Anita Panwar and Others vs State of H.P. and Another

P.D. Desai, C.J.—Petitioners No. 1 to 5, some of whom are minors, are the sons and daughters and Petitioner No. 6 is the wife of one Asa Ram, who is a resident of village Chaklu, Tehsil Arki, District Solan.

One Nirmala lodged a First Information Report on August 26, 1984, at the Police Station Sadar, Shimla, alleging the commission of an offence punishable u/s 379 of the Indian Penal Code at the Shimla Bus Stand on August 24, 1984, in which a girl was stated to have been involved. Apprehending arrest in connection with the said case, an application for anticipatory bail was moved on behalf of the first Petitioner, Anita, before the learned Sessions Judge, Shimla, on August 26, 1984. The learned Sessions Judge, Shimla assigned the said application for hearing to the learned Additional Sessions Judge, Shimla and, meanwhile, issued interim directions that Anita should not be arrested till the application was heard and finally decided. The learned Additional Sessions Judge granted the anticipatory bail on August 28, 1984, with a direction that Anita should co-operate in the investigation of the offence as and when called upon by the Investigating Officer. On August 30, 1984, an application was moved for and on behalf of Anita before the learned Additional Sessions Judge, Shimla, seeking directions that the Investigating Officer should permit her lawyer to remain present at the time of investigation in case her presence was required at the police station for the purposes of interrogation. The application was heard on August 31, 1984. It appears that at that time a statement was made by or an behalf of the Investigating Officer that the presence of Anita was not required for the time being for the purposes of investigation and that, therefore, no effective orders were made on the said application in view of the said statement.

On September 19, 1984, Asa Ram, his son Devinder (Petitioner No. 4), who is admittedly a minor, his daughters Anita and Uma (Petitioner Nos. 1 and 5 respectively) and his wife Kalawati (Petitioner No. 6) were summoned to the Police Station Sadar, Shimla, for interrogation by the Investigating Officer (second Respondent) but none of them reported to the police station. Again on November 29, 1984, Asa Ram, Uma, Anita and Kalawati were summoned to the Police Station Sadar, Shimla, for interrogation by A.S.I. Kuldip Chand but on the said occasion also they failed to report as directed.

An application appears to have been moved before the learned Additional Sessions Judge, Shimla, on the same day, that is, on November 29, 1984, by and on behalf of some of the Petitioners, praying that necessary orders be made directing that Asa Ram and his family members be not summoned to the police station for interrogation. On the said application, the learned Additional Sessions Judge, Shimla, passed the following order on December 1, 1984:

Heard. It is stated by the Counsel for the applicant that in case the police want to call the accused Anita at the police station for interrogation, then a direction may be issued to them that they should not interrogate her in the absence of her lawyer. Prosecution has no objection. Accordingly it is ordered that Anita shall not be called at the Police Station and interrogated in the absence of her lawyer Miss Vandhna Thakur. The Police shall inform her lawyer in advance about the date and time of summoning the accused Kumari Anita. It is further ordered that the accused shall not be called at the Police Station, after the sun-set and before the sun-rise, and in no case shall she be kept in the Police Station after the sun-set and before the sunrise. The Investigating Officer of the case, Shri Kuldip Chand A.S.I. who is present in Court, says that the applicant Kumari Anita be directed to appear at the Police Station at 10 a.m. along with her lawyer. Accordingly, Miss Vandhna Counsel for the applicant is directed to take the applicant to Police Station, Sadar, on 3-12-1984 at 10 a.m. for interrogation.

Application be consigned to the record room.

The Petitioners have, thereupon, instituted the present petition praying that the order above quoted passed by the learned Additional Sessions Judge, Shimla, be quashed and set aside and that the Investigating Officer be directed to interrogate the Petitioners at their residence before sun-set and after sunrise, if required.

The petition was listed for admission on December 3, 1984, on which day Rule was issued and it was made returnable on December 5, 1984. The Investigating Officer was directed to file an affidavit-in-reply dealing with the averments made in the petition and specifically disclosing whether any of the male Petitioners under the age of 15 and female Petitioners were required to attend the Police Station in the course of the investigation of the offence in question and, if so, on what days and at what hours and at which Police Station. The State Government was directed to file an affidavit-in-reply stating whether any action had been taken pursuant to the directions issued by this Court in its judgment dated September 6, 1984, rendered in Criminal Writ Petition No. 37 of 1984, Nawal Thakur and Anr. v. State of Himachal Pradesh and Anr. in connection with the amendment of sub-para (3) of Para 26.18-A of the Punjab Police Rules, 1934, Volume-III.

