CR.MA/164/2004 1/65 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 164 of 2004 With MISC. CIVIL APPLICATION No. 538 of 2004 With CRIMINAL MISC.APPLICATION No. 10780 of 2006 With CRIMINAL MISC.APPLICATION No. 11560 of 2005 In CRIMINAL MISC.APPLICATION No. 164 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? CR.MA/164/2004 2/65 JUDGMENT ====================================== MOHMED JUNED SHAMSUDDIN SAIYED & 4 - Applicants Versus K C KAPOOR, PRINCIPAL SECRETARY & 3 - Respondents ====================================== Appearance : 1. Cri. Misc. Applications No. 164 of 2004 & 11560 of 2005. MR M.T.M. HAKIM WITH MR MAKBUL I MANSURI for Applicants. MR KAMAL B TRIVEDI, ADVOCATE GENERAL WITH MR SUNIT SHAH, GOVERNMENT PLEADER WITH MR KP RAVAL, APP for Respondents. 2. Misc. Civil Application No. 538 of 2004 MR MUKUL SINHA WITH MR RAUF K. MANSURI for Applicant. MR KAMAL B TRIVEDI, ADVOCATE GENERAL WITH MR SUNIT SHAH, GOVERNMENT PLEADER WITH MR KP RAVAL, APP for Respondents. 3. Cri. Misc. Application No. 10780 of 2006 MR GIRISH PATEL with MR V.A. MANSURI for Applicant. MR KAMAL B TRIVEDI, ADVOCATE GENERAL WITH MR SUNIT SHAH, GOVERNMENT PLEADER WITH MR KP RAVAL, APP for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 30/10/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Since common issue is involved in all these petitions / applications requesting this Court to initiate contempt proceedings against the respondents – opponents in the CR.MA/164/2004 3/65 JUDGMENT respective applications for the alleged custodial violence and wilful and deliberate breach of the guidelines issued by the Hon'ble Supreme Court in the case of D.K. Basu V/s. State of West Bengal, 1997 (1) SCC 416 and since all these petitions / applications are heard together, the same are being disposed of by this common judgment. 2. Cri. Misc. Application No. 164 of 2004 is filed by five persons, namely, (1) Mohmed Juned Shamsuddin Saiyed (2) Harish Shakeel Ahmed Ansari, (3) Zahidkhan Khayyum Khan Pathan, (4) Abdul Rauf Ramjubhai Dhobi and (5) Mohmad Rafik Nasimbhai Ansari and according to them, they were illegally picked up and detained by the opponents during the period between 06.12.2003 to 09.12.2003. They came to be arrested on 11.12.2003 in connection with the offence registered with DCB, Ahmedabad being C.R. No. I 16/2003. They were produced before the learned Special Judge (POTA)on 12.12.2003. An application for police custody was moved by Additional Commissioner of Police, Ahmedabad – the opponent No. 3 herein seeking police custody for the period of 21 days. The learned Special CR.MA/164/2004 4/65 JUDGMENT Judge (POTA) vide his order dated 12.12.2003 rejected the said application for police custody. Being aggrieved by the said order, the State Government has preferred Criminal Appeal No. 1557 of 2003 under Section 34 of the Prevention of Terrorism Act (for short “POTA”) before this Court and this Court has admitted the said appeal and granted ad-interim relief in the form of granting police custody for a period of 10 days. Pursuant to this order, the applicants were taken in police custody from Sabarmati central jail on 24.12.2003. On the very same day, the applicants moved an application before the POTA Court ventilating the apprehension of custodial torture and custodial violence and seeking compliance by the opponents of the guidelines and directions issued by the Hon'ble Supreme Court in D.K. Basu's case (Supra). The wife of the applicant No. 3 Zahidkhan has also filed an affidavit stating that the opponent No. 4 i.e. Police Inspector, DCB, Ahmedabad had threatened the applicant No. 3 with fake encounter death. The said application however was rejected by the learned Special Judge, POTA. 3. It is also the case of the applicants that the applicants' CR.MA/164/2004 5/65 JUDGMENT advocate Mr. L.R. Pathan and Mrs. Rehana Zahidkhan visited the applicants during the period when the applicants were in police custody and the applicants have complained of custodial torture and custodial violence being meted out to the applicants. The applicants, therefore, filed Special Criminal Application No. 1321 of 2003 before this Court which was disposed of on 30.12.2003, after recording consensus that with a view to allay the apprehension of the petitioners, the police, even during the custodial remand, shall allow visit by any lawyer of the choice of all the accused for about 30 minutes every day during the period between 07.00 p.m. to 08.00 p.m. and, if requested by the lawyers at the instance of the accused, the concerned accused shall also get examined through the Medical Officer. It is also the case of the applicants that on 02.01.2004 when the period of 10 days granted by this Court of police custody was over, the applicants were produced before the learned Special Judge (POTA) on 03.01.2004 and on being asked by the learned Special Judge (POTA), the applicants have complained of custodial torture and custodial violence meted out to them. The learned Special Judge (POTA), therefore, took notice of the said CR.MA/164/2004 6/65 JUDGMENT facts and on a complaint of the applicant No. 1 - Juned, the learned Special Judge (POTA) also directed medical examination by taking note on record the physical marks of custodial torture and custodial violence on the body of the said Mr. Juned. 