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Detaining or Summoning a Person even though No Crime is Registered Against him is Illegal: Supreme Court
The Supreme Court observed that summoning and detaining a person without there being any crime registered against him would be violative of basic principles.
The directions issued in Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, would be applicable even if no crime was registered, the bench observed.
In this case, a man approached the Andhra Pradesh High Court seeking a direction not to arrest him without giving due notice under Section 41A of Code of Criminal Procedure. His wife had filed a complaint alleging offences under Section 498A of the Indian Penal Code. The single Judge thus directed the police to strictly follow the guidelines laid down by the Supreme Court in Arnesh Kumar Vs. State of Bihar.
Later, he filed a Contempt Case alleging that in spite of the order passed by the High Court, he was forcibly taken away by the police officer to Akividu police station and detained him there.
The single bench took note of the enquiry report filed bu Metropolitan Sessions Judge in this matter which stated that the petitioner was not only summoned to Akividu Police Station in the name of counseling but was also detained. The bench thus held that the police officer is guilty of contempt of court. He was sentenced to suffer three months imprisonment.
Setting aside this order, the Division bench observed that since no crime was registered, the directions issued in Arnesh Kumar v. State of Bihar would not come into play. "But in the instant case, no crime was registered till date. When there is no crime, the question of arresting the writ petitioners would not arise.", the Division bench observed.
The Apex Court bench, taking note of the enquiry report, observed that there was clear violation of the directions issued by this Court not only in Arnesh Kumar but also in the case in D.K. Basu v. State of West Bengal
"The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this Court. As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles", the court observed.
Restoring the single bench order, the Court modified the substantive sentence of three months to 15 days
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1003 OF 2021
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 10427/2019)
M.A KHALIQ & ORS. Appellant(s)
ASHOK KUMAR & ANR. Respondent(s)
O R D E R
This appeal challenges the judgment and order dated 18-07-2019
passed by the Division Bench of the High Court of Andhra Pradesh at
Amravati in Contempt Appeal No. 45/2018 by which the order passed by the
Single Judge in Contempt Case No.1907/2016 was set aside and the appeal
preferred by respondent No.1 was allowed.
Taking cognizance of the assertions and allegations made in Contempt
Case No.1907 of 2016, the Single Judge of the High Court vide order dated
09.12.2016 had passed following directions:
“The issue raised in this Contempt Case is whether in spite of an
order dt. 19.08.2016 passed by this Court in W.P. No. 27778 of 2016,
the 1st petitioner was forcibly taken away by the 2nd respondent
herein at 10.30 pm on 29.08.2016. While the petitioners allege that it
is the 2nd respondent who was responsible for violating the order
passed by this Court, in the counter-affidavit filed by the 2nd
respondent, this allegation is denied.
Therefore, the Metropolitan Sessions Judge, City Criminal
Court, Nampally, Hyderabad shall inquire into the matter after
recording the evidence adduced on behalf of petitioners as well as
nd respondent within a period of eight (08) weeks from today and
submit a report to this Court as to the allegations leveled by
Post after eight (08) weeks.”
Pursuant to the aforesaid directions, Metropolitan Sessions Judge,
Hyderabad, inquired into the matter and in his report dated 18.04.2017 it was
stated as under:
“Thus, the Inspector of Police, Bhimavaram Rural PS in his enquiry
report submitted to the Superintendent of Police, West Godavari
District dt. 5.1.2017 admitted the petitioner no. 1 being the Akiveedu
PS on 30.08.2016 and on 31.08.2016 and the petitioner no. 1 and his
wife entered into a settlement deed and the petitioner no. 1 agreed to
pay Rs. 9 lakhs to his wife. But, the respondent no. 2 denied the
same and stated that there was no necessity for him to bring PW1 to
the PS, when the case was withdrawn by Razia Sultana on
24.08.2016 itself. If the case was withdrawn by Razia Sultana on
24.08.2016 itself as contended by the respondent no. 2 there was no
necessity for both the parties to settle the matter in the PS by
executing Ex. P1. The documents exhibited by the petitioners would
support the contention of the petitioners the PW1 was forcibly
brought to Akiveedu PS and got signed on Ex. P1 against his will.
The copy of the release deed given to PW1 would also prove that he
was taken by the Akiveedu Police and released on 31.08.2016. The
said document would disclose that he was called for counseling to
the police station in relation to the complaint given by the wife of
PW1. No notice was issued to the petitioner no. 1 under Section 41-
A Cr.P.C asking him to attend the counseling by respondent no. 2.
Without issuing any notice to the petitioner no. 1 taking him to
Akiveedu Police Station in the name of counseling, detaining him on
30.08.2016 and on 31.08.2016 till 11.00 p.m. would prove the
contention of the petitioners that the petitioner no. 1 was forcibly
taken away by the second respondent in violation of the orders of the
Hon’ble High Court in writ petition no. 27778/2016 dt. 19.08.2016.
