IN THE COURT OF SMT. PRATIBHA RANI,
DJIII CUM I/C ASJ (WEST), DELHI
***
M No. 12/09
D.N. Joshi, Advocate & Anr.
..........Petitioners
Versus
Sh. Sharad Aggarwal, I.P.S. & Ors.
.........Respondents
****
M No.3/2010
Smt. Meena Sen & Anr.
..........Petitioners
Versus
Smt. Damini & Anr.
.........Respondents
****
ORDER
An application under Sec. 12 of Contempt of Courts
Act 1971 for initiating contempt proceedings against the
respondents has been filed by Sh. D.N. Joshi and Daya Ram
Badalia, Advocates. During the pendency of this application,
another application was filed by Smt. Meena Sen and her
husband Sh. Ramesh Chandra Sen with identical prayer and
this application was also ordered to be put up with connected
matter.
2. In the present case, the short question involved iswhether arrest of Deepak Sen (husband), Ramesh Chand Sen
(fatherinlaw) and Smt Meena Sen (motherinlaw) on
10.8.2009 in FIR No.122/09 under Sec.406/498A/34 IPC, PS
Tilak Nagar pending hearing of application for anticipatory bail,
was justified. In the instant case, though the permission to
arrest the main accused i.e. the husband was obtained on
17.6.2009 but no arrest was made and permission to arrest the
collateral accused was obtained from the DCP on 7.8.2009 and
the main accused as well as the collateral accused have been
arrested on 11.08.2009 just a day before settlement/hearing of
the anticipatory bail application by this Court.
3. Perusal of record reveals that the application for
anticipatory bail was filed on 30.6.2009. on 1.7.2009 Sh. R.S.
Goswami, Advocate for complainant Smt. Damini Chawla
appeared in Court. Counsel for the complainant took the
initiative and Applicants agreed to have meeting in the office of
Counsel for the complainant on 8.7.2009 and application for bail
was adjourned to 10.7.2009. On 10.7.2009 the Court directed
both the parties to appear before Mediation Cell, Tis Hazari
Courts on 14.7.2009 and bail application was adjourned to
17.7.2009. The matter could not be settled in Mediation Cell
but at the request of the parties, to make further efforts for
settlement, the hearing of bail application was adjourned to
4.8.2009 and then to 12.8.2009.
4. In the meantime all three above accused were
arrested on 11.8.2009.
5. In reply to application for contempt of Court, Sh.Sharad Aggarwal DCP, Param Aditya – ACP, Inspector Satya
Dev Dahiya and ASI Joginder Singh Rathi all have shown a
defiant mood that they did nothing wrong in arresting the
accused persons as there was no protection from Court. They
have raised all possible technical objections such as non
compliance of Order 27A CPC, Section 140 of D.P. Act and
Sec.80 CPC without realising that Order 27 CPC and Section
80 CPC applies to Civil Court and not Criminal Court. Section
140 of D.P. Act applies to acts done in discharge of duties and
not acts done in violation of law.
6. On merits, I may mention that power to arrest and
justification of arrest are two different things. The power must
be exercised sparingly. This is more so in case of matrimonial
disputes which are defiant. In such cases arrest may add to the
agony of parties and spoil the chances of reconciliation. That is
why order No.330/2007 dated 8.11.2007 was issued by
Commissioner of Police, restructuring powers to arrest in such
cases. In the case Chander Bhan Vs. State 151 (2008) DLT 691
Hon'ble High Court of Delhi laid down guidelines for arrest in
such cases. But all those were put on a side in this case.
7. Though the IO took permission to arrest but copies
thereof placed on record show that they are empty formalities.
The sanctioning authority did not care to see and find out how
the proceedings were going on, whether there was any
prospect of settlement. It did not call the complainant or her
counsel to find out if complainant was serious in pressing for
arrest of accused when hearing was listed for 12.08.2009 for settlement/arguments on anticipatory bail application. It granted
permission in perfunctory manner as if permission is to be
granted in each and every case merely on being asked. The
order is as short as 'As Proposed”. This defeated the very
purpose with which administrative instructions were issued by
Commissioner of Police and Judicial guidelines were laid down
by Hon'ble High Court.
8. The sanctioning authority did not bother to see that
if bail has not been granted, it had not been dismissed also and
efforts for settlement by both the parties was a continuous
process and date was already fixed for settlement/arguments.