4. In the above background of the matter, the applicants have filed the present petition before this Court stating that the opponents have deliberately and willfully violated the guidelines and directions of the Hon'ble Supreme Court amounting to contempt of the said guidelines and directions and requested this Court to initiate and prosecute appropriate proceedings against the opponents under the Contempt of Court Act. 5. This Court has issued notice on 12.01.2004. An affidavit- in-reply was filed by the opponent No. 3 disputing and denying the contents of the application. It is contended in the said reply that the applicants have initiated proceedings before several Courts making same allegations and have failed to obtain the reliefs prayed for in the said applications / petitions. The applicants / accused Nos. 1,2 & 3 came to be arrested on 11.12.2003 CR.MA/164/2004 7/65 JUDGMENT and the accused Nos. 4 & 5 were arrested on 12.12.2003 and arms and ammunitions were recovered from each of these accused. It is further contended that the accused through their advocates have raised grievances when they were produced before the designated Court, Special Judge (POTA) on 12.12.2003. However, while rejecting the remand application filed by the Investigating Agency, the learned Special Judge (POTA) in absence of material to substantiate their case did not take cognizance of the said grievances and did not pass any order with regard to the said aspect on merit. It is further contended that while challenging the order of the POTA Court refusing to grant police remand, the Investigating Agency specifically averred in the petition before this Court that a criminal conspiracy was hatched with an intention to threaten the unity, integrity and security of the State with a specific intention to revenge by striking terror in the minds of the people of Gujarat. Considering the overwhelming merits, statements and gravity of the offences alleged, this Court has admitted the appeal and granted police remand for a period of 10 days. It is further contended that the allegations made by the applicants are totally baseless and unsubstantiated. The CR.MA/164/2004 8/65 JUDGMENT conduct of the Investigating Agency by voluntarily making a concession to alley the fears of the applicants – accused and their family members itself demonstrate that the police had never desired to employ any kind of third degree method. The father of the accused No. 2, Shri Nasim Munir Ansari visited the accused on 27.12.2003 and has expressly stated that he was satisfied with the condition of his son and his son has not made any complaint with regard to the treatment meted out to him during the police remand. Similarly, Mrs. Banubibi, the mother-in-law of the accused No. 5 has also stated in clear terms that she had no complaint with regard to any of the misconduct by the police authority during his police remand. Even the concerned accused have not made any grievance during the presence of their advocate with regard to any pressure tactics being adopted / employed to obtain confessional statements. It is, therefore, urged that inspite of never having made any grievances before the competent Court with regard to illegally adopted / obtained confessional statements, at the belated stage, moving of such an application before this Court by the applicants – accused is nothing but an afterthought. Whenever medical examination of CR.MA/164/2004 9/65 JUDGMENT the applicants – accused were required, the same were provided and necessary evidence to that effect was also produced before the Court. Despite the fact that all the allegations which were made by the accused in the present application are baseless and are denied, the opponent No. 3 in his affidavit-in-reply has stated that he holds this Court in highest respect and at no stage has violated any of the guidelines issued by the Hon'ble Supreme Court. He has also tendered his unconditional apology in the event if it is observed by this Court that there is any violation of the guidelines issued by the Hon'ble Supreme Court. 