations of Field, J. in Munn V/s. Illinois:-
"By the term "life" as here [Article 21] used something
more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and
faculties by which life is enjoyed."
28 It is apposite to note that inhuman treatment has many a
facet. It fundamentally can cover such acts which have been
inflicted with an intention to cause physical suffering or
severe mental pain. It would also include a treatment that
is inflicted that causes humiliation and compels a person
to act against his will or conscience.
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29 In Arvinder Singh Bagga V/s. State of U.P. and others,
it has been opined that torture is not merely physical but
may even consist of mental and psychological torture
calculated to create fright to submit to the demands of the
police.
30 At this stage, it is seemly to refer to the decisions of
some of the authorities relating to a man's reputation
which forms a facet of right to life as engrafted under
Article 21 of the Constitution.
31 In Smt. Kiran Bedi V/s. Committee of Inquiry and
another, this Court reproduced an observation from the
decision in D. F. Marion V/s. Davis:-
"The right to enjoyment of a private reputation, unassailed
by malicious slander is of ancient origin, and is necessary
to human society. A good reputation is an element of
personal security, and is protected by the Constitution
equally with the right to the enjoyment of life, liberty
and property."
32 In Board of Trustees of the Port of Bombay V/s.
Dilipkumar Raghavendranath Nadkarni and others, it has been
ruled that right to reputation is a facet of right to life
of a citizen under Article 21 of the Constitution.
33 In Smt. Selvi and others V/s. State of Karnataka, while
dealing with the involuntary administration of certain
scientific techniques, namely, narcoanalysis, polygraph
examination and the Brain Electrical Activation Profile
test for the purpose of improving investigation efforts in
criminal cases, a three-Judge Bench opined that the
compulsory administration of the impugned techniques
constitute 'cruel, inhuman or degrading treatment' in the
context of Article 21. Thereafter, the Bench adverted to
what is the popular perception of torture and proceeded to
state as follows: -
"The popular perceptions of terms such as 'torture' and
'cruel, inhuman or degrading treatment' are associated
with gory images of blood-letting and broken bones.
However, we must recognize that a forcible intrusion
into a person's mental processes is also an affront to
human dignity and liberty, often with grave and long-
lasting consequences. [A similar conclusion has been
made in the following paper: Marcy Strauss, 'Criminal
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Defence in the Age of Terrorism - Torture', 48 New York
Law School Law Review 201-274 (2003/2004)]."
After so stating, the Bench in its conclusion recorded as
follows: -
"We have also elaborated how the compulsory
administration of any of these techniques is an
unjustified intrusion into the mental privacy of an
individual. It would also amount to 'cruel, inhuman or
degrading treatment' with regard to the language of
evolving international human rights norms."
34 Recently in Vishwanath S/o Sitaram Agrawal V/s. Sau.
Sarla Vishwanath Agrawal, although in a different context,
while dealing with the aspect of reputation, this Court has
observed as follows: -
"........reputation which is not only the salt of life,
but also the purest treasure and the most precious
perfume of life. It is extremely delicate and a
cherished value this side of the grave. It is a revenue
generator for the present as well as for the
posterity."
35 We have referred to these paragraphs to understand how
with the efflux of time, the concept of mental torture has
been understood throughout the world, regard being had to
the essential conception of human dignity.
36 From the aforesaid discussion, there is no shadow of
doubt that any treatment meted to an accused while he is in
custody which causes humiliation and mental trauma corrodes
the concept of human dignity. The majesty of law protects
the dignity of a citizen in a society governed by law. It
cannot be forgotten that the Welfare State is governed by
rule of law which has paramountcy. It has been said by
Edward Biggon "the laws of a nation form the most
instructive portion of its history." The Constitution as
the organic law of the land has unfolded itself in manifold
manner like a living organism in the various decisions of
the court about the rights of a person under Article 21 of
the Constitution of India. When citizenry rights are
sometimes dashed against and pushed back by the members of
City Halls, there has to be a rebound and when the rebound
takes place, Article 21 of the Constitution springs up to
action as a protector. That is why, an investigator to a
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crime is required to possess the qualities of patience and
perseverance as has been stated in Nandini Sathpaty V/s. P.
