Madras High Court K.S.Anwar @ Syed Anwar vs The State on 18 August, 2014 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.08.2014 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Contempt Petition (MD)No.974 of 2014 in Crime No.54 of 2014 K.S.Anwar @ Syed Anwar .. Petitioner Vs 1.The State, rep.by The Sub-Inspector of Police, Central Crime Branch, Madurai City. (In Crime No.54 of 2014). 2.Mr.Sridharan, Sub-Inspector of Police, Central Crime Branch, Madurai City. .. Respondents Petition under Section 11 of Contempt of Courts Act, 1971 to punish the second respondent for the deliberate and willful disobedience of the guidelines issued by the Honble Supreme Court of India in D.K.Basu vs. State of West Bengal (AIR 1997 SC 610). !For Petitioner : Mr.R.Gandhi For Respondents : Mr.P.Kandasamy, Govt.Advocate (Crl.Side) for R1 :ORDER The petitioner has come up before this Court seeking to initiate contempt proceedings against the respondents for not following the guidelines issued by the Honble Supreme Court in D.K.Basu vs. State of West Bengal reported in (1997) 1 SCC 416. 2.The case of the petitioner is that the petitioner and others set up an Agency in the name and style of ?Alliance Expert Courier? to carry on courier business. They also appointed sufficient persons as agents on commission basis. Due to misunderstanding between the parties, in 2013, the petitioner resigned from the Partnership Firm, and one Mr.Khader Ibrahim took over the charge of the company along with one Kottairaj. 3.Thereafter, the petitioner started a new Partnership Firm in the name and style of ?Non-Stop Courier? having his Head Office at Madurai. However, due to the transaction in the earlier Partnership Firm, one Mr.Kumar, a native of Tirunelveli and seven others, trespassed into the petitioners company and created unnecessary problems, in spite of informing about the resignation of the petitioner from the said Firm. A complaint was given by Mr.Kumar stating that the petitioner had cheated a sum of Rs.2,00,000/- on the promise that he would appoint him as Agent, however, he was not appointed. Based on the said complaint, FIR was lodged against the petitioner in Crime No.54 of 2014 under Sections 406 and 420 IPC and thereafter, the petitioner was arrested. The case of the petitioner is that as per D.K.Basus case, cited supra, the relatives of the petitioner should have been informed immediately about the arrest and the reason for arrest, and no such information was given to the relatives. Therefore, the petitioner has come up before this Court. 4.The learned counsel for the petitioner would submit that non- communication of the arrest of the petitioner, resulted in serious prejudice to the petitioner, as he was not allowed to have proper legal assistance. Secondly he would point out the judgment of this Court in H.C.P.Nos.693 and 695 of 2013 dated 29.08.2013, wherein this Court deprecated the practice of informing the relatives over cell phones. Reference is also made to the letter issued by the Home Ministry, Government of Tamil Nadu, dated 07.02.2012, giving a clear direction to rectify the technical lapses subsequently committed by the authorities, with regard to communication of information of arrest to the relatives over cell phones. Therefore, it is submitted that the respondents should be punished. 5.Mr.P.Kandasamy, learned Government Advocate (Crl.Side) would submit that immediately after arrest, the petitioners wife was informed over cell phone No.9524798373 and she rushed to the Police Station. Further, it is submitted that signature was obtained by the authorities from the detenu, endorsing the information given by the respondent Police to the petitioners wife. Therefore, according to the learned Government Advocate (Crl.Side), no prejudice is caused to the petitioner. 6.Heard the parties and perused the records. 7.It is relevant to refer to the guidelines issued by the Honble Supreme Court in D.K.Basu vs. State of West Bengal, reported in (1997) 1 SCC 416 and the same are extracted hereunder: 35.We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1)The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2)That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee ad shall contain the time and date of arrest. (3)A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4)The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5)The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (6)An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7)The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8)The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9)Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record. (10)The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11)A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. (emphasis supplied.) 