IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION (SUO MOTU) CONTEMPT PETITION NO.116 OF 1995 IN (CRI.MISC.APPLICATION NO.97/93 OF DISTRICT & SESSIONS JUDGE, SOLAPUR) Suo Motu Versus Shri E.N.Sakore, P.S.I., Vairag Police Station, Vairag, ...Respondent/ Tal.Barshi, Dist.Solapur. Contemnor ...... Mr.Rajesh Datar appearing as amicus curiae. Mr.Uday Warunjikar for Respondent/Contemnor. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 14, 2006. JULY 14, 2006. JULY 14, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Contempt Petition arises out of reference made by the District and Sessions Judge, Solapur. The background in which the present proceeding emanates, is as follows: . One Shri Ramchandra Genaba Devkar : 2 : (hereinafter referred to as ‘the Applicant’), who was serving as Junior Engineer in the Irrigation Department of Government of Maharashtra, filed Anticipatory Bail Application before the District Court at Solapur being Criminal Misc. Application No.97 of 1993, on 15th February 1993. In the said application, it was stated that his superior Rangnath Waman Kulkarni, Deputy Engineer, Irrigation Department, Barshi, out of vengeance and enmity was persecuting him and had filed a false case naming him as accused with the Vairag Police Station being C.R.No.18/92 for offence punishable under Section 409 of the Indian Penal Code. The Applicant, apprehending his arrest in connection with the said offence, moved the District Court for anticipatory bail as aforesaid. The Applicant, in the said application also prayed for ad-interim protection during the pendency of the Anticipatory Bail Application. The concerned Court heard the Public Prosecutor before granting ad-interim relief on 18th February 2002. It is noted in the say filed by the Public Prosecutor that there is strong prima facie evidence against the Applicant and that if released on anticipatory bail, he will misuse : 3 : the bail. The say filed by the Public Prosecutor clearly records that he had received police papers on the basis of which the say was filed. Inspite of this objection, the District Court, upon considering the relevant aspects, by order dated 18th February 1993 gave protection to the Applicant till 20th February 1993. The fact that the prayer for ad-interim relief was opposed by the Public Prosecutor, presupposes that he had necessary instructions in the matter from the concerned investigating agency. 2. Be that as it may, the District Court had granted ad-interim relief up to 20th February 1993, thereby directing release of the Applicant on personal bond in the sum of Rs.2,000/- (Rupees Two Thousand) with one surety in the like amount, in the event of his arrest. The Public Prosecutor in the said Criminal Application, filed further written say on 18th February 2003 which is part of the paper-book. As the ad-interim order of anticipatory bail was limited till 20th February 1993, it is the case of the Applicant that he along with his Advocate was present in the Court : 4 : premises. His Advocate had gone for the purpose of seeking extension of ad-interim order of anticipatory bail, which was extended till February 22, 1993. The detail case of the Applicant which is relevant for the purpose of present proceedings will be adverted to a little later. 3. The charge against the Respondent/Contemnor is that the Respondent/Contemnor who was the Investigating Officer in the case, proceeded to arrest the Applicant on February 20, 1993 at 8.30 p.m., inspite of the ad-interim order of anticipatory bail operating in his favour. This was done with full knowledge and in defiance of the ad-interim order, which was extended up to 22nd February 1993. The record shows that the Applicant was shown as arrested by the Respondent/Contemnor on 20th February 1993 at 8.30 p.m. Indeed, the Applicant was produced before the Court on the next day on 21st February 1993 on which date, he was remanded to police custody till 24th February 1993. Thereafter, the Advocate for the Applicant moved the District Court pointing out that the Applicant : 5 : has been arrested by the police inspite of the ad-interim order of anticipatory bail which was to operate till 22nd February 1993. Two separate applications came to be filed by the Advocate for the Applicant. One for releasing the Applicant on bail and the second for initiating contempt action against the Respondent. 