IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC. APPLICATION NO. 6572 OF 2000 with CRIMINAL MISC. APPLICATIONS NOS. 6831 & 6832 OF 2001 in CRIMINAL MISC. APPLICATION NO. 6572 OF 2000 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE Y.B.BHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES- To all D.Js. with instructions to circulate to all subordinate judges. -------------------------------------------------------------- R.P. VAGHELA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 6572 of 2000 MR SB VAKIL, SR. COUNSEL as amicus curiae MR SN SHELAT, ADVOCATE GENERAL with MR KB TRIVEDI, ADDL. ADVOCATE GENERAL with MR AD OZA, PUBLIC PROSECUTOR for STATE MR PM THAKKAR, SR. COUNSEL with MR HS TOLIA for respondent no.3 MR RJ OZA, for respondent no.4 2. Criminal Misc.Application Nos. 6831 & 6832 of 2001 MR. ANMOL SHARMA for applicant MR. GIRISH PATEL, SR. COUNSEL for applicants -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE B.C.PATEL and MR.JUSTICE J.N.BHATT and MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE Y.B.BHATT Date of decision:01/02/2002 C.A.V. JUDGEMENT (Per : CHIEF JUSTICE MR DM DHARMADHIKARI) #. In these contempt proceedings initiated by the subordinate court, this Bench of five senior most Judges of this Court has been constituted because of the importance of the legal question referred to it by a Division Bench of this Court by order passed in Criminal Miscellaneous Application No. 6752 of 2000 on 11-12-2000. The main question that requires decision is whether High Court can take congnizance of contempt proceedings in this case or it is only the Supreme Court on its judicial side which can deal with the case. The other related question is whether in fact any contempt has been committed and whether the proceedings initiated are within limitation under Section 20 of the Contempt of Courts Act, 1971 and if contempt has been committed and the proceedings are within limitation, what is the gravity of the contempt and what punishment deserves to be imposed. #. On the basis of the affidavit filed by the alleged contemners the facts no longer in dispute are as under: #. On 11-02-2000 the Joint District and Addl. Sessions Judge, Bhavnagar addressed a letter directly to the Registrar of the Supreme Court of India and sent it to the Registrar of this High Court for communicating the same to the Supreme Court of India to take congnizance of the contempt which is alleged to have been committed of the Supreme Court in the course of criminal proceedings in his court. #. The facts reported in the said communication are that in Sessions Case No. 220 of 1998 in his Court, accused named Bharatkumar Amrutlal Maniyar was jointly tried for offence under Section 302 IPC with other co-accused was produced on 24-01-2000. According to the report of the Joint District and Sessions Judge, inside the court room as he saw the Constable carrying a handcuff in his hand, he questioned the accused person and the Constable Samantbhai Lakhabhai Chudasama, Buckle No. 10. After questioning them, the trial Judge prepared a report and obtained signatures of the accused, his advocate, the Constable concerned and the Public Prosecutor. The Constable (Samantbhai Lakhabhai Chudasama is before us as contemner) admitted that he had brought the under trial accused person handcuffed from jail to the court. On this incident in the opinion of the learned Trial Judge, the directions of the Supreme Court made from time to time in several decisions have been deliberately breached as before bringing the under trial accused in handcuff, no permission was taken either from the Magistrate or from the trial Judge. The learned trial Judge was more concerned with the repeated and regular breaches of the directions of the Supreme Court in the matter of handcuffing the under trial prisoners. In his report he states: "I have noticed that accused persons are handcuffed while being brought to the various Courts in Bhavnagar. Even though I had drawn the attention of the District Superintendent of Police by writing a letter to him in this regard, the practice of handcuffing the under trial accused persons without authorisation from the concerned Magistrate or Court continues. I have noticed that the practice of handcuffing under trial accused persons without authorisation from the Magistrate or Courts continues throughout the State of Gujarat despite specific directions of Hon'ble the Supreme Court. I have myself seen accused persons in handcuffed condition at the City Sessions Court in Ahmedabad and learnt that this happens daily. In all probability there will not be a single case where the Police authorities approached any Magistrate or Judge for permission to handcuff an accused. The Constables ought not be blamed since they adopt this practice under instructions from their superior officers. It would, therefore, be necessary to take appropriate action against the higher officers in the Police and concerned Departments of the Government of Gujarat. Accordingly, I request that this letter and the enclosed report may kindly be put up before the concerned Bench of Hon'ble the Supreme Court for taking appropriate action in this regard. I may suggest that notices may be served in this regard to the following parties: 1. State of Gujarat, Notice to be served to the Secretary, Home Department, Sachivalaya, GANDHINAGAR, Gujarat. 