8.From the above, it is clear that Guidelines 3 to 6 insist upon the procedure to be followed at the time of detention, including the information immediately given to the close relatives and friends. Though it is contended by the prosecution that through Cell Phone No.9524798373 information was given to the wife of the petitioner, giving information through cell phone has been deprecated by the Division Bench of this Court by order dated 29.08.2013 in H.C.P.Nos.693 and 695 of 2013. The relevant paragraphs of the said judgment are extracted as under: ?15. Intimation of arrest should be communicated to the relatives or the friends of the person concerned through anyone of the legally recognised modes, which would ensure the right of the person arrested under preventive detention. If such intimation of arrest has not been made effectively, then, it would confer a right upon the arrestee to impugn the arrest effected on him and thereby, the detention order would get vitiated on that ground also. Here is a case, where the arrest of the detenus had been communicated through cell phone to the wife and friend of the detenus, but, there is no proof to exhibit that the intimation of arrest was given to the family members of the detenus. On the failure of the same, the detention order would be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India. 16. Also, the Honourable Supreme Court in A.K.Roy v. Union of India reported in 1982 Supreme Court Cases (Cri) 152, held as follows: Moreover, in order that the procedure attendant upon detentions should conform to the mandate of Article 21 of the Constitution of India in the matter of fairness, justness and reasonableness, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. It is necessary to treat the detenu consistently with human dignity and civilised norms of behaviour. (emphasis supplied.) 17. Further, Section 50-A of the Code of Criminal Procedure, 1973, which was inserted under Amendment Act 25 of 2005 and is in existence since 23.06.2006, stipulates the obligation of person making arrest to inform about the arrest etc., to a nominated person. The clause-1 of Section 50-A of the Cr.P.C., reads as under: (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. 18. In furtherance to the above, the Government of Tamilnadu, Home, Prohibition and Excise (XVI) Department, Secretariat, Chennai issued certain instructions vide its letter dated 07.02.2012 to the Director General of Police, Chennai, all the District Magistrate and District Collectors and the Commissioner of Police, giving clear proposition as to the rectification of technical lapses frequently committed by detaining authorities at the time of passing detention orders, as brought to the notice of the Government by the Public Prosecutor, High Court, Chennai, as the lapses end in release of detenus by the Honble High Court. Out of which, clause-15 of the instructions provides that arrest intimation over cell phone / land line phone should be avoided. Thus, the Government requested all the authorities concerned to ensure that the points suggested ought to be followed without any lapse in the Preventive Detention Cases and any lapse in this regard will be viewed seriously. 19. Despite clear instructions given by the Government after touching upon the legal position, the officer, who arrested the detenus informed the said arrest to the wife and friend of detenus over cellphone, by simply stating that the date of arrest being Sunday, no telegraphic service was available, which is a matter of ignorance on the part of arresting authorities, as in our country, telegraphic services are available even on Sundays. The mode of communication adopted by the authorities, which was not even looked into by the detaining authorities is not only unknown to the settled principles, but also is an attempt to cast aside the instructions given by the Government.? 9.Hence, it is clear that the Home Ministry, in its letter dated 07.02.2012, has already informed the police authorities not to follow the procedure of intimating the relatives over cell phone or landline, but to follow the procedure of sending E-Post. The Division Bench noted the availability of E-Post with effect from 30.01.2014 onwards. Relevant paragraphs are extracted hereunder: ?12. The learned Additional Solicitor General of India has filed a Memo by inter alia stating that e-post system has been introduced with effect from 30.01.2004 by the Department of Posts, Government of India, which acts as a more effective and speedy alternative for telegrams and postal services and e-post will be an effective and speedy method of official communication by public authorities. In this regard, a document is also filed explaining as to the benefit and usage of e-post on abolishment of telegram service, which reads as under: ?The internet revolution has allowed rapid exchange of communication through email. However, the internet has not reached most of the rural India and other remote areas. To bridge this digital divide, and to bring the benefit of revolutionary intertechnology to people living in these areas, Department of Posts has introduced epost. The epost was initially launched in 5 States on experimental basis. In the wake of the experience gained, a tie up has been established with National Informatics Centre (NIC) who have developed the software, and the service