6. An affidavit-in-rejoinder was filed on 10.03.2004 by Mrs. Rehana, wife of Zayedkhan, the applicant No. 3. She has controverted the facts stated and averments made in the affidavit-in-reply and reiterated the contents of the application. It is inter alia, stated in the rejoinder affidavit that ex-parte remand granted by this Court was challenged before the Hon'ble Supreme Court and in its order dated 13.01.2004, it has been observed that the High Court ought not to have entertained the appeal. However, since appeal filed by the State itself was CR.MA/164/2004 10/65 JUDGMENT withdrawn on 13.01.2004, the SLP was rendered infructuous and was accordingly dismissed. It is further stated that though the applicants-accused were stated to have been medically examined, no reports have been produced. It is further stated that when the applicants- accused were produced before the Special POTA Court, marks of injuries on the body of some of the applicants- accused were observed and yet the Medical Officer conveniently failed to observe marks of injuries. It is, therefore, contended that the non-performance of correct and true medical examination of the applicants during the period of police custody amounts to contempt of Court and the breach of guidelines. 7. After considering the reply as well as the rejoinder, this Court has passed an order on 16.03.2004 seeking an explanation in respect of an infirmity of non-recording of the injury which was visible as per the order of the learned POTA Judge, in the injury certificate issued in respect of the accused. This Court has directed the opponents to place on record the affidavits of the concerned persons and to produce authenticated copies of the relevant medical papers. CR.MA/164/2004 11/65 JUDGMENT 8. In compliance of the said directions of this Court, an affidavit-in-sur-rejoinder was filed by Mr. V.V. Chaudhary, on 09.04.2004 and along with the same, affidavits of the concerned Doctors as well as relevant case papers are produced on record. It is stated therein that there were no specific details given with regard to date, time and name of the concerned Police-Sub- Inspectors who have inflicted any injury on any of the applicants during the course of interrogation. During the course of hearing before the POTA Court, the applicants have not revealed the names of the Police Officers against whom allegations of beating have been made. The applicants could not give specific names nor enumerated any specific details. Mrs. Rehana Pathan, wife of Zahidkhan herself visited the concerned accused on several occasions during the period of police remand. However, on no occasion, she had voiced any complaint with regard to the same before the concerned authority or any superior Officer or even before the learned Special Judge, POTA with regard to any custodial violence or any physical torture. An explanation was also given with regard to the allegation of causing some CR.MA/164/2004 12/65 JUDGMENT injury to the accused, namely, Mohmmed Juned and in respect of whom injury marks were found by the learned Special Judge (POTA). It was stated that being night time and due to poor visibility, the learned Special Judge (POTA) took the mobile phone of P.S.I. And with the assistance of the light emitting from mobile phone made the visual examination and then made a note of the complained injury and directed medical examination of the said accused. Dr. Manish has examined each of the accused and in his affidavit produced on record he has clearly stated that though some of the accused complained of pain, no mark of injury was observed by him. Thus in the case history, he made a note of the complaint made by some of the accused and appropriate medicines were also prescribed. However, as no marks of injuries of beating were observed by him in the detailed medical examination, he did not make any noting in that behalf. He has also clearly stated that he holds the Hon'ble Special Judge (POTA) in the highest esteem and as the Hon'ble Special Judge (POTA) had noted some marks of injury, he was of the view that making any observations contrary to the same would amount to showing disrespect to the Hon'ble Court. CR.MA/164/2004 13/65 JUDGMENT 9. After the aforesaid affidavit of the concerned Doctor was filed and case papers were produced before this Court, the applicants have moved Cri. Misc. Application No. 11560 of 2005 praying for cross-examination of Shri V.V. Chaudhary, Dr. Manish, Dr. Dinesh Chandana and Dr. Kuldip Joshi under the provisions of Rule 17 of the Contempt of Courts (Gujarat High Court) Rules, 1984. it is contended that these persons are required to be cross- examined for finding out true facts and for proper adjudication of contempt petition. 