E. Venkateswarulu vs Y. Suryanarayana, C.I. of Police

V. Raja Gopal Reddy, J.—In Writ Petition No. 1140/97 filed by the petitioner seeking a direction to respondents 1 to 3 not to interfere with the eviction of the godown of the petitioner at Visakhapatnam, being subject matter of a civil suit, this Court passed an order dt. 25-1-97, while issuing notice before admission, as follows:

"The respondents are directed not to interfere with the civil dispute relating to the petitioners and not harass for whatever reasons."

It is now stated by the petitioner in this Contempt Case that on the same date the consignments in the godown were thrown out and the employees were not permitted to enter into the premises. But after seeing the order of this Court, which was produced by the petitioner, the respondent permitted the petitioner and the employees of the petitioner-Company, to re-occupy the building. However, it was alleged, on 22-3-97 (sic. 23-2-97) at about 12 noon five constables came and asked the petitioner and other employees of the Company to accompany them to the Police Station immediately. One Police Constable by name Baba informed the petitioner that they were asked to come immediately. The petitioner contacted his Counsel at Visakhapatnam, Sri Prithvi Raj, and told him that the petitioner was asked to come to the Police Station. His Counsel sent his junior, colleague Mr. Venkatesh to go along with them to the Police Station. The petitioner and Mr. Venkatesh, Advocate and Mr. Dhananjay Rao, Clerk of Transport Company and Mr. Trilochen, Cashier, went to the P.S. by 12.30 p.m. They were asked to wait in the P.S. for the arrival of the respondent. The respondent came to the P.S. around 1.00 p.m. The respondent informed Mr. Venkatesh, Advocate, that the petitioner was required in some other case and his presence was not necessary at that time, but he could come in the evening along with his senior. After the Advocate left the P.S., the respondent abused the petitioner and other employees in filthy language. The respondent threatened the petitioner with dire consequences if the godown is not vacated immediately. The respondent asked the Constable to keep them in the Cell, so that they would know the consequences of not vacating the premises. Thereafter the respondent left the P.S. at about 4 p.m. When his Counsel came at 4 p.m., the petitioner informed him about the ill-treatment suffered by them. The Counsel immediately issued telegrams at about 5.20 p.m. to the Hon''ble the Chief Justice, Director General of Police, Hon. Chief Minister, Hon. Home Minister and the District Collector, Visakhapatnam, bringing to their notice about the illegal acts of the respondent. The petitioner and other employees were kept in the Cell till late in the night. They were released around 10 p.m. when the President and the Secretary of Visakhapatnam Goods Transporters Association came to the Police Station and requested the respondent to release the petitioner and other employees, after taking signatures from them. The petitioner filed the instant Contempt Case alleging that the respondent deliberately violated the directions of this Court in the above writ petition and he was liable for punishment under Contempt of Courts Act.

In response to the notice issued, the respondent appeared before the Court on 28-4-97 and requested time to engage a Counsel and to file counter-affidavit. Counter-affidavit was filed on 13-6-97. Thereafter, the petitioner filed third-party affidavits and the respondent filed additional counter-affidavit.

