Ketan Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 4219 MP

IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPU R
                        BEFORE
          HON'BLE SHRI JUSTICE VISHAL DHAGAT

              WRIT PETITION No. 19380 of 2022

BETWEEN:-

KETAN SINGH S/O SHRI DIWAN SINGH, OCCUPATION:
PRIVATE SERVICE, R/O HOUSE NO. 46-1, MOHAMAI KA
BAGH. BUNDELA BHAWAN, NEAR RAILWAY STATION,
TEHSIL HUZUR, DISTRICT BHOPAL (MADHYA
PRADESH).

                                              .....PETITIONER

(SHRI SUMIT NEMA - SENIOR ADVOCATE WITH SHRI AYUSH GUPTA -
ADVOCATE FOR PETITIONER)

AND

1.    STATE OF MADHYA PRADESH THROUGH ITS
      ADDITIONAL CHIEF SECRETARY, HOME
      DEPARTMENT, VALLABH BAHWAN II, BHOPAL
      (MADHYA PRADESH).

2.    DIRECTOR GENERAL OF POLICE, POLICE
      HEADQUARTERS, SWAMI DAYANAND NAGAR,
      JAHANGIRABAD,    BHOPAL    (MADHYA
      PRADESH).

3.    COMMISSIONER    OF   POLICE, BHOPAL
      METROPOLITAN AREA, MALVIYA NAGAR
      BHOPAL (MADHYA PRADESH).

4.    STATION HEAD OFFICER (S.H.O.), MAHARANA
      PRATAP NAGAR POLICE STATION, BHOPAL
      (MADHYA PRADESH).

5.    COMMISSIONER OF POLICE, OFFICE OF
      POLICE COMMISSIONER - HYDERABAD CITY,
      BASHEERBAGH HYDERABAD (TELANGANA)
      500029.
                                -   2 -

6.    ASSISTANT COMMISSIONER OF POLICE,
      SPECIAL  INVESTIGATION    TEAM     (SIT),
      CENTRAL CRIME STATION (CCS), HYDERABAD
      DISTRICT     HYDERABAD       TELANGANA
      (TELANGANA).

7.    SHRI A.R. SRINIVAS (INDIAN POLICE SERVICE
      2014), ADDITIONAL      COMMISSIONER    OF
      POLICE       (CRIMES      AND     SPECIAL
      INVESTIGATION       TEAM),    HYDERABAD
      TELANGANA          (EARLIER        DEPUTY
      COMMISSIONER OF POLICE, WEST ZONE
      HYDERABAD TELANGANA).

8.    SHRI NAGESHWARA RAO, STATION HEAD
      OFFICER / THANA IN CHARGE, MALAKPET
      POLICE STATION, HYDERABAD (TELANAGNA)
      500036.

9.    SHRI B. ASHOK REDDY, SUB INSPECTOR
      COMMISSIONER'S TASK FORCE NORTH ZONE,
      HYDERABAD CITY POLICE, HYDERABAD
      (TELANGANA).

10.   SHRI   K.  SRIKANT,   SUB  INSPECTOR
      COMMISSIONER'S TASK FORCE NORTH ZONE
      HYDERABAD CITY POLICE, HYDERABAD
      (TELANGANA).

11.   SHRI K. SHEKHAR, CONSTABLE, HYDERABAD
      CITY POLICE, HYDERABAD (TELANGANA).

                                                  ..... RESPONDENTS

(SHRI G.P. SINGH - GOVERNMENT ADVOCATE FOR RESPONDENTS NO. 1
TO 4 AND SHRI AKSHAY NAMDEO - ADVOCATE FOR RESPONDENTS NO. 5
TO 7).

Reserved on                  : 22.02.2023

Pronounced on                : 17.03.2023

      This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
                                   -   3 -

                                 ORDER

Petitioner has filed this petition under Article 226 of Constitution of India making a prayer to direct respondent No. 4 to register FIR on basis of complaint dated 29.07.2022 and 08.08.2022. Further prayer is made to conduct an enquiry against action of respondents No. 7 to 10. It was also prayed to issue direction to respondent No. 5 to take action against respondents No. 6 to 11 for illegal activities committed by them and restrain respondent No. 5 to 11 for causing any further harassment to petitioner and to protect fundamental rights of petitioner guaranteed under Article 14 and 21 of the Constitution of India.

