RAJDEEP SARDESAI &OTHER MEDIA VS STATE OF A.P -RAJIV TRIVEDI IMPLICATION-SOHRABUDDIN ENCOUNTER CASE -APPEAL DISMISSED

RAJDEEP SARDESAI&OTHER MEDIA HOUSES VS STATE OF A.P-RAJIV TRIVEDI IMPLICATION-SOHRABUDDIN ENCOUNTER CASE-APPEAL DISMISSED.

Facts in Nutshell : Rajiv Trivedi,[then]Additional Commissioner of Police (Crimes and SIT),Hyderabad, Andhra Pradesh,with regard to the Sohrabuddin encounter case was published by the appellants in the respective publications and was telecast on CNN-IBN.A representation was given by the second-respondent to the Andhra Pradesh State Government seeking previous sanction under Section 199(4)(b) of the Code of Criminal Procedure (in short ‘Cr.P.C.’) for prosecution of the appellants for offences punishable under the provisions referred to supra. Accordingly, the previous sanction was accorded by the State Government vide G.O. Rt. Nos. 6581, 6582, 6583 and 6580 dated 27.10.2007 in  favour of the second respondent permitting him to file complaints against the appellants through the State Public Prosecutor before the appropriate court of law against the individuals connected with electronic and print media as hereinbelow:

a)Siyasat Urdu Daily: Sri Latif Mohammad Khanb)

b]CNN-IBN (English News Channelc)

c) Rajasthan Patrika (Jaipur) Hindi daily

d)The Deccan Chronicle English Daily

e)The Etemaad Urdu Daily

Hon'ble A.P High Court  Held: The order dated 29.4.2011 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Petition No. 1638 of 2008 and batch matters whereby, the High Court dismissed all the criminal petitions except Criminal Petition No. 7592 of 2007, which were filed against the order of  summoning in various complaints filed by the Government of Andhra Pradesh on behalf of the second respondent, as A.P H.C refused to quash the criminal proceeding ,hence ,this appeal before Apex court .

Hon'ble Supreme Court  Held that : "High Court of Andhra Pradesh in rejecting the petitions for quashing the initiation of criminal proceedings against the appellants under Section 482 of the Cr.P.C. is perfectly legal and valid, the same does not call for interference by this Court in exercise of its appellate jurisdiction as there is no substantial question of law framed in the appeals nor is there any miscarriage of justice for the appellants to interfere with at this stage"

Full Text of Judgement :

CRIMINAL APPEAL NO.857 OF 2012 

RAJDEEP SARDESAI ………APPELLANT

Vs.

STATE OF ANDHRA PRADESH & ORS. …RESPONDENTS

CRIMINAL APPEAL NO.852 OF 2012

J U D G M E N T

V. GOPALA GOWDA, J.

CRIMINAL APPEAL NO.853 OF 2012 ,CRIMINAL APPEAL NO.854 OF 2012,CRIMINAL APPEAL NO.855 OF 2012,CRIMINAL APPEAL NO.856 OF 2012,CRIMINAL APPEAL NO.858 OF 2012,CRIMINAL APPEAL NO.851 OF 2012,CRIMINAL APPEAL NO.850 OF 2012.

The present group of appeals is directed against the final common judgment and order dated 29.4.2011 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Petition No. 1638 of 2008 and batch matters whereby, the High Court dismissed all the criminal petitions except Criminal Petition No. 7592 of 2007, which were filed against the order of  summoning in various complaints filed by the Government of Andhra Pradesh on behalf of the second respondent. The following table would be apposite to clarify which appeal is filed against which criminal petition/complaint case:-