In the counter-affidavit filed by the respondent, while denying the material allegations made in the affidavit filed by the petitioner, it was stated that in continuation of investigation in Cr. No. 6/97 registered against the petitioner and his co-employees, on 23-2-97 they were called to II Town P.S. and accordingly the petitioner and 3 others came to the P.S. around 1 p.m. and as the respondent was engaged in bandobust duty, the petitioner and 3 others and their Counsel Mr. Venkatesh were asked to come in the evening along with sureties. The averments that he abused them in filthy language were specifically denied. It was also denied that the respondent threatened them that dire consequences would follow, if the godown was not vacated forthwith and that he directed the constables to keep the petitioners in the cell was also denied. He also denied the allegation that he left the Police Station around 4 p.m. It was also denied that the petitioner''s senior Counsel Sri Prithvi Raj waited upto 4 p.m. and he was informed about the ill-treatment meted out to the petitioner. He denied the allegation that the petitioner and his employees were kept in the cell. It was further stated that on 23-2-97 at about 8 p.m. the petitioner and others came to the P.S. along with the sureties and the petitioner and his employees were formally arrested and released on bail on furnishing the sureties, at about 9.40 p.m. Other allegations with regard to violation of the order of this Court are also specifically denied. It was further stated that upon receipt of a complaint by the lessor Mr. V. Vidyasagar and another complaint by the petitioner against the said Vidyasagar regarding damage of the godown, Cr. No. 6/97 Under Sections 427, 506 r/w 34 IPC and Cr. No. 24/97 Under Sections 448, 427 IPC were registered respectively and the Addl.S.I. of Police was investigating into both the crimes. In pursuance of the investigation the petitioner and other employees were called to the P.S. on the above date for the purpose of recording the statements to prepare charge-sheet, as the Investigating Officer went to the scene of offence to prepare the necessary sketch and mediators'' report. The petitioner was not dispossessed from the godown by the police or by anybody and he has been carrying on the business there.

The Advocate, who accompanied the petitioner to the Police Station, Mr. M. Venkateswara Rao @ Venkatesh, filed an affidavit stating that he was a practising Advocate and Member of Visakhapatnam Bar Association. He was attached to Sri J. Prudhvi Raj, Advocate, Visakhapatnam. The petitioner happened to be his client in O.S. No. 872/96 on the file of the III Addl. District Munsif, Visakhapatnam, which was filed with regard to dispute pertaining to a godown. On receipt of a telephonic call on 23-2-97, his senior advocate asked him to go to II Town P.S. along with the petitioner and two other employees of Savani Transport Ltd. His senior told him that already the employees of that Transport Co., were taken to the police station thrice and asked him to verify why they were taken to P.S. and ascertain whether any criminal case has been registered. It is stated that when they went to the P.S., the respondent and the S.I. of Police were not present and one of the constables informed him that the respondent would come within one hour. Accordingly the respondent came at about 1.30 p.m. By the time he came, the deponent was sitting in the chair opposite to the respondent''s chair and the employees were sitting on the bench. The respondent, upon seeing the petitioner and others, called the constables and directed to keep them in the cell. The respondent scolded them in unparliamentary language. Thereafter, the constables have taken the petitioner and others to another room. Then he informed the respondent about his identity. The respondent showed him a copy of half-filled FIR and asked him to inform his senior Counsel to contact him. His senior Counsel went to the P.S. at about 4 p.m. As the respondent was not present, he returned and he asked the deponent to go to P.S. again. When he went to the P.S. at about 5 p.m. the petitioner and his employees were in the cell. Immediately he telephoned to his senior and informed the same. Thereupon his senior asked him to issue telegrams to the Hon''ble the Chief justice, Hon. Chief Minister, The Director General of Police, The Commissioner of Police, etc. Accordingly, he issued telegrams at about 5.21 p.m. The petitioners and others were not even permitted to go to take their food.

The Proprietor of New Vijayalakshmi Transport Co., Mr. B. Satyanarayana, also filed an affidavit stating that at about 6.30 p.m., on 23-2-97 one Mr. S.V. Raju, who was working as Asst. Branch Manager in Savani Transport Co., came to his place and informed him that the petitioner and others wore taken to the Police Station. Immediately he informed the same to their Association President Mr. M.S. Madan Kumar, and all of them went to the P.S. When they found the petitioner and others in the Cell, they requested the respondent to release them. After making them to wait for 2 hours, the petitioner and others were released at 9.30 p.m. They have subscribed their signatures on white papers.

Mr. M.S. Madan Kumar, Proprietor of Madan Cargo Carriers and the President of Visakha Goods Transport Association, also filed an affidavit in support of the averments made in the affidavit filed by Mr. B. Satyanarayana.

Thereupon, the respondent filed an additional counter-affidavit denying the alleged issue of telegrams by the Counsel for the petitioner on 23-2-97. It was stated that the allegations made in the third-party affidavits were untrue and that he never subjected the petitioner and others to any kind of harassment. It was stated that the petitioner and others were in the P.S. until he returned. But they were free to go, as he did not effect their formal arrest. The respondent however tendered an unconditional apology, if it was found that he committed a mistake.

