GIRISH KUMAR SHARMA vs STATE OF UTTARAKHAND AND OTHERS

Present Criminal Writ Petition has been filed by the petitioner seeking following reliefs:

 “(a) Issue a writ, order or direction in the nature of mandamus commanding the investigating agency through respondent no. 2 and 3 to further

investigate the FIR no. 553 of 2017, registered at P.S. Rudrapur, District Udham Singh Nagar and ensure that statement of victim is recorded under

Section 164 of the Cr.P.C. and only then report under Section 173 of Cr.P.C. be submitted before the court below.

(b) Issue any suitable writ, order or direction which the Hon’ble Court may deem fit and proper on the basis of the facts and circumstances of the

case.

(c) Award the cost of the petition to the petitioner.â€​

Vide order dated 18.04.2018, the Senior Superintendent of Police, Udham Singh Nagar was directed to ensure the presence of Mr. Om Prakash,

Investigation Officer of FIR no. 553 of 2017, registered by P.S. Rudrapur, District Udham Singh Nagar, before the Court. The Investigating Officer is

present in person today before the Court.Â

When the matter was listed for the first time on 28.02.2018, two weeks’ time was granted to the respondent State to file counter affidavit

explaining therein as to why the statement of the victim under Section 164 of Cr.P.C. has not been recorded. Thereafter, the writ petition was listed

before His Lordship Justice V.K. Bist on 18.04.2018. The Court vide order dated 18.04.2018, noted that despite time being granted on 28.02.2018,

no counter affidavit has been filed so far. The Court took serious note of said fact and, as a last chance, granted time upto 23.04.2018 to the learned

State counsel appearing on behalf of respondent nos. 1 to 3 for filing counter affidavit and further directed that, in case, counter affidavit / reply is not

filed within the stipulated period, the S.S.P., Udham Singh Nagar shall appear in person before this Court on the next date fixed. The matter was

fixed for 24.04.2018. In compliance of said order, short counter affidavit of Mr. Om Prakash, I.O. of the case, was filed through Mr. J.S. Virk,

A.G.A. on 23.04.2018.      Â

It is stated in the short counter affidavit that on 28.02.2018, this Court directed the State of file counter affidavit explaining therein as to why the

statement of the victim under Section 164 Cr.P.C. has not been recorded yet. The case was again come up for consideration on 18.04.2018 and the

Court directed the State to file counter affidavit by 23.04.2018. It is also stated that earlier the investigation was completed in the aforesaid matter,

but on the application of the complainant, the concerned Magistrate directed that the matter be further investigated and, accordingly, statement of the

victim under Section 164 Cr.P.C. was recorded on 20.04.2018. The copy of said statement is annexed as Annexure no. 1 to the affidavit. Lastly,

it is stated that in view of order passed by the Magistrate concerned, the matter is being investigated again and, as such, the further investigation is

pending, which will conclude at the earliest. Â

A perusal of the statement of the victim recorded under Section 164 Cr.P.C. would reveal that she was kept in illegal custody by the respondent no.

4 and his brothers Azim and Arshad and they also assaulted the victim. Victim also made a statement that she was threatened that if she will make

statement in the court against respondent no.

4, her family members will be killed. Â

After filing of counter affidavit on 23.04.2018, the matter was listed before the Court on 24.04.2018. This court took notice of the fact that

pursuant to the order dated 28.02.2018, no specific explanation regarding failure to record statement of the victim under Section 164 Cr.P.C. has been

made in the counter affidavit. This Court also noticed the fact that there was no effort at all on the part of the I.O. in getting recorded the statement

of the victim under Section 164 Cr.P.C. Statement of the victim was recorded on an application moved by father of the victim and this Court vide

order dated 24.04.2018 directed Mr. Om Prakash, I.O. of the case, to remain present on 10.05.2018 to explain as to why he has not complied with the

orders of the Court. Â

Pursuant to order dated 24.04.2018, admittedly, no explanation was submitted by the I.O. A perusal of order sheet would reveal that when the

matter was listed before His Lordship Justice V.K. Bist on 10.05.2018, Mr. Lalit Sharma, appeared for the petitioner and Mr. S.K. Chaudhary, Dy.

Advocate General appeared on behalf of the State, and after hearing the learned counsel for the parties, the Court passed the following order:

“Mr. Lalit Sharma, Advocate for the petitioner.