L. Dani.
37 In Delhi Judicial Services Association V/s. State of
Gujarat, while dealing with the role of police, this Court
condemned the excessive use of force by the police and
observed as follows:-
"The main objectives of police is to apprehend offenders,
to investigate crimes and to prosecute them before the
courts and also to prevent commission of crime and above
all to ensure law and order to protect citizens' life and
property. The law enjoins the police to be scrupulously
fair to the offender and the Magistracy is to ensure fair
investigation and fair trial to an offender. The purpose
and object of Magistracy and police are complementary to
each other. It is unfortunate that these objectives have
remained unfulfilled even after 40 years of our
Constitution. Aberrations of police officers and police
excesses in dealing with the law and order situation have
been subject of adverse comments from this Court as well as
from other courts but it has failed to have any corrective
effect on it. The police has power to arrest a person even
without obtaining a warrant of arrest from a court. The
amplitude of this power casts an obligation on the police
and it must bear in mind, as held by this Court that if a
person is arrested for a crime, his constitutional and
fundamental rights must not be violated."
38 It is imperative to state that it is the sacrosanct duty
of the police authorities to remember that a citizen while
in custody is not denuded of his fundamental right under
Article 21 of the Constitution. The restrictions imposed
have the sanction of law by which his enjoyment of
fundamental right is curtailed but his basic human rights
are not crippled so that the police officers can treat him
in an inhuman manner. On the contrary, they are under
obligation to protect his human rights and prevent all
forms of atrocities. We may hasten to add that a balance
has to be struck and, in this context, we may fruitfully
quote a passage from D. K. Basu (supra): -
"There can be no gainsaying that freedom of an individual
must yield to the security of the State. The right of
preventive detention of individuals in the interest of
security of the State in various situations prescribed
under different statutes has been upheld by the Courts. The
right to interrogate the detenus, culprits or arrestees in
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the interest of the nation, must take precedence over an
individual's right to personal liberty. ..........The
action of the State, however, must be "right, just and
fair". Using any form of torture for extracting any kind of
information would neither be 'right nor just nor fair' and,
therefore, would be impermissible, being offensive to
Article 21. Such a crime-suspect must be interrogated-
indeed subjected to sustain and scientific interrogation-
determined in accordance with the provisions of law. He
cannot, however, be tortured or subjected to third degree
methods or eliminated with a view to elicit information,
extract confession or derive knowledge about his
accomplishes, weapons etc. His constitutional right cannot
be abridged except in the manner permitted by law, though
in the very nature of things there would be qualitative
difference in the method of interrogation of such a person
as compared to an ordinary criminal."
39 In the case at hand, the appellant, while in custody,
was compelled to hold a placard in which condemning
language was written. He was photographed with the said
placard and the photograph was made public. It was also
filed in a revenue proceeding by the 7th respondent. The
High Court has recorded that the competent authority of the
State has conducted an enquiry and found the erring
officers to be guilty. The High Court has recorded the
findings in the favour of the appellant but left him to
submit a representation to the concerned authorities. This
Court, as has been indicated earlier, granted an
opportunity to the State to deal with the matter in an
appropriate manner but it rejected the representation and
stated that it is not a case of defamation. We may at once
clarify that we are not at all concerned with defamation as
postulated under Section 499 of the IPC. We are really
concerned how in a country governed by rule of law and
where Article 21 of the Constitution is treated to be
sacred, the dignity and social reputation of a citizen has
been affected.
40 As we perceive, from the admitted facts borne out on
record, the appellant has been humiliated. Such treatment
is basically inhuman and causes mental trauma. In "Kaplan &
Sadock's Synopsis of Psychiatry", while dealing with
torture, the learned authors have stated that intentional
physical and psychological torture of one human by another
can have emotionally damaging effects comparable to, and
possibly worse than, those seen with combat and other types
of trauma. Any psychological torture inflicts immense
mental pain. A mental suffering at any age in life can
carry the brunt and may have nightmarish effect on the
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victim. The hurt develops a sense of insecurity,
helplessness and his self-respect gets gradually atrophied.
We have referred to such aspects only to highlight that in
the case at hand, the police authorities possibly have some
kind of sadistic pleasure or to "please someone" meted the
appellant with this kind of treatment. It is not to be
forgotten that when dignity is lost, the breath of life
gets into oblivion. In a society governed by rule of law
where humanity has to be a laser beam, as our compassionate
constitution has so emphasized, the police authorities
cannot show the power or prowess to vivisect and dismember
the same. When they pave such path, law cannot become a
silent spectator. As Pithily stated in Jennison V/s.
Baker:-
"The law should not be seen to sit by limply, while those
who defy if go free, and those who seek its protection lose
hope."
