Sulaikha and RahooF v. Viswanadh R. IPS; Sujith Das S. IPS; M. Shashidharan; Jinesh K.J.; Meenakshipuram Police Station, Palakkad District; Parappanangadi Police Station, Malappuram District

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 ``` ``` CON.CASE(C) NO.1649OF 2023 CRIME NO.178/2023 OF MEENAKSHIPURAM POLICE STATION, PALAKKAD ``` ``` AGAINST THE JUDGMENT DATED IN WP(CRL.) NO.539 OF 1986 OF HIGH COURT ``` ``` OF KERALA ``` ## **`PETITIONERS:`** - **`1 SULAIKHA, AGED 53 YEARS, W/O KUNHAVA, RESIDING AT PALLICHINTEPURAKKAL, PUTHAN KADAPPURAM, PARAPANANGADI, MALAPPURAM, KERALA, PIN - 676 303`** - **`2 RAHOOF, AGED 28 YEARS, S/O KUNHAVA, RESIDING AT PALLICHINTEPURAKKAL, PUTHAN KADAPPURAM, PARAPANANGADI, MALAPPURAM, KERALA, PIN - 676 303 BY ADVS.`** ``` P.M.MANOJ ; P.ANTO THOMAS ; HAMZATH ALI V.K. ``` ## **`RESPONDENTS:`** - **`1 VISWANADH R. IPS, AGE AND FATHER’S NAME NOT KNOWN TO THE PETITIONER, THE DISTRICT POLICE CHIEF, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA, PIN - 678001`** - **`2 SUJITH DAS. S. IPS, AGE AND FATHER’S NAME NOT KNOWN TO THE PETITIONER, SUPERINTEND OF POLICE- MALAPPURAM DISTRICT, DISTRICT POLICE OFFICE, UP HILL POST, MALAPPURAM, KERALA, PIN - 676 505`** - **`3 M.SHASHIDHARAN, AGE AND FATHER’S NAME NOT KNOWN TO THE PETITIONER, THE STATION HOUSE OFFICER, MEENAKSHIPURAM POLICE STATION, MEENAKSHIPURAM, PALAKKAD DISTRICT, KERALA, PIN - 642 103`** - **`4 JINESH K.J., AGE AND FATHER’S NAME NOT KNOWN TO THE PETITIONER, THE STATION HOUSE OFFICER, PARAPPANANGADI POLICE STATION, PARAPPANANGADI, MALAPPURAM DISTRICT, KERALA, PIN - 676 303`** ``` SRI S.U.NAZAR – SPL.GOVERNMENT PLEADER ``` ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Cont.Case (C) No.1649 of 2023 ## **J U D G M E N T** ## G. Girish, J. Complaining the violation of the directions of the Apex Court in **D.K.Basu v State of West Bengal [AIR 1997 Supreme Court 610]** in connection with the arrest of the 2[nd] petitioner by the Meenakshipuram Police of Palakkad District, the petitioners who are mother and son, have approached this Court for initiating contempt proceedings against the police including District Police Chief, Palakkad. 2. The petitioners would allege that the 2[nd] petitioner was taken into custody by two police officers in uniform and four others in civil dress at about 6.15 p.m on 28.02.2023 while he was in his shop at Malappuram. The 1[st] petitioner is said to have complained before the 4[th] respondent-Station House Officer, Parappanangadi Police Station, but he allegedly refused to pay any heed. The 1[st] petitioner is also alleged to have lodged complaints before the District Police Chief, Malappuram, but of no avail. Thereafter, the 1[st] petitioner claims to have filed a writ petition before this Court on 31.03.2023 which was posted for report to 04.04.2023. On 04.04.2023, the above writ petition was disposed of by this Court on the basis of the submission of the Public Prosecutor that the 2[nd] petitioner was arrested and remanded in connection with Crime No.178 of 2023 of Meenakshipuram Police Station. It is the further 3 Cont.Case (C) No.1649 of 2023 contention of the petitioners that they could not get any relief from the Judicial First Class Magistrate, Chittoor, before whom the 1[st] petitioner complained against the illegal detention of the 2[nd] petitioner. Anyhow, the 2[nd] petitioner was released on bail on 06.06.2023 as per the order of this Court in B.A.No.3799 of 2023. The petitioners would allege that the respondents kept the 2[nd] petitioner in illegal custody from 28.03.2023 to 02.04.2023 