After all there must have been some cogent reasons for
adjourning the bail application. The sanctioning authority ought
to have tried to find out those reasons. It did not apply its mind
to the facts of the case and acted blindly in granting permission
to arrest. This speaks volumes about how irresponsible the
DCP must have been acting in matters which are not pending
before Court.
9. The persons arrested were senior citizens one of
whom was lady. They had status in society. One of them was
arrested from his office in Jodhpur, Rajasthan. The lady was
arrested from School, she is operating, in front of her students.
The arrest caused immense damage to them.
10. What is more painful is that Sanctioning Authority
has not realised even now that matter has already been settled.
First motion for divorce by mutual consent was recorded on
18.1.2009 and petition for quashing FIR was filed in the Hon'ble High Court in November, 2009.
11. Ld. Counsel for the petitioner has relied up on Arts
and Commerce College, Pen, District Raigad Vs. State of
Maharashtra & Ors. 1994 Cri.L.J. 172; Km. Shakuntala & Ors.
Vs. The State of U.P. & Ors. 1996 Cri.L.J. 1774; Tapan Kumar
Mukherjee Vs. Sri Heromoni Mondal & Anr. AIR 1991 SC 281;
In re Sanjiv Datta & Ors. 1995 Cri.L.J. 2910; Ms. Sophy Kelly
and Anr. Vs. Chandrakant & Ors. AIR 1999 SC 1042; Afzal &
Anr. Vs. State of Haryana & Ors. 1996 Cri.L.J. 1679; Union of
India & Ors. Vs. Subedar Devassy PV AIR 2006 SC 909;
Tukaram etc. Vs. Santosh Mahadeorao Sayam & Ors. 1995
Cri.L.J. 57; Sudhakar Mahadeorao Kawale Vs. State of
Maharashtra & Anr. 1994 Cri.L.J. 735; T.M.A. Pai Foundation &
Ors. Vs. State of Karnataka & Ors. 1995 Cri.L.J. 3220; and
Bank of Baroda Vs. Sadruddin Hasan Daya & Anr. (2004) 1
SCC 360 in support of his contentions that all the respondents
are liable to be punished for committing the contempt by
arresting the Applicants during pendency of the bail application.
12. In the the case Chander Bhan & Anr. Vs. State151
(2008) DLT 691, Hon'ble Mr. Justice Kailash Gambhir while
expressing serious concern on the issue involved observed that
what is not comprehended by young minds while invoking the
provisions of the likes of Sections 498A and 406 of IPC is that
these provisions to a large extent have done incalculable harm
in breaking matrimony of the couples. It has been further
observed that despite the western culture influencing the young
minds of our country, still it has been seen that Indian families value their own age old traditions and culture, where, mutual respect, character and morals are still kept at a very high pedestal. I would like to refer to paras 10 and 1 of the report
which is as under :
“10. It has been noticed in diverse cases,
where the brides and their family members in
litigation find the doors of conciliation shut from
the side of groom and his family members only on
account of there having suffered the wrath of
Police harassment first at the stage when matter
is pending before Crime against Women Cell and
thereafter at the time of seeking grant of
anticipatory or regular bail and then the ordeal of
long drawn trial.
11. Daily, matters come before this Court
seeking bail and for quashing of FIRs registered
under Section 498A/406 of the IPC. This Court is
of the view that it is essential to lay down some
broad guidelines and to give directions in such
matters in order to salvage and save the institution
of marriage and matrimonial homes of the
couples.”
13. Reverting to the facts of the present case, I am of
the considered view that the directions given above by Hon'ble
High Court of Delhi have been violated by the respondents.
The Sanctioning Authority is trying to justify its action. This
shows that it has scant regard for process of law and decision
of Hon'ble High Court. I find it a fit case for informing
Commissioner of Police as to how his subordinates are working.
I hope that the Commissioner of Police would personally look
into the matter and take strong action against defiant officers
under intimation to undersigned.
It would also be appropriate to bring this matter to the notice of
Hon'ble High Court about the insensitive attitude of the senior
police officers while dealing with such matters in flagrant
violations of the directions of Hon'ble High Court. Hence a copy
hereof be sent to the Registrar General, High Court of Delhi for
being placed before Hon'ble Mr. Kailash Gambhir, Judge, High
Court of Delhi whose Lordship showed utmost concern about
the matter and took initiative of laying down detailed guidelines
for all concerned. The applications stand disposed of
accordingly.
Announced in the open Court
24.4.2009 ( PRATIBHA RANI )
DJIIIcumI/c ASJ(W)/Delhi