(16) In the case of Dr.Balwant Singh Vs.
Commissioner Of Police, 2015 (4) S.C.C. 801,
it is reiterated as under:
"31 Indeed, this reminds us of the subtle observations
made by Justice M.C. Chagla, Chief Justice of Bombay High
Court in Firm Kaluram Sitaram V/s. The Dominion of India,
AIR 1954 Bombay 50, wherein while deciding the case
between the citizen on the one hand and State on the
other, the learned Chief Justice in his distinctive style
of writing reminded the State of their duty towards the
citizens while contesting his rights qua State and made
the following observations.
"....we have often had occasion to say that when the
State deals with a citizen it should not ordinarily rely
on technicalities, and if the State is satisfied that the
case of the citizen is a just one, even though legal
defences may be open to it, it must act, as has been said
by eminent judges, as an honest person.........."
32 We are in complete agreement with the aforementioned
statement of law laid down in Firm Kaluram Sitaram (supra)
as far back as in 1954. In our considered view, the
Constitution, inter alia, casts a duty on the State and
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their authorities to ensure that every citizen's cherished
rights guaranteed to him under the Constitution are
respected and preserved, and he/she is allowed to enjoy
them in letter and spirit subject to reasonable
restrictions put on them, as dreamt by the framers of the
Constitution. Intervention of the Court is called for at
the instance of citizen when these rights are violated by
fellow citizens or by any State agency."
(17) PRECEPTS FROM THE APEX COURT JUDGEMENTS
INCLUDING IN THE CASE OF D.K.BASU (SUPRA)
(A) The orders passed by the Supreme Court are the
law of the land in terms of Article 141 of the
Constitution of India and no Court or Tribunal
and for that matter any other authority, the
executive and instrumentalities of the State
and all of them have to fall in line with the
requirements of the standard of discipline in
order to maintain the dignity of institution
and ensure proper administration of justice.
(B) Any form of torture or cruel, inhuman or
degrading treatment would fall within the
ambit of Article 21 of the Constitution,
whether it occurs during investigation,
interrogation or otherwise. If the
functionaries of the Government become law-
breakers, it is bound to breed contempt for
law and would encourage lawlessness and every
man would have the tendency to become law unto
himself thereby leading to anarchy. No
civilized nation can permit that to happen,
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for a citizen does not shed-off his
fundamental right to life, the moment a
policeman arrests him. The right to life of a
citizen cannot be put in abeyance on his
arrest. The precious right guaranteed by
Article 21 of the Constitution of India cannot
be denied to convicts, under-trials, detenus
and other prisoners in custody, except
according to the procedure established by law
by placing such reasonable restrictions as are
permitted by law.
(C) The police officers should have greatest
regard for the personal liberty of citizens as
they are the custodians of law and order and,
hence, they should not flout the law by
stooping to bizarre acts of lawlessness. The
custodians of law and order should not become
depredators of civil liberties, for their duty
is to protect and not to abduct. When an
accused is in custody, his Fundamental Rights
are not abrogated in toto. His dignity cannot
be allowed to be comatosed. The right to life
is enshrined in Article 21 of the Constitution
and a fortiorari, it includes the right to
live with human dignity and all that goes
along with it.
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(D) It is apposite to note that an inhuman
treatment has many a facet. It fundamentally
can cover such acts which have been inflicted
with an intention to cause physical suffering
or severe mental pain. It would also include a
treatment that is inflicted that causes
humiliation and compels a person to act
against his will or conscience.
(E) Intentional physical and psychological torture
of one human by another can have emotionally
damaging effects comparable to, and possibly
worse than, those seen with combat and other
types of trauma. Any psychological torture
inflicts immense mental pain. A mental
suffering at any age in life can carry the
brunt and may have nightmarish effect on the
victim. The hurt develops a sense of
insecurity, helplessness and his self-respect
gets gradually atrophied. It is not to be
forgotten that when dignity is lost, the
breath of life gets into oblivion. In a
society governed by rule of law where humanity
has to be a laser beam, as our compassionate
constitution has so emphasized, the police
authorities cannot show the power or prowess
to vivisect and dismember the same. When they
pave such path, law cannot become a silent
spectator.
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CONCLUSION :
(18) The direction issued by the Apex Court till
today remain in its true and pristine form.