Crl. Appeal Nos. before this Court	Crl. Petns. arising from Complaint Nos.	Complaint filed for Defamation under Section (s)against appellants	Permission given for Filing complaint Vide Sanction Nos.
857/2012 (Rajdeep Sardesai v. State of A.P. & ors.) 850/2012 (Sidhartha Gautam v.State of A.P. & Ors.) 852/2012 (Swati Vashistha & Anr. v. State of A.P.& Ors.) 853/2012 (V.K. Shashikuamr v. State of A.P. & rs.) 855/2012 (Ahmed Ali Shaik & Anr. v. State of A.P.& Ors.) 856/2012 (Hemender Sharma &Ors. v. State of A.P.& Ors.)	Crl. P. Nos.1874, 1590, 1646 & 1638 of 2008 filed before High Court against CC No.1/2008 - reg.telecasting a news programme in CNN-IBN English News channel under the caption “20 minutes-Sohrabud din Inside Story” on 13.5.2007 at 1730 hrs.	199(2) Cr.PC before the CourtIV,Addl.Metropolitan SessionsJudge,Nampally Imposing charges Under Sections 499, 500 and 120B of IPC	G.O. Rt. No.6581 Dated 27.10.2007
Crl.A.Nos.854/2012 (Gulab Kothari & Ors. v. State of A.P. & Anr.) and 858/2012 (Hemender Sharma & Ors. v. State of A.P. & Ors.	Crl. P. No. 264 of 2008 before High Court against CC No.3/2008-reg. publication of news item in Rajasthan Patrika, Saturday Edn dated 12.5.2007under the Heading “Vanjara Par Kastha Phanda	199(2) r/w Sec. 200 Cr.PC before the Court of II Addl. Metropolitan Sessions Judge, Nampally ,imposing Charges under Ss. 499, 500, 501, 502 and 120B of IPC	G.O. Rt. No.6582 Dated 27.10.2007
Crl.A.851/2012 (Lateef Mohammad Khan v. State of A.P. & Anr.)	Crl. P. No.1252 of 2008 filed before High Court against CC No.24/2007-reg. publication of news items in Siasath Urdu Daily, dated 8.5.2007	199(2) r/w Sec.200 Cr.PC before the court of I Addl. Metropolitan Sessions Judge, Hyderabad imposing Allegations under Sections 499, 500, 501, 502 and 120B of IPC	G.O. Rt. No.6580 and Dated 27.10.2007

2. Brief facts of the case are stated hereunder:

A news item on various dates in the year 2007, allegedly making false implication against the second respondent-Rajiv Trivedi, Additional Commissioner of Police (Crimes and SIT), Hyderabad, Andhra Pradesh,with regard to the Sohrabuddin encounter case was published by the appellants in the respective publications and was telecast on CNN-IBN. A representation was given by the second-respondent to the Andhra Pradesh State Government seeking previous sanction under Section 199(4)(b) of the Code of Criminal Procedure (in short ‘Cr.P.C.’) for prosecution of the appellants for offences punishable under the provisions referred to supra. Accordingly, the previous sanction was accorded by the State Government vide G.O. Rt. Nos. 6581, 6582, 6583 and 6580 dated 27.10.2007 in  favour of the second respondent permitting him to file complaints against the appellants through the State Public Prosecutor before the appropriate court of law against the individuals connected with electronic and print media as hereinbelow:

a)Siyasat Urdu Daily: Sri Latif Mohammad Khan

b)CNN-IBN English News Channel

c)Rajasthan Patrika (Jaipur) Hindi daily

d)The Deccan Chronicle English Daily

e)The Etemaad Urdu Daily

(points (a)-(e) are hereinafter referred to as ‘individual print and electronic media’)

3. One of the above mentioned news items which was telecast on CNN-IBN English News channel under the caption “30 minutes- Sohrabuddin the Inside Story” on 13.5.2007 at 1730 hours, which is subject matter of CC No. 1 of 2008, is extracted hereunder for our examination:-

“Police sources say Vanjara and Pandian nabbed Kousarbai in Bidar with help from S.P. Rajiv Trivedi of the Hyderabad Special Investigation Unit……… Rajiv Trivedi provided cars with fake number plates in which Sohrabuddin was brought to Ahmedabad and then killed in a fake encounter.”

4. Pursuant to the above said sanction accorded by the State Government of Andhra Pradesh, the criminal proceedings were initiated by the State Public Prosecutor on behalf of the State of Andhra Pradesh against the appellants. The State of Andhra Pradesh represented by the State Public Prosecutor filed the complaints against the accused-appellants for the offences referred to supra. The Additional Metropolitan Sessions Judge before whom complaints were instituted by the State Public Prosecutor, has taken the cognizance of the offences alleged against the appellants and passed orders summoning them to appear before the Court for further proceedings in the respective cases.

5. Aggrieved by the summoning orders passed by the Additional Metropolitan Sessions Judge in C.C. No. 27 of 2007, C.C. NO. 3 of 2007, and C.C. No.24 of 2007, the appellants filed Crl. P. Nos. 7592 of 2007, 264 of 2008 and 1252 of 2008 under Section 482 of Cr.P.C. before the High Court of Andhra Pradesh, seeking to quash the same, urging various legal contentions.