The respondent no. 2 submitted that he was not available in the
Police station and he was on bandobust duty from 12.08.2016 to
28.08.2016. The alleged dates of confinement of PW1 in the PS are
on 30.08.2016 and 31.08.2016. The respondent no. 2 had not stated
anything about his absence in the PS on the said dates. Hence, the
oral and documentary evidence adduced by the petitioners would
amply prove the contention of the petitioners that PW1 was forcibly
taken away by the second respondent to Akiveedu Police on
29.08.2016 at 10.30 p.m. from Hyderabad and was illegally detained
in the PS on 30.08.2016 and on 31.08.2016 till 11.00 p.m.”
The matter was thereafter taken up by the Single Judge of the High
Court. After considering the rival submissions, by his decision dated
29.11.2019, the Single Judge found respondent No.1, who at the relevant time,
was Station House Officer, Akividu Police Station, West Godavari District to
be guilty of contempt. The concluding part of the decision of the Single Judge
was to the following effect:
“32. Accordingly, the Contempt Case is allowed. The 2nd respondent
is sentenced to suffer three (03) months imprisonment with a fine of
Rs. 2,000/- under Section 12 of the Contempt of Courts Act, 1971 for
willful disobedience of the order dt. 19.08.2016 passed in WPMP
No. 34412 of 2016 in WP No. 27778 of 2016; the sentence of
imprisonment is suspended for a period of six (06) weeks; the
petitioners shall deposit subsistence allowance at the rate of Rs. 300/-
per day within six (06) weeks.
Disciplinary action shall also be initiated by the State of Andhra
Pradesh rep. By its Principal Secretary, Home Department,
Secretariat, Velagapudi against the 2nd respondent in regard to the
wrongful detention of 1st petitioner on 30.08.2016 and 31.08.2016 in
violation of the above order passed by this Court.”
Respondent No.1 being aggrieved, filed Contempt Appeal No.45 of 2018.
The Division Bench of the High Court took the view that since no crime was
registered, the directions issued by this Court in Arnesh Kumar v. State of
Bihar & Another1
would not come into play. The Contempt Appeal was,
therefore, allowed by the Division Bench. The observations in that behalf were:
“Admittedly, in the instant case, no crime is registered till date. The
learned Counsel for the writ petitioners is not in a position to tell us
as to whether any crime was registered in the police station, while
the learned Government Pleader would submit that pursuant to the
report lodged by the wife of the 1st petitioner, the appellant called the
petitioners to the police station over phone for counseling and
thereafter, the matter was settled.
Be that as it may, now the issue is whether the appellant willfully
disobeyed the orders of this Court dated 19.8.2016 in WPMP No.
34412 of 2016 in W.P. No. 27778 of 2016 and the judgment of the
Apex Court in Arnesh Kumar Vs. State of Bihar and another. The
learned Counsel for the writ petitioner would contend that the
appellant has forcibly taken away the 1st petitioner and detained him
illegally in the police station. The said contention was denied by the
appellant. As stated by us earlier, the above judgment of the Apex
Court would come into operation only when the crime was
registered. But in the instant case, no crime was registered till date.
When there is no crime, the question of arresting the writ petitioners
would not arise.”
Being aggrieved by the decision of the Division Bench, the original
Contempt Petitioner is in appeal.
Heard learned counsel for the parties.
The report of the Metropolitan Sessions Judge, after due inquiry into the
matter sets out the factual details of the matter. The report indicates that thecontempt petitioner was not only summoned to Akividu Police Station in the
name of counseling but was also detained.
In the circumstances, there was clear violation of the directions issued by
this Court not only in Arnesh Kumar1
but also in the case in D.K. Basu v. State
of West Bengal2
The mere fact that no crime was registered, could not be a defence, nor
would it be an escape from the rigour of the decisions rendered by this Court.
As a matter of fact, summoning the person without there being any crime
registered against him and detaining him would itself be violative of basic
In the circumstances, the Division Bench was not right and justified in
setting aside the view taken by the Single Judge of the High Court. We,
therefore, allow this appeal. While setting aside the decision of the Division
Bench of the High Court, we restore the decision of the Single Judge.
However, considering the facts and circumstances on record, the
substantive sentence of three months as recorded in paragraph 32 of the
decision of the Single Judge is modified to 15 days leaving rest of the incidents
of sentence completely intact.
The contemnor shall surrender himself before the Registrar of the High. Court within two weeks from today.
With these observations, the appeal stands allowed.
[UDAY UMESH LALIT]
[S. RAVINDRA BHAT]
[ BELA M. TRIVEDI]
September 15, 2021.