 Mr. S.K. Chaudhary, Deputy Advocate

General for the State of Uttarakhand.

Heard.

 In spite of the order passed by this Court on 24.02.2018, Investigating Officer is not present in the Court.

 Mr. S.K. Chaudhary, Deputy Advocate General submitted that Office has informed him that he is on the way and he will reach at 12:00 p.m. He

submits that the case be listed at 12:00 p.m.

Court cannot work according to wish of the person.

 List this case tomorrow.

The S.S.P., Udham Singh Nagar is directed to ensure the presence of the Investigating Officer by tomorrow at 10:00 a.m.â€​

Since neither any explanation was submitted by the I.O., nor he remained present as per the directions issued by the Court vide order dated

24.04.2018, His Lordship Justice V.K. Bist ensured the presence of the I.O. through S.S.P., Udham Singh Nagar for today.

From the perusal of order sheet, it would reveal that since inception Mr. S.K. Chaudhary, Dy. Advocate General for the State was appearing in this

case on behalf of respondent nos. 1 to 3. Though earlier Mr. S.K. Chaudhary, Dy. Advocate General appeared on behalf of respondent nos. 1 to 3

and the counter affidavit was filed by Mr. J.S. Virk, A.G.A. for the respondent State, but today none of them appeared on behalf of respondent nos. 1

to 3.

Since the case is listed today on top on the Board under the caption “Personal Appearanceâ€, Mr. P.S. Bohara, Asstt. Government Advocate,

appeared on behalf of the

State and apprised the Court that I.O.is present in the Court. This Court has asked the I.O. why he did not appear on the last date as per the

direction of the Court. In reply to it, Mr. Om Prakash, I.O., has submitted that yesterday he was slight late in coming to the Court and reached at

10:45 a.m. and met Mr. S.K. Chaudhary, Dy. Advocate General but he was not produced before the Court. From the perusal of order dated

10.05.2018, it would reveal that Mr. Chaudhary, Dy. Advocate General had made statement before the Court that the I.O. is on the way and has not

reached the Court upto 12:00. Considering urgency of the matter, His Lordship Justice V.K. Bist had directed the S.S.P., Udham Singh Nagar, to

ensure the presence of the I.O. on the next day fixed. Â

Considering the contradictory statement made by Mr. Chaudhary, Dy. Advocate General before His Lordship Justice V.K. Bist and the statement

made by the I.O. before this Court, this Court has asked Mr. P.S. Bohara, Asstt. Government Advocate, where is Mr. S.K. Chaudhary, Dy.

Advocate General.  While the hearing of the case is going on, Mr. S.N. Babulkar, Advocate General of the State of Uttarakhand entered in the

Court room.  Mr. G.S. Sandhu, Government Advocate and other State Law Officers are also present in the Court. Â

Mr. P.S. Bohara, A.G.A. has raised the point that Mr. S.K. Chaudhary, Dy. Advocate General is the best person to refute the statement of I.O.

as he was conducting the case on behalf of the respondent State from the very beginning and he has no information why he is not present today in the

Court. Mr. P.S. Bohara, A.G.A. would submit that he is raising the question of maintainability of the writ petition. This argument was raised in

presence of learned Advocate General. Then this court has noted the fact that Mr. S.N. Babulkar, Advocate General of State of Uttarakhand is

present in the Court and Mr. Bohara is arguing the maintainability of the writ petition, without there being any compliance made of the previous orders

of this Court. On a query raised by the Court about arguments being made regarding maintainability of the writ petition by Mr. Bohara, A.G.A.,Â

Mr. S.N. Babulkar, Advocate General for the State of Uttarakhand stood up and submitted that Mr. P.S. Bohara, A.G.A. is right in raising the issue

of maintainability of the writ petition. Learned Advocate General also voiced his arguments regarding maintainability of the writ petition. This

Court has not invited the Advocate General to argue the matter. He is present in the Court on his own along with Government Advocate and other

State Law Officers, for the reasons best known to him. Though being the highest Law Officer of the State he has every right to appear in any case

on behalf of the State, but since the arguments are going on, he may have requested the Court that being the highest Law Officer of the State he

would argue the case. But, he submitted that Mr. Bohara, A.G.A. is right in arguing the maintainability of the writ petition as the question of

maintainability can be raised at any point of time. The verbatim submission of learned Advocate General is being reproduced hereunder:Â Â Â