2. Director General of Police Gujarat State, AHMEDABAD, Gujarat. 3. District Superintendent of Police BHAVNAGAR, Gujarat. In my humble opinion, the practice of handcuffing the under trial accused persons in the State of Gujarat amounts to contempt of Hon'ble the Supreme Court. I, therefore, request that appropriate action be taken in this regard. Thanking you. Yours sincerely, Sd/- (R.P.Vaghela), Joint District Judge & Addl. Sessions Judge" #. From the record of the proceedings before us it does not appear that the Registrar of the Supreme Court placed the matter on the judicial side of the Supreme Court. The papers of the case were sent to the Registrar of this High Court by the Registrar General of the Supreme court with report as under which are contents of his letter dated 26-04-2000:- "Sir, Please refer to your letter No. 2605/92 dated Nil forwarding therewith the letter dated 11th February, 2000 of Shri Ramesh P. Vaghela, Joint District Judge and Additional Sessions Judge, Bhavnagar. The above matter was placed before the Hon'ble competent authority. I have been directed to inform you that in this respect the High Court being competent to take the action in this matter in view of the general directions of this Court in Judgment dated 1st May, 1995 passed in Writ Petition (Civil) No. 22 of 1995 entitled "Citizens for Democracy through its President Versus The State of Assam & ors." and there was no need to forward the same to this Court. In view of the above, your letter along with annexures is, therefore, returned herewith for appropriate action at your end. Please acknowledge receipt. Yours faithfully, Sd/- 26-04-2000 (L.C. BHADOO) Encl: As above" #. It is left to be guessed by this Court whether the Registrar General had placed the papers before the Chief Justice of India when he refers to placing of papers before the Hon'ble competent authority. It is, however, clear that the matter was never placed on the judicial side of the Supreme Court. The decision in Citizens for Democracy through President v. State of Assam and others to which reference has been made by the Registrar General of Supreme Court is reported in (1995) 3 SCC 743 and in the matter of handcuffing of under trials and convicts for putting them under fetters, the Supreme Court held that handcuffs and fetters are not to be placed on under trials and convicts as a matter of course as it is against human dignity. Such iron fetters or handcuffs can be imposed only under compelling circumstances and with prior permission of the Magistrate or concerned court. The relevant directions in that case contained in paragraphs 16 to 22 are required to be reproduced herein as it is only the alleged violation of these directions that has resulted into initiation of contempt proceedings against the Constable and the concerned Police Authorities from the rank of Superintendent of Police and higher-ups in this case:- "16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or under trial while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back. 17. Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner. 18. In all the cases where a person arrested by police, is produced before the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand. 19. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested. 20. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us. 21. We direct all ranks of police and the prison authorities to meticulously obey the above-mentioned directions. Any violation of any of the directions issued by us by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law. The writ petition is allowed in the above terms. No. costs. 22. Copy of this judgment be sent to Government of India, Ministry of Home Affairs and to all the State and Union Territory Governments through Home Secretaries." #. The Division Bench in its order of reference dated 11-12-2000 quoted the above reproduced directions of the Supreme Court in paragraphs 16 to 21 in the case of Citizens for Democracy (supra). It appears that in making the reference to the Larger Bench of Five Judges, the Division Bench was of the view that in accordance with directions contained in Paragraph 21 of the Judgment of the Supreme court (supra) violation of any directions of the Supreme Court are liable to be summarily punished under Contempt of Courts Act by the Supreme Court since it is a contempt of the Supreme Court and its directions. According to the Division Bench, the matter being one of contempt of the Supreme Court and its directions, High Court will have no jurisdiction in the matter and this being a question of general importance, the whole case should be decided by the Larger Bench. After constitution of the Larger Bench on 07-09-2001 a notice to