4. Insofar as the Bail Application is concerned, the District Court while ordering release of Applicant on bail, has noted the fact that inspite of anticipatory bail operating in favour of the Applicant, he has been arrested by the Police, which was a serious matter. As per the bail order, the Applicant came to be released on 22nd February 1993. On the other application preferred by the Advocate for the Applicant to initiate contempt action against the Respondent/Contemnor, the District Court issued show cause notice to the Respondent/Contemnor calling upon him to show cause why action for contempt of Court should not be taken against him. It is the case of the Applicant that his Advocate collected two envelopes from the office of the : 6 : District Court bearing Nos.2669 and 2670 by hand. One envelope contained writ of bail whereas, the other envelope contained show cause notice issued to the contemnor. It is the case of the Applicant that the envelope which contained writ of bail was accepted by the contemnor whereas, the other envelope containing show cause notice was refused by the contemnor. This is stated to be aggravating the contempt by the Respondent/Contemnor. In this backdrop, the Advocate for the Applicant moved another application before the District Court bringing to the notice of the Court the conduct of the Respondent/Contemnor when the show cause notice of contempt action was attempted to be served on him. 5. The Respondent/Contemnor appeared before the District Court and gave statement in writing on 1st March 1993. The Court directed the Respondent/Contemnor to file affidavit in support of his contention. Pursuant thereto, the Respondent/Contemnor filed his affidavit sworn on 2nd March 1993. The record indicates that thereafter the brother of the Applicant filed his : 7 : affidavit dated 5th March 1993 mentioning the details about the conduct of the Respondent/Contemnor at the relevant time. Applicant also filed affidavit before the Court on 11th March 1993 spelling out the circumstances in which he came to be arrested. The Advocate of the Applicant Pandit Dnyandeo Ubale also filed his affidavit sworn on 12th April 1993 giving details about the events which preceded the arrest of the Applicant inspite of order of ad-interim anticipatory bail which was operating in favour of the Applicant as also regarding the manner in which the Respondent/Contemnor conducted himself when the show cause notice issued by the Court for initiating contempt action was attempted to be served on him. The Respondent/Contemnor filed his further reply before the District Court on 27th July 1993. On considering the materials on record, the District Judge in his Judgment and Order dated September 8, 1993 has found that prima facie, the Respondent/Contemnor had full knowledge that the Applicant was enjoying ad-interim anticipatory bail and inspite of that, arrested him in defiance of the ad-interim order. The Court has also accepted : 8 : the version of the Advocate about the conduct of the Respondent/Contemnor in refusing to accept the show cause notice. On that finding, the Court has opined that prima facie case is made out against the Respondent/Contemnor for initiating action for contempt of Court and accordingly, made reference to this Court. As a consequence of that reference order, present Petition has been registered. 6. This Court issued notice to the Respondent/Contemnor. In response to the show cause notice, Respondent/Contemnor has filed two affidavits before this Court to explain his position. The first affidavit was filed on 1st December 1999 and thereafter on 18th April 2006. 7. The present contempt action against the Respondent essentially is on account of two events. Firstly, on 20th February 1993 inspite of ad-interim order of anticipatory bail operating in favour of the Applicant, the Respondent/Contemnor proceeded to arrest him in defiance of the said order. The second instance is with reference to : 9 : the conduct of the Respondent/Contemnor when the show cause notice as to why contempt action should not be initiated, was attempted to be served on the Respondent/Contemnor by the Advocate himself. 8. I shall first deal with the event of arrest of the Applicant on 20th February 1993 inspite of the ad-interim order of anticipatory bail operating in his favour. The first question is: whether the Respondent/Contemnor had knowledge of the ad-interim order passed in favour of the Applicant and inspite of that, proceeded to arrest him in defiance of the Court’s order? This question can be answered only after analysing the stand taken by the rival parties before the Court. In the application filed on 22nd February 1993, it is alleged that the Respondent has committed contempt of Court by arresting the Applicant in defiance of the ad-interim order of anticipatory bail. It is alleged that after the ad-interim order was continued by the Court on 20th February 1993 till 22nd February 1993, copy of that order was collected by the Advocate for the