“I am requesting your Lordship that Mr. P.S. Bohara, A.G.A. raised purely a question of law and the question of law can be raised in a pending

petition at any time and question of maintainability goes to the root of the case then proceeding goes.â€​    Â

This Court requested him to argue the case on behalf of the State but Mr. S.N. Babulkar, Advocate General as well as Mr. G.S. Sandhu, G.A.

both submitted that considering the legal acumen of Mr. Bohara, A.G.A. he has been assigned this case to argue before this Court. Despite the

request made by the Court, Advocate General is not willing to argue the case finally on behalf of the respondent nos. 1 to 3. Rather he intervened in

the proceedings of the Court time and again.

On behalf of any party, only one lawyer is expected to argue the case. The case was being argued by Mr. P.S. Bohara, A.G.A. and in his

support Mr. S.N. Babulkar, Advocate General and Mr. G.S. Sandhu, Government Advocate have also stood up and intervened in the matter. Â

Before proceeding further in the matter, the following two questions are necessary to be answered by this Court:

i) As to whether without making the compliance of the previous orders passed by this Court, the State Law Officers have any right to raise the

question of maintainability of the writ petition? Â

ii) As to whether without there being any defence taken in the counter affidavit regarding maintainability of the writ petition, the State Law Officers

have any right to raise this plea?

Mr. S.N. Babulkar, Advocate General, Mr. G.S. Sandhu, Government Advocate and Mr. P.S. Bohara, A.G.A. would submit that the

maintainability of the writ petition can be raised at any point of time. This Court made a query from them whether they can site any law on the point

that without their being any compliance of the orders passed by the Court they have a right to agitate the maintainability aspect of the writ petition, but

the State Law Officers are unable to place any law in this regard. However, the State Law Officers are unable to quote any authority on the

subject, but it is the duty of this Court to decide the question of maintainability of the writ petition.Â

Answer to the first question:Â

When the writ petition was entertained by the Court and the I.O. was directed to submit his reply why statement of the victim under Section 164

Cr.P.C. has not been recorded and on further dates due to non-compliance of the orders passed by the Court the presence of the I.O. was secured.Â

From the very beginning, Mr. S.K. Chaudhary, Dy. Advocate General was arguing the case, however, the counter affidavit was filed by Mr. J.S.Virk,

A.G.A. The Dy. Advocate General, who was appearing from the very beginning in this case, was the best person to reply the query posed by this

Court and thereafter the State Law Officer, who filed the counter affidavit. But surprisingly, Mr. P.S. Bohara, A.G.A. has been appointed to argue

the case on behalf of the respondent State. In view of this Court, if an order has been passed by the Court while exercising its jurisdiction under

Article 226 of the Constitution of India, it is expected that the order passed by the Court should be honoured and the majesty of the Court should be

maintained. If the respondents are so sure that the writ petition is not maintainable, they have every right to challenge the veracity of the orders

passed by this Court, but at any point of time, neither the respondents have challenged the veracity of the orders passed by this Court, nor had they

agitated that this Court has got no jurisdiction to pass the order. In view of this Court, the respondents have no excuse to say that without there

being any compliance of the previous orders passed by this Court they have every right to raise the maintainability aspect of the writ petition.  Â

Thus, I am of the firm opinion that firstly the respondents have to comply with the orders passed by this Court or they may say that they are unable to

comply with the order passed by this Court being an order passed without jurisdiction and they may be granted time to approach the superior court to

challenge the order passed by this Court, but unless they put to challenge the orders passed by this Court before Hon’ble Apex Court, they have

no authority or legitimate right to say that they have right to agitate the maintainability aspect of the writ petition, without there being any compliance

of the orders passed by this Court. If these submissions of learned A.G.A. appearing on behalf of the respondents be considered as correct

proposition of law, then not even a single order passed by the Court will be complied with. It is settled proposition of law that any order passed by

the Court, after hearing the counsel for the parties, is binding on the parties unless the same is set aside by the superior court, but a party against

whom an order has been passed cannot say that it is not bound to comply with the order passed by the Court. Thus in view of above, I am of the

considered opinion, that without there being compliance of previous orders passed by this Court, the respondent nos. 1 to 3 have no legitimate right or

authority to raise the question of maintainability. Â

Answer to the second question:Â

Present writ petition has been filed seeking further investigation in FIR no. 553 of 2017, as the I.O. of the case has failed to record the statement

of the victim under Section 164 Cr.P.C. which leads to denial of fair and impartial justice to the victim and the complainant. Â