2. Petitioner is Assistant Professor of Sarvapalli Radhakrishnan University situated at Bhopal (M.P.). He is resident of Mohamai Ka Bagh, Bundela Bhawan, Bhopal. It is alleged in petition that he was abducted by private respondents from his house. Private respondents visited the house of petitioner on night of 11.02.2022 and forcefully took him to Hyderabad via Nagpur. No warrants of arrest was shown to petitioner. Said persons claimed to be member of Task Force of Hyderabad Police Commissioner. Petitioner was kept in illegal confinement from 11.02.2022 to 14.02.2022 and was put to severe mental and physical torture at Police Station Malakpet, Hyderabad. It is submitted that during said period, no formal complaint or FIR was lodged against petitioner. Respondents are continuously harassing petitioner and openly violating procedure laid down in Cr.P.C and also violated his fundamental rights guaranteed to him under Article 14 and 21 of Constitution of India.

3. Learned Senior Counsel appearing for petitioner submitted that petitioner was on routine walk on 11.02.2022 at night about 11 PM.

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Outside his residence, 5 persons armed with weapons bundled petitioner inside a vehicle and drove away. Mobile phone of petitioner bearing No. 8602635353 was snatched by abductors. Petitioner was taken to Nagpur. He was not allowed to contact his family members nor his family members were informed. He was subjected to verbal abuses and physical assault. From Hyderabad, he was taken to Malakpet Police Station, Hyderabad. Vehicle in which petitioner was abducted was using false number plate "MP-04-1357" which was replaced at Hyderabad by local number plate. All aforesaid acts happened under Shri Nageshwar Rao, Incharge Police Station Malakpet. False FIR was lodged against him after 72 hours of his abduction on 14.02.2022 at Malakpet Police Station at Crime No. 62/2022 under Sections 420, 465, 468, 471 read with Section 34 of Indian Penal Code. Arrest of petitioner was shown at House No. 16/11/20/7, Hymavathi Heights, Malakpet Area, Hyderabad on 14.02.2022 at 9:30 PM. Petitioner was under illegal confinement and abduction at Police Station since night of 11.02.2022. Said facts can be verified from footage of CCTV cameras. It is submitted that later on, FIR at Crime No. 63/2022 and Crime No. 79/2022 were also registered at different Police Stations. Petitioner was released on bail by 14th Additional Chief Judicial Magistrate by order dated 09.04.2022 and thereafter, petitioner is complying with order. Petitioner is required to appear regularly before Special Investigating Team Hyderabad, but, on his visit, he is under threat and harassment by police officers. On his return to Bhopal, petitioner filed complaint dated 29.07.2022 at Police Station MP Nagar, Bhopal and complaint dated 08.08.2022 to Director General of Police and jurisdictional Police Commissioner. No action has been taken on his complaint and rights guaranteed to him under Constitution of India has been violated. Due to said harassment, petitioner

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suffered injury and physical wounds and also suffered hypertension, anxiety disorder, constant stress and panic attacks.

4. Learned Senior Counsel appearing for petitioner submitted that offences committed by respondents No. 5 to 11 are cognizable offences and fall within Section 343 of Indian Penal Code. Learned Senior Counsel appearing for petitioner placed reliance on judgment passed by Apex Court in Case of D.K. Basu vs State of W.B., (1997) 1 SCC PE 416 and Joginder Kumar vs. State of U.P., 1994 AIR SC 1349. It is submitted that petitioner was not presented before Judicial Magistrate within stipulated time of 24 hours in accordance with Section 167 of Cr.P.C. Reliance is also placed on order passed by Delhi High Court in W.P. No. (Crl.) No. 2189/2018 dated 12.12.2019. In said case, reliance was placed on office memorandum dated 16.05.2012 issued by the Ministry of Home Affairs. In said office memorandum, procedure is laid down for police officers for arresting an accused / fugitive outside the State. It was held that police officers outside State must establish contact with concerned State police and transit remand be obtained unless exigency of situation warrants otherwise. Further, the arrested person be produced before Magistrate having jurisdiction of the case without infringing mandate of Article 22 of the Constitution of India and Sections 56 and 57 of Cr.P.C. Protocol to be followed by police in inter-State arrest, which was advised by the Committee and relevant are reproduced as under :

"1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.

2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the

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purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/search warrants.

3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.

4. If the possible arrestee is a female, a lady police officer be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.

5. Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.

6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.

7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.

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8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.

9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim's name be also indicated.

10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.

11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41(l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314)

12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon'ble Supreme Court, new Sections 41A to

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41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.

