[Kangana Ranaut case] She need not to remain present before police.
[Kangana Ranaut case]She need not to remain present before police. Bombay high court order directing her to remain present before police is illegal.
The police is bound to record her statement at her residence, even if it is the direction of the High Court.
The Public Prosecutor Deepak Thakare and Adv. Rizwan Merchant compelled the High court to pass an order in contempt of the Supreme Court judgment violating fundamental rights of a woman and therefore both advocates and concerned police officer are liable for action under contempt and also disciplinary action for gross professional misconduct.
The statutory rights of the woman are violated by taking approval from the Bombay High Court.
Indian Bar Association's National co ordination committee head Adv Ishwarlal Agarwal is filing Contempt Petition before Supreme court for action against all involved in undermining the majesty and dignity of the rule of law and creating confusion against the binding precedents of the Supreme Court.
As per mandate of section 160 of Criminal Procedure Code and law laid down by the three Judge Bench of Supreme Court in Nandini Sathpathy’s (1978) 2 SCC 424, case the statement of woman has to be recorded at her residence.
Recently Supreme Court in the case of Roshani Biswas Vs. State 2020 SCC OnLine SC 881 had directed the police to record the statement of accused at her residence.
The Police Officer issuing unlawful summons were sentence for 3 months imprisonment by the Supreme Court in the case of Rajaram Vs State (1971) 3 SCC 945. It is observed;
“India Penal code sec. 341, 342 – Conviction of Police Officer for illegally Summoning a accused/witnesses – Held –The Police Officer cannot Summon a woman or a male under fifteen years of age – Such persons must be asked to attend interrogation at the place where they reside – This is mandatory provision of section 160 of Cr. P.C. – The Police Officer by calling the witnesses at police station kept them under wrongful restraint - The Police Officer is guilty under section 341 of I.P.C. – His conviction is proper.”
Justice Krishna Iyer in a landmark judgment in the case of Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 said as under;
Police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the whole-some proviso to Section 160 (1) of the Cr. P. C. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law.
Police cannot be the law unto themselves expecting others to obey the law. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law.
Before discussing the core issues, we wish to note our regret, in this case, at a higher level police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the whole-some proviso to Section 160 (1) of the Cr. P. C. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel, behind this legislative proscription which keeps juveniles and females from Police Company except at the former's safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatizing or suspicious provisions now writ across the Code.”
Earlier also the officer of Mumbai Police’s Economic Offences Wing, issued a summons to the accused lady Uzma Zakir Siddiqui. She approached Bombay High Court for anticipatory Bail. While granting interim Bail, the Single Judge of the Bombay High Court put the condition for attending police station. [ANTICIPATORY BAIL APPLICATION NO. 1906 OF 2016 order dated 27th OCTOBER, 2016.]
But she failed to attend the Police Station, therefore Police Officer issued summons asking her to remain present in the police station.
Aggrieved by this she filed a Writ Petition before Division Bench of high court challenging the summons issued by the Police. The Investigating Officer took the stand that they are acting as per the order of the Single Judge of the Bombay High Court.
Adv. Nilesh Ojha appearing for accused petitioner Uzma pointed out the law of Nandini Sathpathy’s (1978) 2 SCC 424 where it is clearly laid down that ‘even if it is order of the court, the police have to follow the provisions of Section 160 of Criminal Procedure Code and they have to record her statement at her residence.
Then Division Bench took a firm stand and was likely to impose cost upon the Mumbai Police. Then the police officer tendered apology and withdrawn the notice. The Division Bench recorded the statement of the officer in the case of Uzma Zakir Siddiqui Vs. State 2016 SCC OnLine Bom 15930 it is held as under;
“2. The learned counsel for the petitioner prays for ad-interim order. Mr. Yagnik, the learned APP having taken instructions from A.P.I. Mr. Himmat Jadhav, EOW Unit 7, Mumbai, however, makes a statement that the impugned notice would not be acted upon till the next date, provided the petitioner cooperates into investigation, gives permanent address of her residence to the Investigating Officer and will not leave the same without prior permission of the Investigating Officer.
3. Statement accepted.”
Recently the three Judge Bench of the Supreme Court in the case of Roshni Biswas Vs. State 2020 SCC OnLine SC 881 it is clear that the police should investigate on Phone/E-mail/Whatsapp and if required they has to go to the residence of the accused. Justice Chandrachud observed;
“We are, however, of the considered view that to require the petitioner at this stage to comply with the summons under Section 41A during the pendency of the proceedings before the High Court would not be justified in the facts as they have emerged in this case. Hence we grant an ad-interim stay against the implementation of the direction of the High Court requiring the petitioner to appear before the Investigating Officer at Ballygunge Police Station. This is subject to the condition that the petitioner undertakes to respond to any queries that may be addressed to her by the Investigating Officer and, if so required, attend to those queries on the video conferencing platform with sufficient notice of twenty-four hours. Mr Jethmalani, learned senior counsel appearing on behalf of the petitioner states that the petitioner would cooperate in all respects though after the order of 5 June 2020, no query was addressed to the petitioner, despite five months having elapsed since then. Mr R Basant, learned senior counsel submits that liberty may be granted to the Investigating Officer, if so required, to come to Delhi for the purpose of eliciting specific responses by way of clarification from the petitioner in regard to the alleged Facebook posts. Mr Jethmalani states that there is no objection to the Investigating Officer doing so with twenty-four hours’ notice. We accede to the request of Mr Basant.”