Applicant, which was made over to the Applicant and his : 10 : brother Maruti Devkar. When the said persons were in the Police Station, copy of the order was made over to E.N.Sakore, P.S.I. Vairag Police Station, Respondent herein at about 7.00 p.m. The Respondent on receiving the copy of the order, kept the same with him by questioning the authenticity thereof. Thereafter, Respondent proceeded to arrest the Applicant at 8.30 p.m. and produced him on 21st February 1993 before the Court. It is clearly stated in the application that Respondent had knowledge about ad-interim anticipatory bail operating in favour of the Applicant and yet proceeded to arrest him in defiance of the Court’s order. The next document which needs to be adverted to, is the affidavit filed before the District Court on 5th March 1993 by Maruti Devkar, brother of the Applicant. In his affidavit, it is stated that the constable of Vairag Police Station brought his brother (Applicant) in the Police Station at about 6.30 p.m. on 20th February 1993. Soon thereafter, Advocate Ubale also arrived at the Police Station and he produced the ad-interim order granted by the Court which extended protection to the Applicant from 20th February 1993 to 22nd : 11 : February 1993. Copy of that order was shown to Respondent by the Advocate. On seeing the said order, the Respondent, it is alleged, said that he would require presence of the Applicant for some time only for interrogation purpose and thereafter, he will be allowed to go. On such comment made by the Respondent, Advocate Ubale handed over copy of the order to Maruti Devkar and explained him about the formalities for offering bail to be undertaken, if required and then, Advocate Ubale left the Police Station. It is stated that thereafter, the Respondent asked for the 7/12 extract, as also the copy of ad-interim anticipatory bail order, which was in possession of the affiant Maruti Devkar. On such demand being made, copies of the anticipatory bail order and 7/12 extract were handed over to the Respondent. Respondent in turn, kept the said papers in his pocket. Thereafter, it is alleged that the Respondent showed Applicant as arrested at 8.30 p.m. It is also alleged that the Respondent asked the affiant Maruti Devkar to arrange for food and clothes of the Applicant. It is stated that the affiant Maruti Devkar asked the Respondent as to what was the need for arranging for meal and : 12 : clothes for the Applicant when he was already granted bail. On such enquiry, it is alleged that the Respondent/Contemnor told the affiant Maruti Devkar that he should not enter into such details and should do whatever is told, otherwise, he will also have to suffer the same consequence and will be kept in jail. On such threats administered by the Respondent, it is stated that affiant Maruti Devkar left the Police Station. Besides, the affidavit of Maruti Devkar, Applicant himself has filed affidavit sworn on 11th March 1993. The version given by Maruti Devkar is reiterated in this affidavit. This affidavit, however, gives further details. It is stated that as the ad-interim order for anticipatory bail granted on 18th February 1993 was only up to 20th February 1993, the Applicant went to the District Court along with his Advocate on 20th February 1993. On reaching the Court, Advocate Ubale asked him to wait near tea canteen. While he was waiting at that place at around 4.30 p.m., constable Savairam, constable Bansode and constable Salim Shaikh came up to him and told him that they have been directed to arrest him. On that, the Applicant pointed out : 13 : that there was already ad-interim anticipatory order operating in his favour up to 20th February 1993. On this, constable Savairam retorted that they (police) know to nullify such orders. He further said that they have been directed by the Respondent PSI Sakore that they should get hold of the Applicant and produce him in the Police Station. On this, the Applicant requested that at least he should be allowed to meet his Advocate. Even that request was turned down. It is further stated that the said constables forcibly took him (Applicant) on a cycle up to Solapur S.T. stand and made him board the S.T.bus which was to leave for Barshi at 5.30 p.m. When he was sitting in the bus, he noticed that Advocate Ubale had come to S.T.stand. He called Advocate Ubale, who in turn, boarded the same bus and travelled with them up to the Police Station. When Advocate Ubale asked the constable as to why Applicant was being forced to go along with them inspite of the bail order, they told that they have been directed by the Respondent to get hold of the Applicant and produce him in Police Station. They were carrying