in violation of the directions of the Apex Court in **D.K.Basu** (supra). It is stated that the petitioner who was picked up from his shop at about 6.30 p.m on 28.03.2023, was taken before the 1[st] respondent at about 1.00 a.m on 29.03.2023 and detained in a building said to be the office of the 1[st] respondent till 8.30 p.m on 30.03.2023. Thereafter, the 2[nd] petitioner was allegedly taken to the office of the 3[rd] respondent at Meenakshipuram and detained there till 11 a.m on 31.03.2023. From there, the 2[nd] petitioner was alleged to have been taken again to the 1[st] respondent’s office at Palakkad and detained there till 9 p.m. During that time, the respondents 1 and 3 are alleged to have compelled the 2[nd] petitioner to withdraw the Habeas Corpus writ petition instituted by his mother in connection with his missing. It is the further allegation of the 2[nd] petitioner that after his detention at the office of the 3[rd] respondent at Meenakshipuram till 3.00 p.m on 01.04.2023, he was again taken to the 1[st] 4 Cont.Case (C) No.1649 of 2023 respondent’s office and detained there till 8 p.m, and subjected to compulsion and threat to withdraw the Habeas Corpus writ petition. When the 2[nd] petitioner refused to accede, he is again said to have been taken to the Meenakshipuram Police Station and kept in the lock-up. It is thereafter that the 2[nd] petitioner is said to have been produced before the Judicial First Class Magistrate, Chittoor by about 1 p.m on 02.04.2023. It is thus alleged that the respondents wilfully flouted the directions of the Apex Court in **D.K.Basu** (supra) and kept the 2[nd] petitioner in illegal custody violating his constitutional rights. 3. All the respondents were represented by Senior Government Pleader. 4. The 3[rd] respondent filed affidavit which is summarised as follows: The 2[nd] petitioner is a person with criminal background and involved in several crimes including gold robbery cases in Malappuram and Kozhikode Districts. The District Police of the above Districts were monitoring his day to day activities by opening Rowdy History Sheet against him at Parappanangadi Police Station. While so, the 2[nd] petitioner got involved in Crime No.178 of 2023 of Meenakshipuram Police Station registered in respect of the offences under Sections 120(B), 365, 394, 395, 212, 109, 118 and 201 I.P.C 5 Cont.Case (C) No.1649 of 2023 in connection with the robbery of gold ornaments worth Rs.30 lakhs in addition to currency notes worth Rs.23,000/- and a mobile phone from the de facto complainant in that case who was travelling through Meenakshipuram-Koduvayoor-Palakkad inter-state highway in a passenger bus. The investigation in the aforesaid crime is said to have revealed that the 2[nd] petitioner who has been arraigned as accused No.13 in that crime, was an active participant in the conspiracy hatched by the accused before perpetrating the crime. It is stated that the petitioner had supplied his vehicle bearing Reg.No.KL-65 S 5992 to accused Nos.14 and 15 for co-ordinating the criminal activities in connection with the looting of gold from the de facto complainant in the aforesaid crime. The persons by name Arjun Ayanki and Anees Parappanangadi who were alleged to be the kingpins of the said crime, are said to have used the vehicle belonging to the 2[nd] petitioner for perpetrating the robbery. As regards the arrest of the 2[nd] petitioner, it is stated that he was arrested on 01.04.2023 at 11.00 hrs. and produced before the Judicial First Class Magistrate’s Court, Chittoor, on 02.04.2023 