Admittedly the respondents nos. 1 to 3 are State within the definition of Article 12 of the Constitution of India and this Court has ample power to

issue directions under Article 226 of the Constitution of India to the respondents in such a case when the respondent State miserably failed to

discharge its legal obligation. Since in the present case the Investigating Officer failed to discharge his duties in conducting the investigation of the

case as per the statutory provisions of Cr.P.C. and the petitioner has approached this Court for non-compliance of the statutory provisions of the

Cr.P.C. by the Investigating Officer, this Court instead of passing any direction has simply asked the I.O., why the statement of the victim under

Section 164 Cr.P.C. has not been recorded. Right to get speedy justice in fair manner is a constitutional right guaranteed under Article 21 of the

Constitution of India. On the one hand, the respondent State failed to discharge its legal obligation as per the statutory provisions of Cr.P.C. and, on

the other hand, the State is not inclined to submit the reply before this Court. Â

Article 21 of the Constitution of India casts a duty on the State for protection of life and personal liberty of a person. Article 21 of the

Constitution of India is excerpted here-in-below for reference:

“Protection of life and personal liberty. â€" No person shall be deprived of his life or personal liberty except according to procedure established by

law.â€​

The Hon’ble Apex Court has interpreted the words ‘protection of life and personal liberty’ in the case of Mrs. Maneka Gandhi vs

Union of India and another, (1978) 1 SCC 248. Paragraphs no. 4, 5, 6 and 7 of aforesaid judgment are relevant. The same are reproduced

herein-below for reference:

The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of 'personal liberty' within the

meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law. There

is no procedure prescribed by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from

going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch

as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the

Central Government in impounding the passport of the petitioner is in violation of Article 21. This contention of the petitioner raises a question as to the

true interpretation of Article 21. What is the nature and extent of the protection afforded by this article? What is the meaning of 'personal liberty' :

does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law?

What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure,

howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain

requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.

These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in 'The Indian Constitution-

Cornerstone of a Nation', ""they were included in the constitution in the hope and expectation that one day the tree of the true liberty would bloom in

India"". They were indelibly written in the subconscious memory of the race which fought for well nigh thirty years for securing freedom from British

rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic

values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create

conditions in which every human being can develop his personality to the fullest extent. They weave a ""pattern of guarantees on the basic-structure of

human rights"" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the

enunciation of these rights that the respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling

prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces

from 'alienating' the individual from his creative impulses. These rights are wide ranging and comprehensive and they fall under seven heads, namely,

right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to

constitutional remedies. Articles 14 to 18 occur under the heading 'Right to Equality', and of them, by far the most important is Article 14 which

confers a fundamental right by injuncting the State no to ""deny to any person equality before the law or the equal protection of the laws within the

territory of India"". Articles 19 to 22, which fine place under the heading ""Right to freedom"" provide for different aspects of freedom. Clause (1) of

Article 19 enshrines what may be described as the seven lamps of freedom. It provides that all citizens shall have the right- (a) to freedom of speech

and expression; (b) to assemble peaceably and without arms; (c) to forms associations or unions; (d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property and (g) to practice any profession or to carry on

any occupation, trade or business. But there freedoms are not and cannot be absolute, and unrestricted freedom of one may be destructive of the

freedom of another and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses (2) to (6) of Article 19 permit

reasonable restrictions to be imposed on the exercise of the fundamental rights guaranteed under clause (1) of the article. Article 20 need not detain

us as that is not material for the determination of the controversy between the parties. Then comes Article 21 which provides :

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22 confers protection against arrest and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other

fundamental rights are not relevant to the present discussion and we need not refer to them.