6. The High Court after hearing all the above said petitions together, adverting to the previous sanction order accorded in favour of respondent No. 2 by the State Government under Section 199(4)(b) of the Cr.P.C., permitting the State Public Prosecutor to initiate criminal proceedings for the offences alleged against the appellants referred to supra and after dealing with the contentions with regard to the legality and validity of the said sanction orders read with the Rules and adverting to various judgments of this Court, allowed only Criminal Petition No. 7592 of 2007 (M.J. Akbar & Anr. v. The State of A.P.) and dismissed all other criminal petitions holding that the news telecast in the electronic media by CNN-IBN and other news items published in various newspapers of the appellants per se are integrally connected with the official discharge of duties of the second respondent and held that whether the same amounts to defamatory, libel or scandalous statements is a matter that has to be decided on the evidence to be adduced by the parties. The High Court further held that in the absence of any privilege to the broadcaster on par with Section 7 of the Press and Registration of Books Act, 1867, the appellants cannot claim to quash the criminal proceedings initiated against them and there was no merit to quash the said criminal proceedings against the appellants. Aggrieved by the common order of the High Court, these appeals are filed by the appellants raising certain substantial questions of law for consideration of this Court.

7. Learned senior counsel Mr. Guru Krishna Kumar appearing on behalf of the appellants in Criminal Appeal Nos. 850, 852, 853, 855, 856, 857 of 2012 has contended that the State Public Prosecutor cannot make a complaint under Section 199(2) of Cr.P.C. against an individual in respect of whom no sanction has been accorded by the State Government as required under Section 199(4) of the Cr.P.C.

8. It is further contended by him on behalf of the appellants that they have been summoned on the complaint instituted by the State Public Prosecutor on behalf of the second respondent on the basis of the previous sanction order accorded by the State Government under Section 199(4) of the Cr.P.C. for prosecuting the individual electronic and print media involved in the case on hand and not for the prosecution of any named individual in the said sanction order and therefore, there is no application of mind on the part of the State Government while according the previous sanction orders in favour of the second respondent to initiate criminal proceedings under the said provisions referred to supra against the appellants herein.

9. It is further contended on behalf of the appellants that the High Court has erred in dismissing the criminal petitions of the appellants and not quashing the criminal proceedings against the orders of summons passed by the Additional Metropolitan Sessions Judge after taking cognizance of the complaints filed by the public prosecutor against the appellants, which are not maintainable in law. It is contended by him that the High Court has also not considered the relevant fact that telecasting the story by the appellant is not in connection with discharge of public functions of the second respondent being a public servant and this aspect of the matter has not been dealt with by the High Court thereby, it has rendered the findings as erroneous in law and therefore, the same are liable to be set aside.

10. Further, it is contended by him that the High Court has failed to take into consideration an important aspect of the matter namely, the State Government while examining the representation submitted by the second respondent for according previous sanction as required under Section 199(4) of the Cr.P.C. and All India Services (Conduct) Rules of 1968, in his favour authorising the State Public Prosecutor to initiate criminal proceedings against the appellants does not reflect application of mind on the part of the State Government as they have failed to find out whether or not the comments made against the second respondent by the individual electronic and print media have got content which are defamatory, scandalous or libellous and whether the same warrant the State Government to permit such institution of criminal  proceedings against the appellants under Chapter XXI of the Indian Penal Code, 1860. Therefore, it is contended that the above explained reasons would show lack of application of mind on the part of the State Government to the facts presented to it and therefore, the impugned sanction order accorded by it in favour of the second respondent to initiate criminal proceedings against the appellants under the provisions of Cr.P.C. referred to supra is vitiated in law and is liable to be set aside.

11. Further, it is contended by the learned senior counsel that the High Court has also failed to take into consideration another relevant fact that the criminal complaints instituted by respondent No. 1-State Government against the appellants, is silent about their role in committing the alleged offence of telecasting/publishing comments and allegations against the second respondent which are allegedly defamatory, libellous and scandalous.

12. It is also contended on behalf of the appellants that the High Court has failed to appreciate that to arraign the appellants as the accused, the complainant ought to have made positive averments against them in the complaints and attributed a specific role to each one of them in committing the alleged offence,warranting initiation of criminal proceedings, the same  has not been done, therefore, the summoning order issued by the Metropolitan Sessions Judge and the complaints filed against the appellants by the State Public Prosecutor are not sustainable in law and are liable to be quashed. The learned senior counsel in support of his contentions has placed reliance upon the following judgments of this Court in the cases of Gour Chandra Rout & Anr. v. The Public Prosecutor, Cuttack[1]1, P.C. Joshi & Anr. v. The State of Uttar Pradesh[2] 2, Mansukhlal Vithaldas Chauhan v. State of Gujarat[3] and Urmila Devi v. Yudhvir Singh[4.]

13. Further, the learned senior counsel placing reliance upon Section 196(2) of Cr.P.C. contended that a specific sanction order is required to prosecute in respect of each person to initiate criminal proceedings under Section 120-B of I.P.C., the same has not been obtained by the second respondent. In support of this contention he placed reliance upon the judgment of this Court in the case of Madan Lal v. The State of Punjab[5].