Hence, any deviation or violation of such
directions or guidelines would definitely
trigger the observations made in Paragraph
No.37 in the case of D.K.Basu (supra). In the
case of Ahmed Noormohmed Bhatti Vs. State of
Gujarat and Ors., (2005) 3 S.C.C. 647, after
referring to the eleven guidelines declared in
the case of D.K.Basu (supra), the Apex Court
has observed that these guidelines/
requirements are in addition to the
constitutional and statutory safeguards and do
not trim down the various directions given by
the Court from time to time in connection with
the safeguarding of the rights and dignity of
the arrestees.
(19) In the case of Ashok Paper Mills Kamgar Union
(supra), the Apex Court had an occasion to
consider the concept of 'willful disobedience'
of an order of the Court. It is held that
'willful' means an act or omission, which is
done voluntarily and with a 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
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bad purpose either to disobey or to disregard
the law. According to the Apex Court, it
signifies the act done with evil intent or
with a bad motive for the purpose.
(20) The Division Bench of this Court in case of
Prakash Kapadia, President Of Jagega Gujarat
Sangharsh Vs. Commissioner Of Police
(Ahmedabad City), 2012 (5) G.L.R. 3825 has
held thus:
"35 In the historic judgment in D.K.Basu v/s. State of
West Bengal (A.I.R. 1997 SC 610) the Supreme Court
initiated the development of "Custodial Jurisprudence"
including torture to arrestee infringement of fundamental
rights, citizen entitled to receive compensation from
State, quantum of compensation would depend on peculiar
fact of each case and punishment under section 330 of
Penal Code is inadequate to repair the wrong done to
citizen. The Supreme Court of India lamented on the
control of police power of arrest and issued guidelines in
carry out arrest and detention by police and law
enforcement agencies in the country. They also have the
force of law (Article 141 of the Constitution states that
the law declared by the Supreme Court is binding on all
courts in India). An officer who willfully or
inadvertently ignored Supreme Court directives can be
tried in court under relevant provisions of the Indian
Penal Code and/or under the Contempt of Courts Act,
1971."
(21) The established facts of the present case,
indicate that the respondents have indulged
themselves in the acts which are forbidden by
law and they have disregarded the law declared
by the Apex court in D.K.Basu (supra) and
catena of decisions. The Division Bench of
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this Court has held "An officer who willfully
or inadvertently ignored Supreme Court
directives can be tried in court under
relevant provisions of the Indian Penal Code
and/or under the Contempt of Courts Act,
1971.". Thus, even if the respondents have
inadvertently ignored the Supreme Court
directives, they are liable to be tried under
the Contempt of Courts Act. The acts of the
respondents are reminiscent of their intent to
fail to do something the law required them to
do, and they have engaged themselves in
committing an inhuman act with a horrific
purpose to humiliate the complainants in full
public view. The law enunciated by the Apex
court in the case of D.K.Basu (supra) is
flagrantly violated by the respondents in
committing the egregious act. The insensate
act of the respondents cannot be restricted to
the violation of guidelines stipulated in
paragraph No.35 of the judgement of D.K.Basu
(supra), but it also breaches the true spirit
and purport of the judgement, i.e. the
protection of human dignity, values and rights
guaranteed under the Constitution of India.
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APOLOGY
(22) The respondents in their affidavits and
submissions advanced before us have also urged
that the apology tendered by them may be
accepted. The exposition of law on the
acceptance of apology in contempt proceedings,
has been dealt with and reiterated by the
Supreme Court in catena of decisions. Being
conscious of the facts of the case, we may
refer couple of them as below:
(23) In the case of J.Vasudevan Vs. T.R.Dhananjaya,
1995 (6) S.C.C. 249 : AIR 1996 SC 137, while
examining the aspect of mercy in contempt
proceedings, the Supreme Court has held thus:
"14 Coming to the mercy jurisdiction, let it be first
stated that while awarding sentence on a contemnor, the
Court does so the uphold to majesty of law, and not with
any idea of vindicating the prestige of the Court or to
uphold its dignity. It is really to see that unflinching
faith of the people in the Courts remain intact. But, if
the order of even the highest Court of the land is allowed
to be wilfully disobeyed and a person found guilty of
contempt is let off by remitting sentence on plea of
mercy, that would sent wrong signals to everybody in the
country. It has been a sad experience that due regard is
not always shown even to the order of the highest Court of
the country. Now, if such orders are disobeyed, the effect
would be that people would lose faith in the system of the
administration of justice and would desist from
approaching the Court, by spending time, money and energy
their legal battle. If in such a situation mercy is shown,
the effect would be that people would not knock the door
of the Courts to seek justice, but would settle score on
the streets, where muscle power and money power would win,
and the weak and the meek would suffer. That would be a
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death knell to the rule of law and social justice would
receive a fatal blow. The Court cannot be a party to it
and, harsh though it may look, it is duty bound to award
proper punishment to unhold the rule of law, how so high a
person may be. It may be stated, though it is trite, that
nobody is above the law. The fact that the petitioner is
an I. A. S. Officer is of no consequence, so far as the
sentence is concerned. We would indeed think that if a
high officer indulges in an act of contempt, he deserves
to be punished more rigorously, so that nobody would take
to his head to violate Court's order. May we also say that
a public officer, being a part of Government, owes higher
obligation than an ordinary citizen to advance the cause
of public interest, which requires maintenance of rule of
law to protect which contemnors are punished."