It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to

personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by

law. The first question that arises for consideration on the language of Article 21 is: what is the meaning and content of the words 'personal liberty' as

used in this article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras (1950 SCR 88 :

AIR 1950 SC 27 : 51 Cri LJ 1383) and the observations made by Patanjali Sastri, J., Mukherjea, J., and S. R. Das, J., seemed to place a narrow

interpretation on the words 'personal liberty' so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But

there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words 'personal

liberty' as the inter-relation between Article 19 and 21. It was in Kharak Singh v. State of U. P. ((1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri

LJ 329) that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time

before this Court. The majority of the Judges took the view ""that ' personal liberty' is used in the article as a compendious term to include within itself

all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several clauses of Article 19(1). In other

words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the

residue."" The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: ""No doubt

the expression 'personal liberty' is a comprehensive one and right to move freely is an attribute of personal liberty. It is said that the freedom to move

freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 exclude that attribute. In our view, this is not a

correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The

fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under

Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test

laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned."" There can be no doubt that in view of the decision of this

Court in R. C. Cooper v. Union of India ((1971) 1 SCR 512 : (1970) 2 SCC 298) the minority view must the regarded as correct and the majority view

must be help to have been overruled. We shall have occasion to analyze and discuss the decision in R. C. Cooper's case a little later when we deal

with the arguments based on infraction of Article 19(1)(a) and 19(1)(g), but it is sufficient to state for the present that according to this decision, which

was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has

different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the

challenge of another guaranteed freedom. The decision in A. K. Gopalan's case gave rise to the theory that the freedoms under Articles 19,21,22 and

31 are exclusive-each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R. C. Cooper's case where

Shah, J., speaking on behalf of the majority pointed out that ""Part III of the Constitution weaves a pattern of guarantees on the texture of basic human

rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights."" The conclusion was

summarised in these terms : ""In our judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution exclusively deal with

specific matterscannot be accepted as correct"". It was held in R. C. Cooper's case-and that is clear from the judgment of Shah, J., because Shah, J.,

in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjea, J.,

and S. R. Das, J., in A. K. Gopalan's case- that even where a person is detained in accordance with the procedure prescribed by law, as mandated by

Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention

has to satisfy the test of the applicable freedoms under Article 19, clause (1). This would clearly show that Article 19(1) and 21 are not mutually

exclusive, for, if they were would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the

challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of 'personal liberty'

in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 22 would not require to be tested on the touchstone

of clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal

((1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425) that such a law would have to satisfy the requirement inter alia of Article 19(1), clause

(d) and in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198, which was a decision given by a Bench of five Judges, this Court

considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that

Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain

natural meaning to the expression 'personal liberty' as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes

of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the

Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than

attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental

rights has been set by this Court in R. C. Cooper's case and our approach in the interpretation of the fundamental rights must now be in tune with this

wave-length. We may point out even at the costof repetition that this Court has said in so many terms in R. C. Cooper's case that each freedom has

different dimension and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the

expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression

'personal liberty' in Article 21 of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of

them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court

in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently

no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there as

no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the

petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it

secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means

'enacted law' or 'State law' (vide A. K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the

State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason,

in order to comply with the requirement of Article 21, that Parliament enacted the Passports Art, 1967 for regulating the right to go abroad. It is clear

from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or

impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of

some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair

or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him

to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan's

case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed

themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazl Ali, J., who was in a

minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Wills' book on Constitutional Law,

namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say

that ""certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by

law"". Mahajan, J., also observed that Article 21 requires that ""there should be some form of proceeding before a person can be condemned either in

respect of his life or his liberty"" and ""negatives the idea of fantastic, arbitrary and oppressive forms of proceedings"". But apart altogether from these

observations in A. K. Gopalan's case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the

procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.

We may at this stage consider the interrelation between Article 21 on the one hand and Article 14 and 19 on the other. We have already pointed out

that the view taken by the majority in A. K. Gopalan's case was that so long as a law of preventive detention satisfies the requirements of Article 22,

it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that

certain articles in the constitution exclusively deal with specific matters"" and where the requirements of an article dealing with the particular matter in

question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right

conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper's case and it was over-ruled by a majority of the

full Court, only Ray, J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22,

it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R. C. Cooper's case was

explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. State of West

Bengal (supra). The learned Judge there said (SCC p. 879):

In Gopalan's case (supra) the majority court has held that Article 22 was a self-contained Code and therefore law of preventive detention did not have

to satisfy the requirements of Articles 19, 14 and 21. The view of Fazl Ali, J., on the other hand, was that preventive detention was a direct breach of

the right under Article 19(1)(d) and that a law providing for preventing detention had to be subject to such judicial review as is obtained under clause

(5) of that article. In R. C. Cooper v. Union of India (supra) the aforesaid premise of the majority in Gopalan's case (supra) was disapproved and

therefore it no longer holds the field. Though Cooper's case (supra) dealt with the inter-relationship of Article 19 and Article 31, the basic approach to

construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of the majority

in Gopalan's case to be incorrect.