show cause was issued to the contemners, namely, Samantbhai Lakhabhai Chudasama, the concerned Constable, Jayeshkumar Kantilal Bhatt and Director General of Police and Inspector General of Police, Gujarat. All the alleged contemners have filed their affidavits explaining the facts and giving explanation. They have also offered their unconditional apology. We shall deal with their defences separately at appropriate stage. #. The first question that is required to be decided by this Larger bench is of the jurisdiction of this High Court to take cognizance of the alleged contempt for taking punitive action against the alleged contemners, if found to have committed contempt. The question is of general importance as it involves both the question of fundamental rights under Article 21 and the contempt power of the Court. For the first time in the case of Sunil Batra v. Delhi Administration AIR 1978 SC 1675 the Supreme Court held: "Fetters, especially bar fetters, shall be shunned as violative of human dignity within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture. 4. Where an under trial has a credible tendency for violence and escape a humanely graduated degree of 'Iron' restraint is permissible if only if-other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law. ... 5. xxx xxx 6. The discretion to impose 'irons' is subject to quasi-judicial oversight, even if purportedly imposed for reasons of security." #. One more important decision of the Supreme Court in the light of defence taken by the contemner constable in this case deserves to be specially taken note of for considering the charge of contempt. In the next case of Prem Shankar v. Delhi Administration AIR 1980 SC 1535 on handcuffing which is held to be violation of human rights of under trials and convicts as part of fundamental right of liberty under Article 21 of the Constitution of India, the Supreme Court laid down the law on handcuffing as under:- "We clearly declare - and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jailwarder - that the rule regarding a person in transit between prison house and Court house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other `irons' treatments and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment." ##. From the underlined portion of the observations of the Supreme Court what is to be noted is that handcuffing is not totally banned, but it is directed to be resorted to by the escort party of the under trial or convict only in case of extreme necessity for which there will be judicial supervision and scrutiny. It is clear from the observations quoted and underlined above that where handcuffs are used against an under trial or convict the trying judge or the Magistrate has to interrogate the prisoner and the officials and if necessary ask them to explain their conduct. The officers and escort party can explain their conduct before or after the use of handcuffs. ##. In the case of Sunil Gupta vs. State of Madhya Pradesh (1990) 3 SCC 119, following its earlier decision, the Supreme Court made observations and directed as under: "On judicial order by a competent Court, that person comes within the judicial custody of the Court. Therefore, taking of a person from a prison to the court or back from Court to the prison by the escort party is only under judicial orders of the Court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and approve or disapprove the action of the escort party and issue necessary directions." ##. In Khedut Majdoor Chetana Sangath v. State of Madhya Pradesh and others AIR 1995 SC 31, the Supreme Court referring to its earlier pronouncements in the case of Prem Shankar Shukla (supra) and Sunil Gupta (supra) again expressed serious concern on the practice of police party in a routine manner of putting fetters or iron bars on the under trials and convicts and thus brazenly violate their fundamental human rights. The Supreme Court reiterated and condemned such action in the following words: "These two pronouncements constitute the law of the land. The plea of ignorance of the law only is stated to be rejected. What is worse in this case is the Magistrate behaving in this way. We are of the view that Magistracy requires to be sensitised to the values of human dignity and to the restraint on power. When it allows an inhuman conduct on the part of the police, it exhibits both the indifference and insensitiveness to human dignity and the constitutional rights of the citizens. There could be no worse lapse on the part of the judiciary which is the sentinel of these great liberties." ##. It is in the light of the above mentioned declarations of law and directions made by the Supreme Court on use of fetters and irons on the under trials and convicts that in the case of Citizens for Democracy (supra) (1995) 3 SCC 743 the directions which we have quoted in the earlier part of our judgment came to be issued with a further declaration as under: "We make it clear that the law laid down by this Court in the abovesaid two judgments and the directions issued by us are