13. In terms of S. 41C, control rooms be established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. Control Room at State level must collect details of the persons so arrested.

14. The police officer must record all the proceedings conducted by him at the spot and prepare an 'arrest memo' indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.

15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be able to arrange legal assistance for him.

16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.

17. On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.

18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal

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feelings. The materials before him must be sufficient to cause a bona-fide belief. He cannot take shelter under another person's belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-fide. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.

19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.

20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.

21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicle should be used for transportation to the extent possible."

It is further submitted that respondents No. 1 to 4 ought to have registered an FIR on basis of complaint made by petitioner and conduct an enquiry as offences were cognizable in nature and said respondents ought to have complied with directions issued by the Supreme Court in case of Lalita Kumari vs Government of U.P., (2014) 2 SCC 1. Respondents i.e. officers of Telangana Police failed to comply with the guidelines issued by the Supreme Court in case of Arnesh Kumar vs State of Bihar, (2014) 8 SCC 273, which amounts to contempt of Court. Police further did not record any reasons for arrest, which is mandatory if a person is arrested without a warrant. Further reliance is place on judgment passed by Apex Court in case of Satendra Kumar Antil vs Central Bureau of Investigation, order dated 11.07.2022. Respondents had acted in violation of Standard Operating Procedure, which resulted in violation of fundamental and legal rights of petitioner. It is also submitted that officers of Telangana Police had also violated Section 29 of Police Act and Section

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220 of Indian Penal Code. It is also argued that respondent police officers has tainted history and Court cases and contempt cases against respondents No. 7 and 8 are pending. In said circumstances, learned Senior Counsel appearing for petitioner prayed for reliefs as mentioned above.

5. Learned Counsel appearing for the respondents had filed counter affidavit on behalf of Assistant Commissioner of Police, Special Investigation Team, CCS Hyderabad. It is stated on affidavit that complaint was received from one P. Manikanta Raju, SI of Police Station Malakpet. Complaint was lodged against one Ancha Srikantha Reddy of running a fake educational consultancy at Hymavathi Height, Saleem Nagar Malakpet. He is providing fake and fabricated educational certificates of Sarvepalli Radhakrishnan University, Bhopal. Delay in acting on information may cause disappearance of accused and evidence therefore, he obtained memo from senior officers and after drafting such proceedings under Section 165 of Cr.P.C. proceeded to spot at Hymavathi Heights. Petitioner alongwith other co-accused persons were found at House No. 16-11-20/7/H/Y at Sri Sai Educational Consultancy. Search was conducted. Ancha Srikantha Reddy confessed guilt of commission of crime. Petitioner Ketan Singh arranged degree of SRK University without examination and attendance of students and collected money. 20 certificates were made available by Ketan Singh. Further memorandum was given and name of co-accused namely Sunil Kapur, Gopal Panda, Ravindra Gupta, GG Ladda was also disclosed. He also divulged name of other persons to be involved in the case. Detail of employees and other persons who were involved in offence was also given on affidavit. It is submitted that on 14.02.2022, FIR was registered and arrest memos were issued and Investigating Officer effected arrest. It is submitted arrest was made in strict compliance of

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provisions of Cr.P.C. It is further submitted that reasons in remand report and reasons for arrest has been mentioned by Investigating Officer. Guideline laid down by Apex Court in case of Arnesh Kumar was complied with. It is submitted that other co-accused persons are absconding in the case and they are in management of SRK University, Bhopal. It is denied that petitioner was brought from Bhopal to Hyderabad without registration of FIR. Petitioner was arrested on 14.02.2022 and was produced before Magistrate on 15.02.2022. There is no basis of allegation that petitioner was abducted from Bhopal and taken to Hyderabad. It is submitted that allegations were made so that police may not take any action against petitioner and other co-accused persons. It is also alleged that petitioner did not comply with the conditions of bail order. It is submitted that act of petitioner is involved in scandal of issuance of bogus certificate and he cannot take plead ignorance and take shelter of Constitution of India. It is also argued by counsel for respondents that fundamental rights are not absolute but are subject to restrictions. It is submitted that Apex Court has held in case of Udyami Evam Khadi Gramodyog Welfare Sanstha and another vs State of Uttar Pradesh, (2008) 1 SCC 560 that writ remedy is equitable one. Person approaching superior Court without clean hands is not entitled to get any relief. Reliance is also placed on judgment passed in case of K.D. Sharma vs Steel Authority of India Ltd and others, (2008) 12 SCC 481, Dalip Singh vs State of U.P., (2010) 2 SCC 141, Amar Singh vs Union of India and others, (2010) 2 SCC 114 and Kishore Samrite vs State of U.P. and others, (2013) 2 SCC 398, wherein it was held that if petitioner has not approached the Court without clean hands and making suppression and concealing all material facts then such person is abusing the process of

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Court and he is not entitled to any relief. It is further argued that petitioner is not entitled to any compensation. He is involved in white collar offence and only wants to deviate the investigation, which is being carried out by respondents and in such circumstances, writ petition be dismissed.

