A.P.Sahi - (1.) THIS contempt petition raises questions to be answered, keeping in view the recent amendments brought about in the Criminal Procedure Code, as would be referred to hereinafter, and also the scope and extent of the exercise of powers vested in this Court under Article 215 of the Constitution of India read with the provisions of Contempt of Courts Act, 1971. The applicants allege that they were detained unauthorizedly at Police Station Lar, District-Deoria, without following the procedure for arrest and in complete violation of the guidelines laid down by the Apex Court in Joginder Kumar's case, (1994) 4 SCC 260 : 1995 (3) AWC 1752 (SC) and further elaborated in the celebrated decision of D. K. Basu v. State of West Bengal, (1997) 1 SCC 416. The applicant alleges that he was detained in the night of 7/8.8.2005 and the applicant No. 2 was challaned under Section 151, Cr. P.C. in a manner which violated the aforesaid provisions, facts with regard to which have been stated in paragraphs 13 and 14 of this application. The applicant alleges that the opposite party Nos. 1 to 3 have, therefore, made themselves liable for contempt keeping in view the decision of the Apex Court referred to hereinabove.
(2.) THE opposite parties have filed their affidavit and have set up their defence denying the allegations and further that the applicant No. 2 had been arrested under Section 151, Cr. P.C. ; and that the applicants had also approached the police station and at their instance an F.I.R. has also been lodged. THE facts have been set out to indicate as to how the applicant No. 2 was arrested and then enlarged on bail. It is further alleged that the applicant No. 1 was never detained or arrested and, therefore, there was no violation at all so as to constitute any contempt as alleged by the applicants. Learned counsel for the applicant in the rejoinder on merits has urged that the entries made at the police station in the records clearly indicate that the guidelines framed in D. K. Basu's case have been violated and have not been complied with at all. This matter was taken up on 3.11.2006 on which date the Court raised certain queries and invited arguments for ascertaining as to whether an action for contempt can proceed in view of the recent amendments brought about in the Criminal Procedure Code through Act No. 25 of 2005. On the request of the Court, the Advocate General of State of U. P. Sri S. M. A. Kazmi assisted by Sri Arvind Kumar, learned Additional Chief Standing Counsel have also advanced their submissions throwing light on the issues raised in this contempt application. The prime issue which has come up for consideration is as to whether after the amendments that have been brought about in the Criminal Procedure Code, can this Court still proceed to take action for contempt for violation of the guidelines prescribed in D. K. Basu's case (supra).
(3.) SRI P. K. Singh, learned counsel for the applicant, has invited the attention of the Court to the amendments brought about in the Criminal Procedure Code and has urged that the said amendments are insufficient and do not contain all the provisions as indicated in the guidelines framed by the Apex Court in D. K. Basu's case. He, therefore, contends that the said decision still holds the field and any violation of the provisions contained therein makes one liable for contempt. With the able assistance of all the learned counsels, the facts that emerge are as follows. The Apex Court, while dealing with a case of an unauthorized detention in the case of Joginder Kumar v. State of U. P. and others (supra), laid down in paras 21 and 22 as under : "21. Then, there is the right to have someone informed, that right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56 (1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police-Rechard Clayton and Hugh Tomlinson; p. 313). That section provides : "[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there." These rights are inherent in Articles 21 and 22 (1) of the Constitution and require to be recognised and scrupulously protected, for effective enforcement of these fundamental rights, we issue the following requirements : 1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. 2. The police officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. 22. The above requirements shall be followed in all case of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals." ;