Subsequently, in Haradhan Saha v. State of West Bengal (supra) also, a Bench of five Judges of this Court, after referring to the decisions in A. K.

Gopalan's case and R. C. Cooper's case, agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to be

tested in regard to its reasonableness with reference to Article 19. That decision accepted and applied the ratio in R. C. Cooper's case and Shambhu

Nath Sarkar's case and proceeded to consider the challenge of Article 19, to the constitutional validity of the Maintenance of Internal Security Act,

1971, and held that the Act did not violate any of the constitutional guarantees enshrined in Article 19. The same view was affirmed once again by a

Bench of four judges of this Court in Khudiram Das v. The State of West Bengal ((1975) 2 SCR 832 : (1975) 2 SCC 81 : 1975 SCC (Cri) 435).

Interestingly, even prior to these decisions, as, pointed out by Dr. Rajeev Dhavan, in his book, ""The Supreme Court of India"" at page 235, reference

was made by this Court in Mohd. Sabir v. State of Jammu and Kashmir ((1972) 4 SCC 558 : 1971 Cr LJ 1271) to Article 19(2) to justify preventive

detention. The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law

prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by

Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.

This proposition can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now,

if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of

one of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested

with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and

categorical statement made by Mukherjea, J., in A. K. Gopalan's case that Article 21 ""presupposes that the law is a valid and binding law under the

provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the

fundamental rights which the Constitution provides for"", including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely,

the State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 and Kathi Raning Rawat v. The State of Saurashtra 1952 Cri LJ 805, where there

was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under

the ordinary procedure in the Criminal Procedure Code. The special law in each of these two cases undoubtedly prescribed a procedure for trial of the

specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of

Article 21, but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14 and in one case, namely,

Kathi Raning Rawat's case, the validity was upheld and in the other, namely, Anwar Ali Sarkar's case it was struck down. It was held in both these

cases that the procedure established by the special law must not be violative of the equality clause. That procedure must answer the requirements of

Article 14.

Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle

enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the

foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be

made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many

aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the

majority in E. P. Royappa v. State of Tamil Nadu ((1974) 2 SCR 348 : (1974) 4 SCC 3 : 1974 SCC (L & S) 165) namely, that ""from a positivistic point

of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in republic, while the

other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and

constitutional law and is therefore violative of Article 14"". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of

treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades

Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in

conformity with Article 14. It must be ""right and just and fair"" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and

the requirement of Article 21 would not be satisfied.â€​

In Mrs. Maneka Gandhi’s case (supra) the Hon’ble Apex Court while elaborating the scope of Article 21 of the Constitution of India held

that Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. Fundamental rights conferred by Part III are not

distinct and mutually exclusive. A law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of

Article 21 has to stand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given

situated.    Â

In the case of Hussainara Khatoon and others (IV) vs Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98, the Hon’ble Apex Court has

held that speedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed by Article 21. Â

Had the orders passed by this Court have been complied with in letter and spirit, the State Law Officers must not have raised the issue of

maintainability of writ petition without there being any defence taken in the counter affidavit to this effect. The maintainability aspect is being raised

only to divert the attention of this Court from the issue involved. In view of this Court, the State Law Officers have no authority to divert the issue

deliberately at this juncture. Breach of fundamental right, right of speedy justice and fair and impartial justice is enshrined under Article 21 of the

Constitution of India. Â

When the matter was not properly investigated in a case of allegation of rape, it is the duty of the prosecution, especially the I.O., to produce the

victim before the Magistrate concerned, so that independent statement of the victim could be recorded, without interference of the persons from

whose custody the victim was recovered or without any coercion. The Court can always monitor the progress of ongoing investigation for just

investigation of the matter, so the investigation may be conducted in a proper manner. When it comes to the notice of the Court that fair

investigation is not being done, the court simply directed the I.O. to explain as to why the statement of the victim under Section 164 Cr.P.C. has not

been recorded. Despite this, when the compliance of the Court’s orders are not being made, the S.S.P., Udham Singh Nagar was directed to

ensure the presence of the I.O. and as a result of which, the I.O. is present in person before this Court today. Thus, I am of the firm opinion that

raising the maintainability aspect of the writ petition at this stage, is a deliberate attempt to divert the attention of this Court. Therefore, the State