(24) The Apex Court has declared that while
awarding sentence on a contemnor, the Court
does so to uphold the majesty of law, and not
with any idea of vindicating the prestige of
the Court or to uphold its dignity and it is
really to see that unflinching faith of the
people in the Courts remain intact. It is
cautioned by the Supreme Court that if the
order of even the highest Court of the land is
allowed to be flagrantly violated and a person
found guilty of contempt is let off by
remitting sentence on plea of mercy, that
would send wrong signals to everyone in the
country and it will be deleterious to the rule
of law. In a situation like this, if mercy is
shown, the effect would be that people would
not knock the door of the Courts to seek
justice, but would settle score on the
streets, where muscle power and money power
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would win, and the weak and the meek would
suffer, and that would be a death knell to the
rule of law and social justice would receive a
fatal blow. It has been asserted that the
Court cannot be a party to it and, harsh
though it may look, it is duty bound to award
proper punishment to uphold the rule of law,
how so high a person may be. In the instant
case the barbaours act has been videographed
and has been widely circulated in media and
has not remained confined to Undhela Chowk.
The apology tendered cannot be accepted in a
routine manner, although the apology may be
unconditional and bona fide. If the conduct is
so serious and reckless which disintegrates
the law declared by the highest court of land,
and has debilitating effect on the rule of
law, the apology cannot be accepted. In the
present case, it is not only the majesty of
the Court that has been degraded, but the
self-respect of the complainants is blown to
smithereens. The apology tendered to this
Court "only" will not wipe out the scars left
on the psyche of the complainants.
(25) Even after the declaration of guidelines in
the case of D.K.Basu (supra), the Supreme
Court on numerous occasions has reiterated and
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emphasised to follow and enforce them, but it
appears that the same has fallen in deaf ears,
and there seems to be no improvement in the
state of affairs. The guidelines are blatantly
violated and ignored, perhaps in the
expectation of gaining yellow pages fame and
with self assurance and self security of being
immune to legal consequences. In the present
case, it is apparent that the respondents
meted the appellants with merciless and
humiliating treatment. If we accept the
apology of the respondents, the same will be a
travesty of justice. The inhuman acts
committed by them are beyond the contours of
forgiveness. It is not open for the
respondents to contend that the law declared
by the Apex Court does not apply to them,
since it cannot be said that the complainants
were not subjected to custodial torture. Such
a contention is not only fallacious, but also
runs contrary to the spirit of the judgment of
D.K.Basu (supra).
(26) The feeling of getting humiliated to the
extent that it obliterates their sense of
being human is a stand alone feeling and is
not legally compensable. Thus, the acceptance
of apology tendered by the respondents will
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sent a wrong message to the society at large,
and everyone who has committed such an
inhumane act will cultivate a feeling of being
pardoned by the Court of law, and those who
have not yet engaged in such act, will be
encouraged to do so. In order to uphold the
majesty of law and to protect the unflinching
faith of the people in the "Judiciary", We
hold the respondent No.2-Mr.A.V.Parmar, the
respondent No.3-Mr.D.B.Kumavar, Respondent
No.5-Mr.Kanaksingh Laxman Singh, and the
respondent No.13-Mr.Raju Rameshbhai Dabhi
guilty of the Act, as defined under Section
2(b) of the Act.