6. Question before this Court is whether officials of Telangana Police came to Bhopal on 11.02.2022 and took away petitioner from Bhopal to Telangana. On said date, no FIR was registered against petitioner and said officials had acted contrary to directions issued by the Supreme Court and also violated fundamental constitutional rights of petitioner. It is also to be considered whether respondents No. 1 to 5 had committed an error in not acting on complaint given by petitioner

7. From pleadings of the parties available on record, dispute between petitioner and respondents is in narrow compass. Petitioner alleges that he was abducted and taken away by Telangana Police on 11.02.2022, whereas respondents submitted that petitioner was arrested on 14.02.2022 in Hymavathi Height Building, Malakpet where he was present with other co- accused persons in Sri Sai Educational Consultancy of Ancha Srikantha Reddy. If allegations made by petitioner are correct, then respondents had violated the Code of Criminal Procedure and had also violated the fundamental rights of petitioner guaranteed to him under Articles 19 and 21 of the Constitution of India. It is submitted that no FIR was recorded against petitioner on 11.02.2022 therefore, there was no cause or reason for police to come to Bhopal for arresting petitioner Ketan Singh. Police can start investigation after registration of FIR and there was no FIR against petitioner or any other credible information regarding commission of offence before 14.02.2022. FIR was registered on 14.02.2022 therefore, reasonable grounds for belief of committing an offence will be available to

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respondents to arrest petitioner only after recording of FIR on 14.02.2022 or while conducting any preliminary enquiry after receiving the complaint and not before that. It is clear that there was no reasonable cause or apprehension in minds of Telangana Police as on 11.02.2022 to arrest petitioner as there was no complaint on said date. If any action has been taken by respondent authorities on 11.02.2022 to take away petitioner from Bhopal without informing local police or without issuance of warrants from Court of law and without registration of FIR, same is absolutely illegal. Now only thing which is to be determined in this case is whether petitioner was taken away/abducted on 11.02.2022 by Telangana Police and private respondents in this case or not. Said exercise cannot be done on the basis of affidavits filed in writ petition.

8. In these circumstances, Commissioner of Police Hyderabad is directed to hand over the CCTV footage of Police Station Malakpet, Hyderabad from night of 11.02.2022, 12.02.2022, 13.02.2022 and 14.02.2022 to Commissioner of Police, Bhopal Metropolitan Area, Malviya Nagar, Bhopal (M.P). Commissioner of Police, Hyderabad is also directed to give cell phone numbers of private respondents No. 7 to 11 to Commissioner of Police, Bhopal Metropolitan Area, Malviya Nagar, Bhopal to investigate whether location of official and personal cell phone numbers of said police officers were within vicinity of Bhopal or not. Said evidence be handed over to Investigating Officer of Police Station M.P. Nagar (Maharana Pratap Nagar), Bhopal for preparation of report. Said Investigating Officer will also consider the evidence which has been produced by petitioners to show that private respondents were at Bhopal on 11.02.2022 and petitioner was whisked away by them to Hyderabad. Report be submitted to the office of Commissioner of Police, Bhopal

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Metropolitan Area, Malviya Nagar, Bhopal. Commissioner of Police, Bhopal Metropolitan Area, Malviya Nagar, Bhopal shall file said report before this Court for consideration and disposal of the writ petition.

9. List the matter in week commencing 01.05.2023.

(VISHAL DHAGAT) JUDGE

vkt

VINOD Digitally signed by VINOD KUMAR TIWARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

KUMAR 2.5.4.20=502f56362111056e3584ca82279e5efd816 766cb7c5a1f490a5ca63b1116883f, pseudonym=064375E039EECAAF492B2C2C606076 E420E163D2,

TIWARI serialNumber=121D0E9F65C983AD5649337870262 2477111B5016F24D35FA8A76C2CA46685EE, cn=VINOD KUMAR TIWARI Date: 2023.03.17 17:46:51 +05'30'