It was vehemently contended by the learned Counsel for the petitioner that the petitioner had to file the writ petition in view of the harassment meted out to the petitioner and his employees at the hands of the respondent and obtained the order from this Court directing the respondent not to harass the petitioner. In spite of such specific direction given by this Court, the respondent had deliberately violated the same and unlawfully detained the petitioner and others from 1 p.m. till 9.30 p.m. in the night, keeping them in the cell. The 3rd party affidavits, particularly the affidavit filed by Mr. Venkatesh, Advocate, practising in the Bar, who admittedly accompanied the petitioner to the P.S. and was a witness to the custody for over nine hours, would establish the illegal detention and harassment of the petitioner at the hands of the respondent.

Mr. Sadasiva Reddy, learned Counsel appearing for the respondent, refuted the contentions and urged that the respondent sent for the petitioner and others only in the course of investigation in Cr. No. 6/97 and they were released on bail immediately after they were formally arrested. Thus, there was no illegal detention of the petitioner and others in the P.S. and hence the respondent cannot be held guilty of any violation of the order of this Court.

The petitioner filed the above writ petition complaining harassment by the respondent alleging that the respondent threatened him that if the godown was not vacated, dire consequences would follow. When the writ petition came up for admission the learned Government Pleader for Home has taken notice and sought time for obtaining instructions. Posting the writ petition for admission after two weeks, it was directed by this Court that the respondent herein and others shall not interfere with the civil dispute relating to the petitioner and not to harass him, for whatever the reason. The petitioner filed the Contempt Case alleging that the respondent has harassed him in spite of direction of this Court, thus committing Contempt of Court.

The case of the petitioner is that on 23-2-97 at about 12 noon the petitioner and other employees were summoned to the P.S. by the respondent, where they were put into a cell, subjected to illegal custody and harassment and they were released by the respondent at 9.30 p.m., only after the President and Secretary of their Association came and requested the respondent to release the petitioner and other employees. The case of the petitioner gets support from the evidence of Mr. Venkatesh, petitioner''s Advocate, who accompanied the petitioner and others to the P.S. The respondent admitted in the counter-affidavit that the petitioner and others came to the P.S. at about 1 p.m. But it was stated by him that as he had to attend bondobust duty in connection with a procession organised by CPM Party, he sent them away to come again in the evening with sureties, but they returned only at 8 p.m., when they were formally arrested and released on bail at about 9.30 p.m. This the fact of petitioner''s going to the P.S. at the instance of the respondent at about 1 p.m., is not in dispute, nor their release at about 9.30 p.m. The only question to be decided is whether the custody of the petitioner and others in the police station from 1 p.m. to 9.30 p.m. amounts to illegal custody or whether it is occasioned in the course of investigation in the pending Cr. No. 6/97.

The version of the respondent that he went away on bandobust duty after the petitioner was summoned, appears to be far from truth. Before summoning the petitioner to the P.S., the respondent must be having information with regard to his bandobust duty. Having known about the bandobust duty, he ought not to have called the petitioner to the P.S. at about 1 p.m. He could have called the petitioner after his bandobust duty was over. Admittedly the Asst S.I. of Police was the Investigating Officer in the case. He was the concerned police officer to record the statement of petitioner and others or to effect their arrest in the case. Even if the respondent had to attend the bandobust duty, the Investigating Officer could have made the arrest and release them on bail and sent them away within a short time. In fact it was the duty of the investigating officer to arrest the petitioner. No good reason is given by the respondent to take up the investigation when the Investigating Officer was very much present in the town and investigating into the case. It is not a grave offence for the C.I. of Police to take up investigation from the A.S.I. of Police. It is specifically stated in the counter-affidavit that the A.S.I. was the investigating officer and he was investigating into the case and the petitioner and others were called for the purpose of recording the statements to prepare charge-sheet.