within the time frame of 24 hours. The allegation of illegal detention of the 2[nd] petitioner has been stoutly denied in the affidavit filed by 3[rd] respondent. According to the 3[rd] respondent, the 2[nd] petitioner was brought to the police station and interrogated on 28.03.2023. As 6 Cont.Case (C) No.1649 of 2023 there were contradictions in the statements given by the 2[nd] petitioner, he is said to have been released after giving AnnexureR3(a) notice under Section 41A of the Code of Criminal Procedure for his appearance on 29.03.2023. However, the 2[nd] petitioner allegedly did not turn up for interrogation on 29.03.2023 as required in Annexure-R3(a) notice. The 2[nd] petitioner is said to have thereafter appeared before the 3[rd] respondent on 30.03.2023 and subjected himself for interrogation. The 2[nd] petitioner allegedly did not give satisfactory and vindicatory replies to the questions put to him about the use of his vehicle by the prime accused of that crime, and did not explain how the mobile phone number of another accused happened to be there in the R.C. document of his vehicle. Finding that, the 2[nd] petitioner has to be further interrogated, the 3[rd] respondent is said to have released him on that day after giving Annexure-R3(b) notice under Section 41A of the Code of Civil Procedure, directing his appearance on 31.03.2023. On 31.03.2023, the 2[nd] petitioner is said to have appeared for interrogation, but he allegedly failed to disclose the particulars related to that crime. Thus, the 2[nd] petitioner was said to have been allowed to go after serving Ext.R3(c) notice under Section 41A of the Code of Criminal Procedure, directing his appearance again on 01.04.2023. Thereupon, the 2[nd] petitioner allegedly desisted to leave the 7 Cont.Case (C) No.1649 of 2023 Meenakshipuram Police Station, stating his inconvenience to travel home to Malappuram and to come back again on the very next day, and opted to stay in the Police Station premises. On the next day, that is on 01.04.2023, the 2[nd] petitioner was said to have been arrested at 11 hours and produced before the Judicial First Class Magistrate, Chittur on 02.04.2023, within the timeframe of 24 hours. The learned Magistrate is said to have remanded the 2[nd] petitioner to judicial custody, after complying with the legal formalities. The 2[nd] petitioner was attempted to be served on his wife Smt.Mehruba through Parappanangadi Police Station, but she allegedly refused to accept the notice. Subsequently, the 3[rd] respondent as well as the 2[nd] petitioner are said to have spoken to the wife of the 2[nd] petitioner over mobile phone to the mobile number of 8138813581 held by her. The arrest intimation of the 2[nd] petitioner is also said to have been given to advocate Mr.Mohandas of Chittur Legal Services Committee, in accordance with Early Access to Justice protocol, for providing legal assistance. Thus, it is contended by the 3[rd] respondent that, there was no illegal detention of the 2[nd] petitioner, and that the arrest of the 2[nd] petitioner and the subsequent procedures were contemplated, strictly in accordance with law. The 3[rd] respondent would further contend that the CDR of the mobile phone of the 2[nd] 8 Cont.Case (C) No.1649 of 2023 petitioner would disclose as many as 47 incoming/outgoing calls during the period from 28.03.2023 to 01.04.2023, which would disprove the allegation of his illegal detention during the above period. The 3[rd] respondent would also state that the petitioners have filed this writ petition to try whether he could escape from the criminal liability attributed against him in Crime No.178 of 2023 of Meenakshipuram Police Station, and to degrade the morale of the respondents. 