out the direction of Respondent/Contemnor. It is then : 14 : stated that all of them reached the Police Station at around 6.30 p.m. On reaching the Police Station, Advocate Ubale produced copy of the ad-interim anticipatory bail order granted by the Court for the period between 20th February 1993 and 22nd February 1993 before the Respondent. On this, the Respondent/Contemnor told Advocate Ubale that he would require presence of the Applicant for some time for the purpose of interrogation and he will be allowed to go thereafter. It is then stated that Advocate Ubale thereafter handed over copy of the bail order to his brother Maruti Devkar and left for Barshi. After the Advocate had left, it is stated that Respondent asked Maruti Devkar to hand over copy of the said order as well as 7/12 extract. When the said order and 7/12 extract was handed over to the Respondent/Contemnor, he kept the same in his pocket after reading the same. Inspite of the said order, the Applicant was shown as arrested at about 8.30 p.m. and Respondent/Contemnor told Maruti Devkar to arrange for meal and clothes for his brother. The version given by Maruti Devkar has been re-iterated by the Applicant in his affidavit. It is relevant to note : 15 : that the circumstances after arrest have been mentioned in the affidavit of the Applicant. He states that when he was to be produced before the Judge at his residence on 21st February 1993, the Respondent had threatened him that he shall not speak any word against the Police before the Court, except, word ‘NO’ when he will be asked whether he has any complaint against the Police. It is stated that the Respondent had threatened that if the Applicant said any other word, he will be done to death. It is also stated that the Respondent uttered bad words. In this affidavit, it is further stated that because of such threats given by the Respondent, the Applicant did not utter a word before the Judge and when he was asked specifically by the Judge as to whether he has any complaint against the Police, he answered only in one word ‘NO’. 9. It will be useful to advert to the affidavit of Advocate Ubale who had appeared for the Applicant, dated 12th April 1993. Insofar as the first event is concerned, it is stated in his affidavit that after the order was passed on 20th : 16 : February 1993 extending ad-interim relief up to 22nd February 1993, he collected copy of that order and went back to the place where he had asked the Applicant to wait in the Court premises. Having noticed that the Applicant was not present at that spot and inspite of search for him in the Court premises and the nearby hotel, when he could not find the Applicant, he left for the S.T.bus stop, as bus for Barshi was to leave at 5.30 p.m. When he reached S.T.bus stop, he heard that the Applicant was calling him who was sitting in the same bus. When he entered the bus, he found that Applicant was accompanied by three constables. When he enquired with the Applicant as to why he left the place, the Applicant told that he was brought by those three constables forcibly. It is stated that he asked the said constables as to why the Applicant was being taken forcibly inspite of ad-interim order of anticipatory bail operating in his favour. At that time, the said three constables told him that they were acting on the direction of Respondent/Contemnor and have no option. It is also stated in this affidavit that the said constables told him that they brought the : 17 : Applicant to the S.T. stand. It is stated that after the bus reached Barshi, all of them went to the Police Station at about 6.30 p.m., where Respondent/Contemnor was waiting. On reaching the Police Station, it is stated that Respondent was asked as to why Applicant was forcibly brought to Police Station inspite of order of ad-interim anticipatory bail. On that, the Respondent Contemnor told Advocate Ubale that he wanted to interrogate the Applicant and he will be allowed to go thereafter. It is also stated that he (Advocate Ubale) told the Respondent/Contemnor that if required, he was willing to complete the formalities of bail as 7/12 extract was also available. However, as Respondent/Contemnor said that the Applicant will be allowed to go after interrogation, he (Advocate Ubale) left the Police Station handing over copy of the bail order and 7/12 extract to the brother of the Applicant i.e. Maruti Devkar. 