In pursuance of the order passed as aforesaid, three affidavits-in-reply have been filed on behalf of the Respondents. The Inspector of Police, Police Station, Sadar, Shimla, in the course of his affidavit dated December 5, 1984, has substantially admitted the facts set out herein above. The provisions of Para 26.18-A of the Punjab Police Rules, 1934, have been relied up- on by the deponent in support of the action summoning the persons concerned to the Police Station for the purposes of investigation. It is also asserted that the directions issued by the learned Additional Sessions Judge, Shimla, for the production of Anita at the Police Station in the presence of her Counsel were not violative of any law in force. The Inspector General of Police has filed an affidavit dated December 4, 1984, stating that in pursuance of the directions issued by this Court in its judgment rendered on September 6, 1984, in Criminal Writ Petition No. 37 of 1984, Nawal Thakur and Anr. v. State of Himachal Pradesh and Anr. an amendment has been made in Punjab Police Rules-Para 26.18-A, substituting the following sub-para (3) in place and stead of the existing sub-para (3):

No male person under the age of 15 years or woman shall be required by any police officer making investigation under Chapter XII of Code of Criminal Procedure to make attendance at any place other than the place in which such male person or woman resides.

It is averred in the affidavit that instructions were also issued to all the District Superintendents of Police and Deputy Inspector Generals of Police of Ranges to follow the guidelines laid down in the judgment rendered by this Court in the aforementioned case in connection with the arrest of females and for investigation of cases involving females. The Deputy Secretary (Home) has filed an affidavit dated December 5, 1984, substantially identical with the affidavit filed by the Inspector General of Police.

On the material placed on record, the undisputed position which emerges is that at least on two different occasions some of the female members of the family of Asa Ram and, on one occasion, his minor son were summoned by the Investigating Officers at the Police Station, Sadar, Shimla. Besides, by the impugned order dated December 1, 1984, the learned Additional Sessions Judge, Shimla, has authorised the Investigating Officer to summon Anita at the Police Station at anytime before sun-set and after sun-rise, provided her advocate is kept present at that time A specific order was made by the learned additional Sessions Judge directing Anita to appear at the Police Station Sadar, Shimla on December 3, 1984 at 10 a.m. for interrogation. The question which arises against the aforesaid background is whether the action of the Investigating Officer in summoning females and a minor male person at the Police Station for investigation and the order passed by the learned Additional Sessions Judge, Shimla, directing Anita to appear at the Police Station for the purposes of interrogation is in accordance with law.

In the judgment rendered on September 6, 1984, in Criminal Writ Petition No. 37 of 1984, Nawal Thakur and Anr. v. State of Himachal Pradesh and Anr. this Court had an occasion to make certain observations in connection with the entitlement of a female to special treatment in matters of search, medical examination, attendance at the police station for the purposes of investigation and bail. Since those observations are pertinent in the present context, they are extracted herein-below:

The legislative policy as reflected in the various provisions of the Code of Criminal Procedure, 1973, clearly manifests that a woman is entitled to special treatment in matters of search, medical examination, attendance at the police stations for the purposes of investigation and bail [see: proviso to Sub-section (2) of Section 47, Sub-section (2) of Section 51, Sub-section (2) of Section 53, proviso to Sub-section (1) of Section 160 and proviso to Sub-section (1) of Section 437]. The Punjab Police Rules, 1934, Volume-III, Chapter XXVI, make special provisions relating to the arrest of woman. According to paragraph 26.18-A: (0 such arrest has to be carried out by police officers not below the rank of Assistant Sub-Inspector of Police or, when no such officer is available, by a Head Constable in presence of responsible male relatives and village or town officials, (ii) such arrest has to be specially reported in the manner prescribed by Rule 24.12 and 24.15 to an appropriate authority, (Hi) when such arrest has been made by an officer of rank lower than Assistant Sub-Inspector, the reason must be clearly explained, (iv) where bail is admissible, the woman must not be detained longer than is necessary for the production of the bond or sureties, (v) no applications for remand to police custody will be made without the special order of a gazetted officer, (vi) no woman in police custody shall be lodged even for a night in a police station except in unavoidable circumstances and she is to be placed at once before a Magistrate for remand to judicial custody except where a remand to police custody is necessary and has been obtained in accordance with the direction above-mentioned, (vii) a woman remanded to judicial custody must be immediately transferred to headquarters or properly equipped sub-divisional female judicial lock-ups, (viii) all remands of women must be reported immediately to the District Magistrate, (ix) the gazetted officer supporting an application for remand to police custody is responsible for the taking of necessary measures for the decent custody of the prisoners, (x) the women in police custody must be escorted about for the purpose of investigation by an officer not below the rank of Assistant Sub-Inspector or in default by a Head Constable, (xi) woman attending police investigations and enquiries as distinct from those under arrest are not to be detained in police stations or with the police any longer than is necessary and in no case they are to remain with the police between sun-set and sun-rise, and (xii) if it is necessary to take a woman witness about the countryside for identification etc., she is required to be accompanied by a responsible male relative or her zailder, safedposh, lambardar, mohalladar or other respectable male neighbour.