is being launched on national basis. epost post is a service under which printed or even handwritten messages of customers are scanned and transmitted as email through internet. At the destination offices, these messages are printed, enveloped and delivered through postmen like other letters at the postal addresses. For this purpose, epost centres have been set up in the Post Offices, covering all the districts and towns. These epost centres are equipped with internet connection, computers, printers and other necessary equipment. However, epost service is not limited to the epose centres. It can be availed of from any Post Office. Irrespective of whether a customer is in a metropolis or in a remote village, he can send and receive epost messages. The messages booked at Post Offices which are not the epost centres, are sent to epost centres for scanning and dispatch. Similarly messages received at epost centres for areas beyond their delivery jurisdiction are printed and sent to concerned Post Offices for delivery. Besides availing epost service through Post Offices, it can also be accessed from customers home or office if he has a computer and internet access. The customer can make payment through a prepaid card that is available from selected Post Offices and other outlets. The customer has to register as a user, and can access the service at the epost portal indiapost.nic.in and folling the instructions. At present, only text messages can be sent in this mode. e messages can also be sent to email ID(s) anywhere in the world. Booking can be done from both a Post Office or from customers computer at home or office. The epost messages would be printed on A4 (8.27? x 11.69?) size paper. Therefore, the message booked should be in sheets of no more than A4 size. However, there is no limit on the number of pages that can be sent. epost messages are treated on par with the unregistered letters under the Indian Post Office Act, 1898. The current rates for the epost service are Rs.10 per page per addressee. With the launching of the epost by INDIA POST, email can now be sent and received by even the people living in remote areas, even without the sender or the addressee having access to computers or internet. Besides making the benefits of internet available even to Indians living in remote areas, epost enables businessmen and professionals to advertise their produces and services to select customers. They can send their publicity material even from their or home or office from their computers, without having to spend for printing of advertisements and then on posting or hand delivering them. For availing the epost service, or to have further information, customers can approach the nearest post office or log on to indiapost.nic.in.? 13.To clarify the position further, learned Additional Solicitor General has furnished a booklet informing in nutshell the advantages of availing e-post service, which is in existence with effect from 30.01.2004. Some of the salient features as described in the booklet, are as follows: ?epost We convey your feelings ePost combines the speed of email with delivery at your address by postman. Epost can be sent from home or office using prepaid cards. ePost prepaid cards of various denominations are available at your nearest Head post office. ePost Corporate Service enables corporate customers to draft, design and send the message as per their business requirements from their office premises by using internet.? It is pertinent to mention here that the e-post facility is available since 30.01.2004.? 10.When the Division Bench categorically directed and the letter of the Home Ministry also mandates that the intimation has to be delivered to the close relatives as per the procedure and not through cell phone, it is appropriate for the police authorities to give intimation through E-Post, instead of cell phone or landline. 11.Even taking into consideration of the fact that the petitioners wife was already informed and the said information is also endorsed by the detenu, it cannot be stated that the guidelines stipulated in D.K.Basus case has not been followed. However, with a warning, it is directed that the respondents should follow the procedure of E-Post to inform the detenus relatives, and not through cell phone or landline. The information through cell phone or landline can be given in addition to E-Post only. It is the duty of the respondent Police to follow the fundamental rules to inform the relatives or friends, immediately thereafter, through the modes recognised by the authorities. 12.In view of the above, a copy of this order is directed to be placed before the Director General of Police, who shall inform the concerned police about the necessity to follow the procedure in case of arrest, so that the lapses can be avoided. 13.The contempt petition is closed. To 1.The Sub-Inspector of Police, Central Crime Branch, Madurai City. (In Crime No.54 of 2014). 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Posted on: Sun, 07 Dec 2014 16:13:16 +0000
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