5. The 1[st] petitioner filed an objection in the form of affidavit countering the averments in the affidavit filed by the 3[rd] respondent. According to the 1[st] petitioner, the contention of the 3[rd] respondent about the release of the 2[nd] petitioner on 28.03.2023, 30.03.2023 and 31.03.2023, after questioning, is totally false, and that, he was infact kept under wrongful detention during the above period. The 1[st] petitioner would further contend that the CCTV footages at the premises of the offices of the respondents and the Meenakshipuram Police Station, are to be subjected to scrutiny for finding the falsity of the contentions raised by the 3[rd] respondent. It is also stated by the 1[st] petitioner that the call data records and tower location of the 3[rd] respondent are to be analysed for establishing her allegation about the wrongful detention of the 2[nd] petitioner. The 1[st] petitioner would allege that Annexures-R3(a), R3(b) and R3(c) documents are 9 Cont.Case (C) No.1649 of 2023 forged records. She would further allege that the mobile phone of the 2[nd] petitioner was taken into custody by the 3[rd] respondent, immediately after his detention on 28.03.2023, and hence, the calls said to have been made to and from the mobile phone of the 2[nd] petitioner, are done by the respondents to create evidence. 6. Having regard to the nature of the allegations levelled by the petitioners, the remand report of the 2[nd] petitioner and the remand order passed by the Judicial First Class Magistrate, Chittur at 9.50 a.m. on 02.04.2023, were subjected to scrutiny. It is seen from the proceedings of the learned Magistrate at the time of remand of the 2[nd] petitioner on 02.04.2023 that specific questions were put to the 2[nd] petitioner by the Magistrate, as to whether he has got any complaints of ill-treatment from the Police and also whether he had received legal aid after his arrest. The 2[nd] petitioner is seen to have answered in the negative to the first question, and in the affirmative to the 2[nd] question. The remand order of the learned Magistrate would further reveal that the 2[nd] petitioner had made a complaint, after the completion of the remand procedures, that he wanted to have bath and sufficient food. Accordingly, the Magistrate is seen to have issued the direction to provide sufficient food to the 2[nd] petitioner and to make available facilities for his bath at the Special Sub Jail to which he was remanded. 10 Cont.Case (C) No.1649 of 2023 7. Annexures-R3(a) to R3(c) documents would reveal that the 2[nd] petitioner was released after interrogation on 28.03.2023, 30.03.2023 and 31.03.2023. True that, the petitioners have raised the allegation that the above notices under Section 41A of the Code of Criminal Procedure, are forged records created by the Police Officers. But, the contention of the petitioners in the above regard sans credibility due to the reason that the 2[nd] petitioner did not prefer any complaint before the learned Magistrate about his illegal custody, when he was produced for remand on 02.04.2023. There is absolutely no reason to think that the learned Magistrate might have acted hands in glove with the Police and refused to record the complaint of illegal detention raised by the 2[nd] petitioner. 