Law Officers have no right to agitate the issue regarding the maintainability of the writ petition at this stage without being taken a plea in this regard in

the counter affidavit. In the considered opinion of this Court, the writ petition for the relief sought is maintainable, more particularly, when there are

allegations against the I.O. that he is hand in gloves with the accused person. The allegations made in the writ petition have not been denied

yet.        Â

I am surprised to see that why the State Law Officers, viz., Advocate General, Government Advocate and A.G.A. are taking such a serious case

to be opposed by them without there being any valid ground available to them.  I am also surprised to see that while the case was being argued by

Mr. P.S. Bohara, A.G.A., learned Advocate General without taking arguments in his hands and without requesting the Court that, considering the

gravity of the matter he is willing to argue the matter, intervened in the matter and submitted that the question of maintainability of the writ petition can

be raised at any point of time as it goes to the root of the case. If the Advocate General was of the opinion that this case is of such an importance,

then he should have requested this Court that he himself will appear to argue the case. But, learned Advocate General intervened in the matter

during the course of arguments and submitted that what Mr. P.S. Bohara, A.G.A. is arguing is correct proposition of law. The Court is hearing the

arguments advanced by Mr. Bohara, A.G.A. but it is not the way to argue the case by suddenly intervening in the matter without being asking. This

Court has request learned Advocate General that he may argue the case, but he submitted that Mr. P.S. Bohara, A.G.A. is competent to argue the

case and he is not willing to argue the case himself on behalf of State. Once a case was assigned to Mr. P.S. Bohara, A.G.A. considering his legal

acumen to argue the case, learned Advocate General should not intervene in the matter and if he again thinks that he should address the court, then he

should have advance his submissions. This Court has requested Mr. S.N. Babulkar, Advocate General that being the highest Law Officer of the

State he may argue the case but he submits that Mr. Bohara, is well conversant with the matter and may carry on his submissions. Â

Such practice of intervening in the arguments is not a happy practice. The intervention of Mr. S.N. Babulkar, Advocate General and Mr. G.S.

Sandhu, Government Advocate in support of the arguments advanced by Mr. Bohara, A.G.A. amounts to causing hindrance in the ongoing

proceedings of the Court and is a deliberate attempt to divert the issue and interference in the dispensation of justice, which amounts to contempt of

the Court. As learned Advocate General, is present in this Court and is not ready and willing to argue this case, it appears to this Court that he has

come to this Court to disrupt the court proceedings. This Court is also surprised to see that Mr. Chaudhary, Dy. Advocate General, who was

appearing in this case since beginning, has been withdrawn and Mr. P.S. Bohara, A.G.A. has been given the task to argue the case. Apart from

this, learned Advocate General and Government Advocate are also present in the court room. Why are they present in the Court room, when they

don’t have to argue any other case? The presence of Mr. S.N. Babulkar, Advocate General is definitely for some hidden reason. Â

In my view, it is a clear cut deliberate and willful contempt of the Court being committed by learned Advocate General and Government

Advocate. The act of Advocate General and the Government Advocate is contemptuous, and this Court has warned them that it will not permit them

to lead arguments in such a way. They may appoint any Law Officer, on whom they have full confidence to argue the case before the Court, but

this Court cannot permit large number of Law Officers to argue a particular case in piecemeal of rival submissions. Such practice of State Law

Officers is deprecated. However, this Court is not initiating any contempt proceedings against them and has simply warned them not to repeat the

same mistake in future.    Â

A lawyer appearing in the Court is supposed to assist the Court fairly. A lawyer is engaged by a party, either on private side or on Government

side, it is expected from a lawyer that he will pursue the case of his client keeping in mind that he is an officer of the Court and is supposed to assist

the Court in helping it to take the case to a logical conclusion and will not suppress anything from the Court. It is a routine practice in this High