10.Misc. Civil Application No. 538 of 2004 is filed by one Sadabkhan Mazharkhan Pathan. He was taken by the opponents on 05.01.2004 by transfer warrant from the judicial custody, in connection with the offence registered with the DCB, Ahmedabad being C.R. No. I 16/2003. An application was moved on 06.01.2004 by the Investigating Agency seeking police custody for the period of 21 days. The said application was partly granted and the police remand of 10 days was given. On 16.01.2004, when the police remand of 10 days was over, the applicant was produced before the learned CR.MA/164/2004 14/65 JUDGMENT Special Judge (POTA) and on being asked by the learned Special Judge (POTA), the applicant complained of custodial torture meted out to him. The learned Special Judge (POTA) took notice of the said fact and on complaint of the applicant, directed medical examination by taking note on record the physical marks of custodial torture and custodial violence on the body of the applicant. It is, therefore, contended that the opponents have committed wilful and deliberate breach of the guidelines and directions issued by the Hon'ble Supreme Court and requested this Court to initiate contempt proceedings. 11.An amendment was made in the said application pursuant to leave granted by this Court vide order dated 19.04.2004 whereby the details regarding custodial torture meted out to the applicant were given and the names of the police officials and the role that has been played by them were also given. 12.An affidavit-in-reply was filed by Shri V.V. Chaudhary, Assistant Commissioner of Police and the allegations made in the application were totally denied by him. It is CR.MA/164/2004 15/65 JUDGMENT stated that between 06.01.2004 to 16.01.2004, the applicant has been subjected to medical examination on regular intervals at least on four occasions and the details were given in the reply. It is further stated that the remarks made in each of the medical reports obtained on different dates clearly revealed that none of the injuries being referred to by the applicant and alleged to have been inflicted on 09.01.2004 was ever reported or physically found. During the period between 06.01.2004 to 16.01.2004, several advocates were permitted to meet the applicant on various occasions and details thereof are also given. The wife and brother of the applicant were also permitted to meet the applicant on 11.01.2004 and 15.01.2004. While taking note of the confessional statement of the applicant, Chief Metropolitan Magistrate, Ahmedabad categorically observed that no complaint of ill-treatment was given. The said statement was read over to the accused and he admitted that he has voluntarily stated the facts before the Police and signed before him. It is, therefore, denied that the confession was false or has been extracted under torture and coercion as alleged. On none of the occasions, the complaint of whatsoever nature was ever CR.MA/164/2004 16/65 JUDGMENT made by the applicant either before the Magistrate or before the concerned Medical Officers on 10.01.2004, 12.01.2004 and 14.01.2004 or to his advocates and/or his family members on the aforesaid dates. Had the applicant been ill-treated on 09.01.2004 as alleged, he would have definitely informed his wife and/or brother and/or advocate when they visited the applicant on various dates and even otherwise, the injury complained would have definitely been observed in the subsequent medical examinations. Since the learned Special Judge (POTA) is already seized of the matter and if any substance was found as regards the grievances made by the applicant in the present application, the learned Judge would have ordinarily directed further investigation by any expert committee or by senior Doctors in the panel of Doctors. The applicant was thereafter never referred to further medical examination for the purpose of expert opinion. 13.An affidavit-in-rejoinder was filed by the wife of the applicant on 13.09.2004 wherein the facts stated and averments made by the opponent in the affidavit-in-reply were disputed and denied. The facts regarding custodial CR.MA/164/2004 17/65 JUDGMENT torture and violation of breach of the guidelines issued by the Hon'ble Supreme Court were reiterated in the rejoinder. It is further stated in the affidavit-in-rejoinder that the applicant-accused all throughout complained about custodial torture and custodial violence. But, since the applicant-accused was in police custody and the opponents were intimidating both the applicant- accused and his lawyers, neither of them could dare to complain. It is further stated that medical examination of the applicant-accused during the course of remand was merely an eye-wash and a redundant formality. It is further stated that gross and severe custodial torture and custodial violence was subjected to the applicant- accused and it was evident from the fact that the applicant-accused, when he was produced on completion of remand before the learned Special Judge, POTA, complained of the same and on observing him the learned Special Judge, POTA himself visualised and noted the injuries in the order dated 16.01.2004. An affidavit of the applicant-accused himself sworn on 24.04.2006 is attached along with the rejoinder-affidavit. 