The order reads thus;
The another landmark judgment on the provision of Section 160 of Criminal Procedure Code is the case of Pusma Investment (P.) Ltd. and Ors. Vs. State 2010 Cri. L. J. 56, where Hon’ble High Court quashed the notice issued by the police observing as under;
“If the contention of the learned Additional Advocate General that under Section 160, the police officer making the investigation is not disabled from requiring the attendance of a witness residing beyond the local limits of his police station or adjoining station, is accepted, that will amount to ignoring the words "being within the limits of his own or any adjoining station". In my opinion, such interpretation is against all canons of interpretation. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute (see Ashwini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369). "In the interpretation of statutes", observed Das Gupta, J. in J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U. P., AIR 1961 SC 1170 (at page 1174), "the Courts presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect." The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. When the language of Section 160 is plain and unambiguous, this Court cannot plunge headlong into a discussion of the reason which motivated the Legislature into enacting this provision and took into consideration the hardship and inconvenience being caused to the investigating agency if they are not allowed to enforce the attendance of witnesses residing beyond their police station or adjoining police station. The rule of purposive construction cannot also be invoked in this provision. The correct principle, according to the learned author, G. P. Singh, J., is that after the words have been construed in the context and it is found that the language is capable of bearing only one construction, the rule in Heydon's case ceases to be controlling and gives way to the plain meaning rule. But the rule cannot be used to "the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own especially when "the language has no evident ambiguity or uncertainty about it. (see Principles of Statutory, Interpretation, 9th Edn. pp. 119-120). In the view that I have taken, the impugned notices are ultra vires the provisions of Section 160 of the Code of Criminal Procedure, 1973, and cannot be sustained in law. I have carefully gone through the case Anirudha S. Bhagat (2005 Cri LJ 3346) (supra) cited by the learned Additional Advocate General, but, with respect, I find myself unable to agree with view taken by the Division Bench of the Bombay High Court for the reasons already stated in the foregoing.
Division bench of bombay high Court while hearing the petition of Kangana in CRIMINAL APPLICATION ST. NO. 5028 OF 2020 in its order dated NOVEMBER 24, 2020 had made following observations;
" Learned counsel appearing for the applicants, on instructions of the applicants makes a statement that the applicants will appear before the Investigating Ofcer from Bandra Police Station, who is investigating into MECR No.3/2020 under Sections 153A, 295A, 124A read with Section 34 of the Indian Penal Code, on 8th January, 2021, in between 12.00 noon to 2.00 p.m. Statement accepted.
So far as ad-interim relief is concerned, Mr. Merchant, learned counsel appearing for the 2nd respondent vehemently opposed grant of any protection to the applicants. He submits that though three summons were issued to the applicants, the applicants did not honour the said summons and cause appearance before the Investigating Officer."
Here it is clear that the PP Deepak Thakare and Adv. Rizwan Merchant compelled the Court to pass an order against the binding precedent of Supreme Court which is violative of statutary rights of the woman.
For said act both the advocates are liable for action under contempt of court.
In Shiv Kumar Vs. Hukam Chand (1999) 7 SCC 467(F.B) (Vol. 5 Page 786), it is ruled that If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, . it is observed as under;
“13. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts-involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes this knowledge.”
In P. V. R. S. Manikumar v. Krishna Reddy 1999 CRI. L. J. 2010 it is ruled as under;
‘‘28. The counsel is endowed with noble duties. He has not only got duty towards his client, but also to his colleague. He has not only got duty towards the Court, but also towards society. Therefore, he should see the case of his client conducted fairly and honestly. The Advocates are responsible to the Court for the fair and honest conduct of the case. In matters of this kind, they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility.
29. According to the Supreme Court in Hari Shankar Rastogi v. Girdhari Sharma, AIR 1978 SC 1019 : (1978 Cri LJ 778), the Bar is not different from the Bench. They are the two sides of the same coin. Bar is an extension of the system of justice; lawyer is an officer of the Court. He is a master of an expertise, but more than that, kindful to the Court and governed by high ethics. The success of judicial process often depends on the service of the legal profession.
30. Normally, in dealing with the application for quashing, etc., while interim orders, the Court naturally takes the facts and grounds contained in the petition at their face value and the oral submission made by the counsel before this Court. Therefore, it may not be fair and proper on the part of the counsel to betray the confidence of the Court by making statements which are misleading.
31. Mr. N. R. Elango, the learned Government Advocate, who was asked to assist in this matter as Amicus Curiae, has cited the judgment of the Supreme Court in P. D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110, wherein it has been held that the members of the legal profession should stand free from suspicion and that nothing should be done by any member of the legal fraternity which might tend to lessen any decree of confidence of the public in the fidelity, honesty and integrity of the profession.
32. As the Apex Court would point out, giving a wrong legal advice cannot be said to be unethical, but giving an improper legal advice cannot be said to be ethical. When a client consults with a lawyer for his advice, the client relies upon his requisite experience, skill and knowledge as a counsel. In such a situation, the counsel is expected to give proper and dispassionate legal advice to the client for the protection of his interests.’’
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