8. Taking into account of the above aspect regarding the omission on the part of the 2[nd] petitioner to prefer any complaint before the learned Magistrate, at the time of his remand, about his illegal detention by the Police, especially in the context of Annexures-R3(a) to R3(c) notices, and Annexure-R3(d) arrest memo, Annexure-R3(e) inspection memo, Annexure-R3(f) communications to the Taluk Legal Services Committee, Chittur, for rendering legal aid to the 2[nd] petitioner, and also Annexure-R3(g) communication from the Inspector of Police about the call details of the mobile phone used by the 2[nd] petitioner during the relevant 11 Cont.Case (C) No.1649 of 2023 period, it is not possible to conclude that the 2[nd] petitioner was kept in illegal custody by the respondents from 28.03.2023 to 02.04.2023 as alleged in this petition. 9. The learned counsel for the petitioners would contend that Exts.R3(a) to R3(c) notices under Section 41A Cr.P.C are fabricated documents created by the respondents when they came 1[st] petitioner before this Court and that the signatures purportedly affixed by the 2[nd] petitioner in the above documents are manifestly forged signatures. To substantiate the above challenge, the petitioners would contend that a perusal of those signatures as well as the signature purportedly affixed by the 2[nd] petitioner in Ext.R3(d) arrest memo and R3(e) inspection memo would reveal that those signatures are apparently dissimilar. It is not possible to accept the argument of the learned counsel for the petitioners in the above regard since the chances of the arrestee deliberately putting dissimilar signatures in the relevant records relating to arrest, as measures in advance to defend the case, cannot be ruled out. This is especially so when the arrestee is involved in so many cases like that of the 2[nd] petitioner herein. 10. The learned counsel for the petitioners would contend that evidence pertaining to the illegal detention of the 2[nd] petitioner 12 Cont.Case (C) No.1649 of 2023 in police custody could be adduced in the further course of this contempt proceedings. It is further argued that the CCTV footages from the police stations and offices concerned, and the tower locations and call particulars of the mobile phones used by the respondents, if brought-forth during enquiry, would establish the case of the petitioners. 11. It is not possible to accept the argument of the learned counsel for the petitioners in the above regard since the proceedings relating to civil contempt of court could be initiated only upon prima facie satisfaction about the wilful disobedience on the part of the alleged contemnors arraigned as respondents in the petition. As far as the present case is concerned, the records available are not capable of prima facie showing that the respondents acted in violation of the directions of the Apex Court in connection with the arrest and detention of the 2[nd] petitioner. This is especially so, in view of the fact that the 2[nd] petitioner who was allegedly kept under illegal detention by the respondents, did not choose to prefer a complaint in the above regard, at the first opportunity, when he was produced before the learned Magistrate for remand. 12. For the above reasons, we are not inclined to allow the request of the petitioners to proceed against the respondents under the relevant provisions of the Contempt of Courts Act, 1971. 