10. From the application as well as the separate affidavits filed referred to above, it is seen that the case made out by the Applicant : 18 : against the Respondent/Contemnor is consistent. It will be now necessary to advert to the case of the Contemnor as made out in his pleadings. The first written statement filed by the Contemnor before the lower Court is dated 1st March 1993. The substance of the statement is that when the Applicant was arrested at 8.30 p.m., at that time, he had no knowledge of the fact that ad-interim order of anticipatory bail is operating in his favour. It is then stated that when the Applicant was produced before the Judge on 21st December 1993, even at that time, he did not disclose that ad-interim anticipatory bail order was granted and was operating in his favour at the time of arrest. In his statement, the Respondent has denied the fact that Maruti Devkar, brother of the Applicant had met him along with ad-interim anticipatory bail order. It is stated that if the Respondent had known that such bail order was granted, he would not have arrested the Applicant and instead, released him on bail. When this written statement was produced before the lower Court, the Respondent was asked to file affidavit in support of his contention. Accordingly, the Respondent/Contemnor : 19 : filed affidavit sworn on 2nd March 1993. In the affidavit, the stand taken in the written statement has been reiterated. Thereafter, the Respondent/Contemnor filed detailed affidavit sworn on 27th July 1993 before the lower Court. 11. Insofar as the first event is concerned, this affidavit reiterates the stand taken in the earlier affidavit of Respondent that he had no knowledge about the existence of bail order nor he was informed about the same by any one or brother of the Applicant. It is further stated in the said affidavit that when the Applicant was arrested, at that time, no bail order was shown to him and that, false case has been made out that bail order was taken away by him. Besides, when the Applicant was produced before the Judge, the Applicant did not make any grievance against the police or informed the Judge about the existence of such bail order. It is also stated that if the Applicant or the brother of the Applicant had knowledge that bail was granted to the Applicant, they would have definitely informed the concerned Judge when the Applicant was produced before him on 21st February : 20 : 1993. It is further asserted that if they (police) had wrongly arrested the Applicant, the brother of the Applicant would have immediately informed Advocate Ubale, who in turn, would have taken steps for release of the Applicant and to inform the concerned Judge when the Applicant was produced before him. Nothing of this kind had happened. It is stated that Advocate Ubale resides one furlong away from the Barshi Court. It is then stated that the ad-interim anticipatory bail order was received by the Police Station by post only on 23rd February 1993 and 24th February 1993, copy thereof was never produced before them earlier to that. It is stated that when the bail order was produced by Advocate Ubale on 22nd February 1993 and bond was furnished, immediately the Applicant was released. It is not necessary to presently advert to other aspects mentioned in this affidavit. 12. In addition to the aforesaid pleadings of the Respondent, there are two more affidavits filed by the Respondent before this Court. The first is sworn on 1st December 1999. Paragraphs 1 to 8 of this affidavit, refers to the stand taken in the : 21 : earlier affidavit. In the first part of Paragraph 9, reference is made to the pleadings already filed. What is relevant for our purpose is to note the stand taken in the latter part of Paragraph 9. It is mentioned as follows : "In other words, there was no occasion for me to get the knowledge of the said order. I further say and submit that as a prudent Officer, it was my duty to insist upon the certified copy of the bail orders which are passed by the competent court. I further say and submit that accordingly, at the time of arrest, the copy of order was not available. Similarly, the applicant accused was also aware of the fact that the certified copy of the order was not available with me. Therefore, he might have kept mum when he was produced before the J.M.F.C. at the time of remand. I further say and submit that the learned J.M.F.C. has asked the applicant accused as to whether he is having any complaint about the treatment given by the police authorities. Even at that time also, it was very much possible for the applicant accused to point out that the order passed in his favour. However, at no point of time no such complaint was made nor it was pointed out to me." 13. There is obvious departure in the stand taken by the Respondent in this affidavit. In that, for the first time, the Respondent has made out a case that he arrested the Appellant as : 22 : certified copy of the order was not produced before him