14.Further affidavits were filed by the opponent No. 1 Shri CR.MA/164/2004 18/65 JUDGMENT V.V. Chaudhary, Assistant Commissioner of Police and by Mr. Tarun Barot, Police Inspector, DCB Police, Opponent No. 3 herein. Mr. V.V. Chaudhary has stated in his affidavit that all the averments and allegations levelled against him by the applicant are absolutely false and the same were denied. He had never personally gone to the lockup where the applicant is detained nor Mr. Tarun Barot, P.I. had ever accompanied him to the said lockup. After the formal arrest of the applicant on 05.01.2004, he had an occasion to interrogate the applicant in his office till he was sent to the lockup at 23.30 on 05.01.2004. Similarly, on 06.01.2004, he had not gone to the lockup at any point of time nor did the said Mr. Tarun Barot ever accompany him. He has also denied that the applicant's advocate had ever come to meet the applicant during his tenure as Investigating Officer and, therefore, there was no question of his sitting in front of the applicant's advocate whenever he came to meet the applicant in police custody. On 07.01.2004, Mr. D.D. Chaudhary was in charge of the investigation in question. When the applicant was produced before the learned Special Judge (POTA) on 06.01.2004, he had not made any whisper or complained about the alleged CR.MA/164/2004 19/65 JUDGMENT custodial torture and / or violence either physical or mental as alleged or otherwise. He was not there in picture at all in respect of the investigation in question on and from 07.01.2004 and he was not concerned at all with any of the allegations made against him. All these things are nothing but an afterthought. 15.Mr. Tarun Patel, P.I. has also filed affidavit to the same effect and denied that he had ever gone to the police lockup of the applicant on 09.01.2004 as alleged. He had not visited the applicant at any point of time and hence, there was no question of his causing and/or threatening the applicant to the effect that if he would not confess according to his wish, he would be finished in an encounter as alleged. He was not personally aware of any of the medical examination which came to be conducted on several occasion in respect of the applicant. He was impleaded only because he happened to be the complainant in the FIR in question lodged against the applicants for various offences. He has, therefore, submitted that the notice issued by this Court against him is required to be discharged. CR.MA/164/2004 20/65 JUDGMENT 16.Misc. Civil Application No. 472 of 2006 is converted into Cri. Misc. Application No. 10780 of 2006. It is the case of the petitioners that the petitioner No. 1 Dr. Shakeel A. Ansari is the father of Harish and the petitioner No. 2 i.e. S.S. Saiyed is the father of Mohmmad Juned. Both these persons, namely, Harish and Juned were in judicial custody during the pendency of Special Pota Case No. 4/2004 and they were in Sabarmati Jail. It is also their case that FIR bearing C.R. No. 1/06 came to be registered on 03.02.2006 with ATS Police Station and petitioners' sons were taken on 06.02.2006 through transfer warrant from their judicial custody by the respondents in the said offence. They were produced before the learned Magistrate and immediately on their production, they have complained of custodial torture and violence, more particularly, Harish complained that by covering his face, electric shocks were given to him and he was threatened that electric shocks will be given on his penis. Juned has also complained of electric shocks, beaten by wooden sticks on the soles of his foot and also on his hand and fingers. The learned Magistrate observing the injuries, sent them for medical treatment on 07.02.2006. On 08.02.2006, an application CR.MA/164/2004 21/65 JUDGMENT was moved by the opponents for police remand and the same was granted upto 13.02.2006. On completion of the remand, both the accused were warned not to make any complaint before the Magistrate and if they would do it, they have to face serious and dire consequences. It is also their case that pursuant to their complaint on 12.02.2006, their relatives were permitted to meet their sons but that was in the presence of the police personnels and at that time also, complaint was made by them with regard to torture and violence. 17.On this factual background, the present application is filed ventilating the grievances that the opponents have grossly violated the fundamental rights and human rights of the petitioners and their sons. The respondents have also acted in violation of the guidelines issued by the Hon'ble Supreme Court and by virtue of it, the opponents have committed