13 Cont.Case (C) No.1649 of 2023 In the result, the contempt case is dismissed with the observation that there are no sufficient grounds to proceed against the respondents. **Sd/-** **Sd/G. GIRISH, JUDGE** jsr/vgd 14 Cont.Case (C) No.1649 of 2023 ## **`APPENDIX OF CON.CASE(C) 1649/2023`** ## **`PETITIONERS’ ANNEXURES`** ``` ANNEXURE 1A SCREEN SHOT OF THE VIDEO FOOTAGE OF THE INCIDENT TAKEN BY THE STAFF OF THE 2ND PETITIONER'S SHOP ON 28.03.23 AT 6.24 P.M. ``` ``` ANNEXURE 2A TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 2ND RESPONDENT DISTRICT POLICE CHIEF MALAPPURAM BY THE 1ST PETITIONER DATED 29.03.2023 ANNEXURE 2(A)A TRUE COPY OF THE EMAIL COMMUNICATION OF THE 1ST PETITIONER TO THE 2ND RESPONDENT DATED 29.03.2023 ANNEXURE 3A TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 4TH RESPONDENT SHO PARAPPANANGADI BY THE 1ST PETITIONER DATED 29.03.2023 ANNEXURE 3(A)A TRUE COPY OF THE EMAIL COMMUNICATION OF THE 1ST PETITIONER TO THE 4TH RESPONDENT DATED 30.03.2023 ANNEXURE 4A TRUE COPY OF THE JUDGMENT IN WRIT PETITION (CRL.) NO. 333/2023 DATED 04.04.2023 ANNEXURE 5A TRUE COPY OF THE INSTRUCTION DATED 04/04/2023 OF SHO, PARAPPANANGADI BEFORE THE HONOURABLE HIGH COURT OF KERALA IN WRIT PETITION NO. 333/2023 ANNEXURE 6A TRUE COPY OF THE INSTRUCTION DATED 04/04/2023 OF SHO, MEENAKSHIPURAM SUBMITTED BEFORE THE HONOURABLE HIGH COURT OF KERALA IN WRIT PETITION NO. 333/2023 ANNEXURE 7A TRUE COPY OF THE NOTICE ISSUED TO THE 1ST RESPONDENT BY THE 1ST PETITIONER DATED 20.04.2023 ANNEXURE 8A TRUE COPY OF THE NOTICE ISSUED TO THE 2ND RESPONDENT BY THE 1ST PETITIONER DATED 20.04.2023 ``` 15 Cont.Case (C) No.1649 of 2023 ``` ANNEXURE 9A TRUE COPY OF THE NOTICE ISSUED TO THE 3RD RESPONDENT BY THE 1ST PETITIONER DATED 20.04.2023 ``` ``` ANNEXURE 10A TRUE COPY OF THE NOTICE ISSUED TO THE 4TH RESPONDENT BY THE 1ST PETITIONER DATED 20.04.2023 ``` ``` ANNEXURE 11A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT, DATED 06.06.2023 IN BAIL APPLICATION NO. 3799 OF 2023 ANNEXURE 12A TRUE COPY OF THE REPORTED JUDGMENT PUBLISHED IN AIR 1997 SC 610 AS D.K BASU VS. STATE OF WEST BENGAL ``` ``` ANNEXURE 13THE AFFIDAVIT SWORN BY THE 2ND PETITIONER NARRATING THE EVENTS BETWEEN 28.036.2023 AND 02.04.2023 FROM THE MEMORY OF THE 2ND PETITIONER, DATED 16.07.2023 ``` ``` ANNEXURE 14A TRUE COPY OF REPLY TO THE ANNEXURE 9, PREFERRED BY THE 3RD RESPONDENT, DATED 14.05.2023 ``` ## **`RESPONDENT ANNEXURES`** ``` ANNEXURE R3(A)A TRUE COPY OF THE NOTICE U/S41 A OF THE CRIMINAL PROCEDURE CODE WITH THE WRITTEN INSTRUCTION TO BE PRESENT ON THE NEXT DAY ON 29.03.2023 ``` ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 15A TRUE COPY OF REPLY TO THE ANNEXURE 10, PREFERRED BY THE 4TH RESPONDENT, DATED 12.05.2023 ``` ## **`RESPONDENT ANNEXURES`** ``` ANNEXURE R3(B)A TRUE COPY OF THE NOTICE U/S 41 A OF THE CRIMINAL PROCEDURE CODE WAS ISSUED TO HIM AGAIN DIRECTING TO APPEAR ON 31.03.2023 ANNEXURE R3(C)A TRUE COPY OF THE NOTICE U/S 41 A CR.PC TO HIM DIRECTING TO APPEAR AGAIN ON 01.04.2023 ``` 16 Cont.Case (C) No.1649 of 2023 ``` ANNEXURE R3(A)TRUE COPY OF THE NOTICE U/S 41 A OF THE CRIMINAL PROCEDURE CODE WITH THE WRITTEN INSTRUCTION TO BE PRESENT ON THE NEXT DAY ON 29.03.2023 ``` - **`ANNEXURE R3(B) TRUE COPY OF THE NOTICE U/S 41 A OF THE CRIMINAL PROCEDURE CODE WAS ISSUED TO HIM AGAIN DIRECTING TO APPEAR ON 31.03.2023`** - **`ANNEXURE R3(C) TRUE COPY OF THE NOTICE U/S 41 A OF CRIMINAL PROCEDURE TO HM DIRECTING TO APPEAR AGAIN ON 01.04.2023`** - **`ANNEXURE R3(D) TRUE COPY OF OF THE ARREST MEMO`** - **`ANNEXURE R3 (E) TRUE COPY OF THE INSPECTION MEMO`** - **`ANNEXURE R3(F) TRUE COPY OF THE INTIMATION TO DISTRICT LEGAL SERVICE AUTHORITY`** ``` ANNEXURE R3(G)TRUE COPY OF THE CALL DETAILS OF THE 2ND PETITIONER FROM 28.03.2023 TILL 01.04.2023 ``` ``` ANNEXURE R3(H)TRUE COPY OF THE FACEBOOK POST OF THE 2ND PETITIONER ```