These various statutory provisions and executive instructions reflect the policy of law that a woman, whether in custody or a witness during the course of police investigation, is by virtue of her sex to be guaranteed dignity and privacy. The public policy as reflected in these directions, although not complimentary to the police personnel, is based on experience which appears to have justified the presumption that the females must, as far as possible, be kept away from exclusive male police company and that, so far as practicable, they should be escorted by police officers of appropriate rank and that at various stages the police officers of higher rank must be kept specially informed and their directions should be sought in regard to certain matters concerning a female accused. No woman in police custody is to be lodged even for a night in a police station except under unavoidable circumstances. Women remanded to judicial custody are required to be immediately transferred to headquarters or properly equipped sub-divisional female judicial lock-ups.

xx xx xx xx xx xx xx The Court also considers it essential to draw the attention of the State Government to the proviso of Sub-section (1) of Section 160 of the Code of Criminal Procedure, 1973 which, inter-alia, provides that no woman shall be required to attend before any police officer making an investigation under Chapter-XII at any place other than the place in which such woman resides. The Court finds that the provisions contained in sub-para (3) of para 26.18-A of the Punjab Police Rules, 1934, Volume-III, are not in accord with the statutory provisions contained in the proviso to Sub-section (1) of Section 160 of the Code of Criminal Procedure, 1973. The State Government is, therefore, directed to introduce appropriate amendments in the relevant provisions of paragraph 26.18-A within a period of four weeks from today and to report compliance to the Court.

The necessary amendment in Para 26.18-A of the Punjab Police Rules, 1934, Volume-III has since been carried out as is evident from the affidavits filed in the instant proceedings by the Inspector General of Police as well as by the Deputy Secretary (Home). Certain instructions also appear to have been issued by the Inspector General of Police to the police officers at the lower levels drawing their attention to the observations made by this Court in Nawal Thakur''s case. However, as the present case discloses, the amendment of the relevant provisions of the Punjab Police Rules as well as the instructions issued by the Inspector General of Police do not appear to have had the desired effect and actions are still being taken in contravention of the statutory provisions contained in the proviso to Sub-section (1) of Section 160 of the Code of Criminal Procedure and sub-para (3) of Para 26.18-A of the Punjab Police Rules, 1934, Volume-III. What is still more regret table is that the Courts in the State do not appear to be conscious of the legal protection afforded to females and minor male persons by the relevant statutory provision and vigilant to enforce the same, as is evident from the impugned order made in this case by a Judicial Officer of the rank of Additional Sessions Judge.

Section 160 of the Code of Criminal Procedure, in so far as it is relevant for the present purposes, reads as under:

Police Officer''s power to require attendance of witnesses.-(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or women shall be required to attend at any place other than the place in which such male person or women resides.

In Nandini Satpathy Vs. P.L. Dani and Another, the true ambit and effect of the above-mentioned provision, inter alia, was examined in the context of the prohibitive sweep of Article 20, sub-article (3) of the Constitution. In para 32 of the decision, the Supreme Court specifically dealt with the question whether the police have power u/s 160 and Section 161 of the Code of Criminal Procedure to question a person, who then was or, in the future may, incarnate as an accused person. Having referred to the decision of the Privy Council in AIR 1939 47 (Privy Council) and of the Supreme Court in Mahabir Mandal and Others Vs. State of Bihar, the law was declared in no uncertain terms as follows:

We hold that ''any person supposed to be acquainted with the facts and circumstances of the case'' includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note ''examination of witnesses by police'' clinch the matter. A marginal note clears ambiguity but does not control meaning. Moreover, the suppositious accused figures functionally as a witness. To be a witness'', from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused u/s 161, Code of Criminal Procedure The dichotomy between ''witnesses'' and ''accused'' used as terms of art, does not hold good here. The amendment, by Act XV of 1941, of Section 162(2) of the Code of Criminal Procedure is a legislative acceptance of the Pakala Narayana Swamy reasoning and guards against a possible repercussion of that ruling. The Appellant squarely fell within the interrogational ring. To hold otherwise is to fold up investigative exercise, since questioning suspect is desirable for detection of crime and even protection of the accused.

It is a matter beyond the pale of doubt, therefore, that the provisions of Section 160 of the Code of Criminal Procedure are not confined in their operation only to witnesses. Sub-section (1) of Section 160 and its proviso, therefore, apply not only to witnesses but also to an accused, whether the person concerned is named as such or suspected to be involved in the commission of an offence which maybe under investigation. As a necessary corollary and consequence, the protection afforded to a male person under the age of 15 years and to a woman under the said proviso against being required to attend before a police officer making investigation of an offence under Chapter XII is available not only to a person falling within the said category if he or she is a witness but also if such a person is an accused or a person suspected to be involved in the commission of an offence. No such person, as a result of the legislative injunction contained in the proviso to Sub-section (1) of Section 160, can be required to attend for any purpose connected with the investigation of an offence under Chapter XII at any place other than the place in which such male person or woman resides. Similar is the effect of the amended sub-para (3) of Para 26.18-A of the Punjab Police Rules, 1934, Volume III.

In light of the statutory position adumbrated above, there is no manner of doubt that the Investigating Officers concerned acted wholly contrary to and in breach of the relevant provisions of law in summoning the female relatives of Asa Ram and his minor son Devinder at the Police Station Sadar, Shimla, at least on two different occasions. It is also clear that the learned Additional Sessions Judge acted contrary to law in directing Anita to appear at the Police Station in the company of her Counsel under the impugned order. True it is that so far as the Investigating Officer is concerned, he may take shelter behind the impugned order and claim protection there under. However, such an ultra vires order is no defence to an illegal action and this is evident from the following observations made in paragraph 17 of the judgment in Nandini Satpathy''s case:

Before discussing the core issues, we wish to note our regret, in this case, at a higher level police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the wholesome proviso to Section 160(1) of the Code of Criminal Procedure Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting Ors. to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused l to appear at the police station, that is no absolution for a police officer from disobedience of the law.

(Underlining supplied).

These observations in Nandini Satpathy''s case require to be borne in mind by all police personnel in this State whether at the highest or at the lowest level and also by the State Government so that the erring police officials can be dealt with properly for the breach of this salient statutory provision. In the instant case also, the erring police officials concerned cannot be excused for their unauthorised actions, all the more so when the second Respondent has sought to justify the learned Additional Sessions Judge''s order even in the return. The Courts dispensing criminal justice in this State also must bear in mind these salient provisions of law and they must not give directions of the nature which have been given by the learned Additional Sessions Judge in the present case. In fact, there is a greater duty on the part of the Courts to secure enforcement of all these various provisions strictly and any deviation from that course on their part will necessarily invite judicial censure from this Court besides correctional action.

In view of the foregoing discussion, the impugned order passed by the learned Additional Sessions Judge, Shimla is quashed and set aside. The second Respondent and all other police officers incharge of the investigation of the offence alleged to have been committed by the Petitioners, or any of them, are directed not to deal with the Petitioners, or any of them, or any other person who appears to be acquainted with this facts and circumstances of the case, otherwise than in accordance with law and such of them who are entitled to the protection conferred by the proviso to Sub-section (1) of Section 160 of the Code of Criminal Procedure, will not be required to attend before the Investigating Officer at any place other than the place in which such persons reside.

Rule made absolute accordingly.

Let a copy of this judgment be forwarded to the Secretary to the Government, Home Department and to the Inspector General of Police, under the seal of the Court and signature of the Registrar, with a direction that the copies of the judgment be circulated to all police officers up to the level of District Superintendents of Police with a direction to them to further circulate the same to all police officers working under them. Let a copy of the judgment be also circulated to all the Judicial Officers in the State with a direction that the law laid down herein shall be punctually observed.