Court that the cases are not being allotted to a particular State Law Officer and, in most of the cases, on every date a new State Law Officer appears

from the side of the State Government to argue the case. If a case is allotted to a particular State Law Officer, he can be held responsible for his

failure to conduct the case properly or, vice versa, his working may be appreciated, but the practice of changing the State Law Officer on every date

in most of the cases cannot be said to be a good practice and such practice of changing the brief of the case in different hands of State Law Officers

definitely weakens the case of the State Government, as a new Law Officer may not be aware about the previous orders passed by the Court and the

conversation with the Court by the previous State Law Officer.   Â

Mr. Om Prakash, I.O. of the case, would submit that he has taken over the investigation of the case since 04.04.2018. He would further submit

that prior to him Mr. Lal Singh Bora was the I.O. of the case, who after completion of investigation, submitted Final Report in the matter. Thereafter,

on an application filed by the father of the victim before the S.S.P., Udham Singh Nagar, he was directed by his Senior Officials to record the

statement of the victim before the Magistrate and as such the statement of the victim was recorded by the Magistrate concerned. Â

He would further submit that pursuant to the order dated 28.02.2018 and 24.04.2018, he could not submit his explanation before this Court and

when his presence was ensured by order dated 24.04.2018, he was on his way to attend the Court on 10.05.2018, but due to unavoidable

circumstances beyond his control he could not appear before the Court in time on 10.05.2018 and could reach the High Court only at 10:45 a.m. and

met Mr. S.K. Chaudhary, Dy. Advocate General.             Â

A perusal of the order dated 10.05.2018 would reveal that Mr. S.K. Chaudhary, Dy. Advocate General made a statement in the Court that the

I.O. could reach the Court by 12:00 p.m. as he is on his way, whereas the I.O. himself told the Court that he reached the Court at 10:45 a.m. It

appears to this Court that at every stage the State Law Officers are trying to make false statement. Making false statement or misleading

statements before the Court in an interference in administration of justice and amounts to deliberate and willful attempt of contempt of Court.

Mr. Om Prakash, I.O. of the case, has not complied with the order passed by this Court vide order dated 28.02.2018. He did not appear before

the Court pursuant to the Court’s order dated 18.04.2018 and 24.04.2018 and today he made a statement before this Court. The Court cannot

lose sight that Mr. S.K. Chaudhary, Dy. Advocate General, who appeared earlier in the case, is replaced by an A.G.A. so that the issue may be

diverted. From the statement made above by him before this Court as well as by defying the orders passed by this Court.

Since before this Court two contradictory statements of Mr. Om Praksh, I.O. and Mr. S.K. Chaudhary, Dy. Advocate General are coming

forward thus, it is directed that Mr. S.K. Chaudhry, Dy. Advocate General shall appear before this Court on 30.05.2018. He shall file an affidavit

why he made a statement before this Court on 10.05.2018, at 12:00 p.m., that the I.O. could not reach the Court, and this court shall verify the

truthfulness of the statements made by the I.O. Om Prakash as well as by Mr. Chaudhary, Dy. Advocate General and, in case, statement of anyone

is found false, shall take appropriate action.

Since Mr. Om Prakash (I.O.) failed to appear before this Court despite specific directions of the Court, he may explain why he may not be held

guilty for non compliance of the court’s order in exercise of the powers contained under Section 2(b) of the Contempt of Courts Act, 1971 read

with Article 215 of the Constitution of India. Considering the false statement made by Mr. Om Prakash, Sub Inspector, P.S. Rudrapur, District

Udham Singh Nagar this Court held him guilty for the offence punishable under Section 12 of the Contempt of Courts Act, 1971, and take suo moto

action against him. This Court has held S.I. Om Prakash guilty for committing willful disobedience of the orders passed by this Court and making

false statement before the Court today. He has been asked as to whether he would like to file objections to the order passed against him stating

therein as to why he may not be punished for committing said offences. The I.O. submitted that he may be pardoned. Since, he is held guilty he is

being granted two weeks time to file an appropriate application / objection, if he wishes to do so. Mr. Om Prakash, I.O. of the case, shall remain

present before this Court on 30.05.2018.    Â

List the matter on 30.05.2018. Mr. P.S. Bohara, Asstt. Government Advocate shall inform Mr. S.K. Chaudhary, Dy. Advocate General about

the order passed by this Court.

Copy of the order be supplied to Mr. Om Prakash, I.O. of the case, by 14.05.2018.