The affidavit filed by Mr. Venkatesh the Counsel who accompanied the petitioner to the Police Station, assumes crucial importance in this case. He stated categorically that the respondent scolded the petitioner and others and abused them in filthy language and that the petitioner and others were in custody till they were released at 9.30 p.m., at the request of the President and Secretary of their Association and they were put in the cell during their custody and they were not even allowed to take their food. It is stated that as per his Senior''s instructions, he sent telegrams to this Court and others. The petitioner filed copies of telegrams issued at the Central Telegraphic Office, Visakhapatnam, showing the date and time as 23-2-97 17.21 Hrs., and the amount paid for the telegrams is Rs.266/-, given by Sri J. Prithvi Raj, Advocate, stating that the respondent was harassing his clients without heeding to the orders of this Court and requesting the Hon''ble the Chief Justice to take necessary action against the respondent immediately. Mr. Venkatesh is a respectable member of the Bar and his affidavit has to be accepted.

In view of the above material it has to be held that the petitioner and others were detained in the police station from 1 p.m. to 9.30 p.m., on the pretext of formal arrest in Cr. No. 6/97 Under Sections 427, 506 r/w 34 IPC, pending investigation.

This detention has to be viewed in the context of the order passed by this Court directing the respondent not to interfere in the civil dispute and not to harass the petitioner. When such a mandatory direction was issued by this Court, the brazen attitude of the respondent putting the petitioner in a cell in the police station for several hours on the pretext of his arrest, can be nothing but contemptuous. The respondent appears to be under the impression that the petitioner can be lawfully detained for 24 hours in the police station, during the course of investigation of a crime. The law does not permit him to do so. That may be lawful after a person is arrested. In the instant case the respondent detained the petitioner from 1 p.m. to 9.30 p.m., without effecting his arrest. He was arrested only at 9.30 p.m., and was released on bail. Section 57 of the Code of Criminal Procedure mandates production of the person arrested before the Magistrate within a period of 24 hours of such arrest. That should not be construed as a right given to the Police Officer to keep a person in custody in the Police Station for 24 hours prior to his arrest. That amounts to unauthorised detention as the same is not sanctioned by any provision of law. If the Police violates the procedure for arrest and detention, even during investigation of crime, it amounts to breach of personal liberty, violative of Articles 21 and 22 of the Constitution. Dealing with this aspect, a Bench of this Court, to which I am a party, in W.P. No. 16770/97, dated 1-10-97, observed:

"The word ''personal liberty'' is of the widest amplitude covering variety of rights. Its deprivation shall be only in accordance with the procedure established by law i.e., the procedure prescribed in the Code of Criminal Procedure and other concerned enactments, conformable to the mandate of the Constitution. The Investigating Officer must be alive to the mandate of Article 21 of the Constitution of India and he has no right to trample upon the liberty of a person arbitrarily by virtue of the Unfettered power of investigation. The obligation to follow the procedure is an assurance against assault on personal liberty. The Police Officer under the guise of investigation to control the crime, as the same is his duty to maintain rule of law for good of society, has no right to exceed the limits prescribed by the procedural laws and deprive the personal liberty of an individual."

Thus, the action of the respondent in summoning to the police station and keeping the petitioner from morning to evening in the P.S., is illegal, notwithstanding the detention purported to have been made, in the course of investigation.

Since the respondent has resorted to illegal custody amounting to harassment of the petitioner, in violation of the mandatory direction issued by this Court ''not to harass the petitioner'', it has to be held that the respondent has committed contempt of Court. He is, therefore, guilty of Contempt of Courts Act for violating the order of this Court and is liable for punishment.

The respondent has not tendered any apology in the counter-affidavit filed by him. Only in the additional counter-affidavit filed subsequently, he made a pretext of apology. There is no trace of repentance on his part in tendering the apology. In the circumstances, I am not prepared to accept the same.

The respondent is, therefore, imposed a fine of Rs. 750/- (Rupees seven hundred and fifty only), under Sub-section (1) of Section 12 of Contempt of Courts Act, 1971, in default to undergo Simple Imprisonment for fifteen days.

The Contempt Case is accordingly allowed.