binding on all concerned and any violation or circumvention shall attract the provisions of the Contempt of Courts Act apart from other penal consequences under law. ..." ##. A survey of the above decisions of the Supreme Court clearly shows that Supreme Court noticed that despite a clear law laid down and declaration made by the Supreme Court regarding handcuffing, the police authorities continue to violate and defy the law. It is under these circumstances that the Supreme Court adopted a stern attitude and directed that handcuffing in violation of the law laid down by the Supreme Court will constitute contempt and can be summarily dealt with as contempt for punishing the offender. ##. The question argued before us at length for several days by the counsel appearing is whether disregard of the declarations of law and breach of the directions made by the Supreme Court would be punishable as contempt only by the Supreme Court or this High Court can also take cognizance of the same as the contempt is committed within its jurisdiction. It is clear that on the directions of the Supreme Court violation of the directions in the matter of handcuffing are to be dealt with "summarily under the Contempt of Courts Act". ##. The Contempt of Courts Act, defines `civil' and `criminal' contempt. The definition of `criminal contempt' in Section 2(c)(iii) includes "any act which interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner". An act of the police and the concerned authorities or the police which tend to interfere with the administration of justice or which amount to lowering down the authority of the Court is well covered within the definition of `criminal contempt' in Section 2(c)(iii). The acts complained of thus constitute `criminal contempt' under Section 2(c)(iii) as it has tendency to interfere and obstruct the administration of justice and it is also a `civil contempt' in the sense it disobeys the judgment and directions made by the Supreme Court. ##. In the instant case, as has been reported by the learned trial Judge, there has been repeated breaches of the directions of the Supreme Court in the matter of handcuffing the under trials during their transit from jail to court. These acts are not merely contempt of Supreme Court or of the trial court. They are contemptuous acts against the `court' as such in its generic sense. High Court as constitutional court under Article 215 of the Constitution is a court of record and has inherent right as such to punish for contempt of itself. It derives power to punish contempts of subordinate courts under Section 10 and 15(2) of the Contempt of Courts Act. The present case is both of criminal and civil contempt. Supreme Court undoubtedly has jurisdiction to deal with the matter, but since, the acts complained of amount to contempt of trial court, which was not approached for permission before putting fetters, it is a criminal contempt in the sense that authority of the court as such has been looked down upon or tried to be disregarded. The High Court certainly has power under subsection (2) of Section 15, on a report of criminal contempt by subordinate court to take cognizance of the contempt and punish the offender if the contempt is held to have been proved. We are not prepared to accept the arguments advanced on behalf of the contemners that the alleged contempt of handcuffing the under trial in transit from jail to court is not a contempt of the subordinate court as it was not committed in court and if at all proved it may be held to be mere breach of the directions of the Supreme Court which alone can take cognizance. As we have held above, the alleged act can be seen as an affront to the judicial system as a whole and the law declared by the Supreme Court. It is an act on behalf of the police authority with an attitude "we do not care". It is this cavalier fashion and contemptuous attitude of not obeying the law with regard to judicial administration that the act has to be viewed as a contempt of court in general, that is of the judicial system as such. It is definitely a contempt of court of the trial court as in the course of bringing an under trial in judicial custody the permission of the trial court was not obtained. It is not merely a violation of law laid down by the Supreme Court but an act of open defiance of the authority of the court and the rule of law. Such criminal contempt of the subordinate court can be dealt with by the High Court on the report of the former in accordance with Section 15(2) of the Contempt of Courts Act. This court should not, therefore, feel inhibited by the fact that the matter has not been sent to back to this Court by any order on the judicial side of the Supreme Court and it is only on administrative side that the Registrar General of Supreme Court has sent back the papers to us. In our opinion, the perception of law of the learned trial judge in treating the contempt to be one of Supreme Court is also not decisive when we have taken a view that the acts complained of by the police party and the police