(27) Section 12 of the Act prescribes the
punishment of simple imprisonment for a term
which may extend to six months, or with fine,
which may extend to two thousand rupees, or
with both. The judgments, on which the
reliance is placed by the respondents with
regard to determination of sentence cannot
come to their rescue, since neither the facts
nor the precedent of law applied will apply to
the facts of the present case. It is also
contended that the respondent no.2 has
recovered from a major surgery of brain tumor,
and he is advised another surgery, the
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respondent no.3 has completed 23 years of
service in the Police Department and has an
unblemished record, the respondent no.5 has
completed 27 years of service, hence, no
sentence should be imposed.
SENTENCE
(28) We have heard the learned Senior Advocates for
the respective parties on the aspect of
sentence.
(29) Learned Senior Advocate Mr.Jani, while placing
reliance on the judgement of the Apex Court in
the case of Bar Council Association (supra)
has submitted that considering the social
aspects of the respondents, fine may be
imposed instead of sentencing for
imprisonment. He has requested on behalf of
the respondents to take a liberal view and has
suggested that any directions regulating their
future conduct may be passed and the matter
may be kept pending, in order to observe
whether they are abiding any directions issued
by this Court in this regard.
(30) In response to the aforesaid submissions,
learned Senior Advocate Mr.Syed, while placing
reliance on the decision of the Apex Court in
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the case of J.Vasudevan (supra) has submitted
that since the Court has already expressed/
formed an opinion of the blatant disregard to
the rule of law by the respondents, the
contemnors should be rigorously punished
though they are high ranking officers. He has
submitted that the Apex Court has observed
that a public officer, being a part of
Government, owes higher obligation than an
ordinary citizen to advance the cause of
public interest, which requires maintenance of
rule of law, to protect which contemnors are
punished. The reliance is also placed by him
on the decision of the Apex Court in the case
of Balram Singh vs Bhikam Chand Jain And Ors.,
(1985) 4 S.C.C. 246 and has submitted that the
Apex Court has rejected the similar request
made by the contemnors for imposition of fine
instead of simple imprisonment with fine. He
has thus submitted that the acts, which are
committed by the respondents, are worthy of
inviting simple imprisonment instead of
imposition of fine.
(31) At this stage, we may incorporate observations
made by the Apex Court in the case of Balram
Singh (supra) :
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"As a last resort, he contended that even if they are
committed for contempt, they should be sentenced to pay a
fine. It would be a travesty of justice if the Court were
to allow such gross contempt of Court to go unpunished,
without an adequate sentence and we find no mitigating
circumstances whatever not to pass a sentence of
imprisonment. We accordingly commit the contemnors for
contempt of Court and sentence each of them to undergo
simple imprisonment for a period of three months and to
pay a fine of Rs. 1,000 or in default, to undergo simple
imprisonment for a further period of one month."
::ORDER::
(32) We have already discussed the inhuman acts
committed by the respondents on the complainants
by violating the law declared by the Supreme
Court. Looking to the over all facts and the
manner, in which the incident has occurred and
in light of the service rendered by the
respondents in the Police department, in our
considered opinion, the interest of justice
would be served if the respondents are ordered
sentence of undergoing simple imprisonment of 14
days and fine of Rs.2,000/- and in default,
further simple imprisonment of 3 days. Hence,
the respondent No.2-Mr.A.V.Parmar, the
respondent No.3-Mr.D.B.Kumavar, Respondent No.5-
Mr.Kanaksingh Laxman Singh, and the respondent
No.13-Mr.Raju Rameshbhai Dabhi are sentenced to
undergo simple imprisonment of 14 (fourteen)
days and fine of Rs.2000/- and in default, shall
further undergo simple imprisonment for 3 days.
The contempt application is allowed. Rule made
absolute. No order as to costs.
NEUTRAL CITATION
C/MCA/1067/2022 JUDGMENT DATED: 19/10/2023
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(33) We appreciate the efforts put in by the learned
Chief Judicial Magistrate, Nadiad in preparing
the report, which has facilitated us to
effectively deal with the instant contempt
application.
(34) The respondents are directed to present
themselves before the Registrar Judicial of this
Court within 10 days from the date of receipt of
the present order. The Registrar Judicial shall
accordingly refer them to the appropriate jail
authority.
(35) At this stage, learned Senior Advocate Mr.Jani,
while inviting attention of this Court to the
provisions of Section 19(4)(b) of the Contempt
of Courts Act, 1971 has submitted that the
directions issued by this Court may be stayed
for the period of 60 days.
(36) We accede to his request. The directions issued
by this Court with regard to the sentence are
stayed for a period of 03 (three) months.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(GITA GOPI,J)
NVMEWADA/2