14. Mr. Aruneshwar Gupta, the learned counsel appearing for the appellants in Criminal Appeal Nos. 854 and 858 of 2012, reiterated the aforesaid legal submissions made by Mr. Guru Krishna Kumar, the learned senior counsel on behalf of the appellants referred to supra. It is further contended by him in Criminal Appeal No. 854 of 2012 that it is evident from the notice dated 13.8.2007 that the sanction for the prosecution was sought against the Editor, News Reporter and Printer and Publisher of Rajasthan Patrika newspaper, however, no sanction was sought against the Appellant Nos.1, 2 and 3 in Criminal Appeal No. 854 of 2012 who are the Editor in Chief, Advisor and printer and publisher of the said newspaper. After perusal of all the documents and material on record, the State Government granted sanction only against the Editor of Rajasthan Patrika Newspaper (the appellant in Criminal Appeal No. 858 of 2012) by its order dated 27.10.2007, after proper application of mind. The application for grant of sanction against appellant Nos.1-3 who are the Editor in Chief, Advisor and Printer and Publisher was specifically rejected by the State Government, therefore, the criminal proceedings initiated against them is not valid in law.

15. It is further contended by him that since the respondents have not challenged the sanction accorded by the State Government dated 27.10.2007, authorising the criminal proceedings against the Editor and rejecting grant of sanction order against appellant Nos.1-3 in Crl. Appeal No.854 of 2012, the same has become final, therefore, the public prosecutor has no authority to file any criminal complaint against the appellants in Criminal Appeal No.854 of 2012 who are  the Editor-in-Chief, Advisor and Printer and Publisher of Rajasthan Patrika. He contended that what cannot be derived directly cannot be obtained indirectly by the process of court proceedings. He further placed reliance on the decision of this Court in the case ofJagir Singh v. Ranbir Singh and Anr.[6], contending that in the absence of sanction to prosecute a named person, the public prosecutor cannot file a complaint and the Trial Court has no jurisdiction to judicially review the sanction order and issue summons against those persons whose name do not specifically appear as accused in the order of sanction accorded by the State Government. It is further contended that this aspect of the matter has not at all been considered by the High Court even though the legal submission was made in this regard before it.

16. Both the learned counsel on behalf of the appellants contended that there must be valid and cogent material before the State Government for according previous sanction in favour of the second respondent permitting him to initiate criminal proceedings against the appellants. It is contended by them that the State Government should have examined the facts, allegations and names of the accused and then should have reasonably applied its mind to conclude whether or not the reputation of the second respondent while discharging his public function as a public servant was intended to be harmed. Only after such reasonable application of mind by the State Government to the facts placed before it, the sanction can be accorded by it in favour of the second respondent to initiate criminal proceedings and only then the court of sessions shall take cognizance of such offence in the criminal proceedings initiated against the appellants. This aspect of the matter has not been considered by the learned Judge of the High Court while passing the impugned Judgment. Therefore, the impugned judgment and order is vitiated in law and liable to be set aside.

17. It is further urged by the learned counsel on behalf of the appellants that the High Court has erroneously held that under the scheme of Section 199 of the Cr.P.C., the previous sanction is required against all such persons who have allegedly committed the offence and not necessarily against specific individuals in order to prosecute them for the offences committed against a person in respect of his conduct in the discharge of his public functions who at that time was a public servant employed in connection with the affairs of the Union or State. Therefore, it is contended on behalf of the appellants in Criminal Appeal No. 858 of 2012 that the criminal proceedings initiated by the first respondent on behalf of the  second respondent should have been confined to only against those persons named in the Government sanction order for the offences referred to supra.

18. Mr. Aruneshwar Gupta, the learned counsel for the appellants in Criminal Appeal Nos.854 and 858 of 2012 further contended that several investigations were carried out pursuant to the orders passed by this Court in the Sohrabuddin case and on 12.5.2007, a report was submitted by Ms. Johri which finds reference in judgment of this Court in the case of Rubabbuddin Sheikh v. State of Gujarat and Ors.7. The fact of the investigation by the CBI in Sohrabuddin’s case was in public domain and if that is published in the print media by the appellant (in Crl. A. Nos. 854 & 858 of 2012), the same cannot be made the basis of any defamation as it has referred to the judgment in theaforesaid case which is a public record.

19. It is also further contended by him that RajasthanPatrika is a subscriber of United News of India (UNI)which is one of the largest News Agencies in India,providing news to several news papers in India. The UNI published and broadcast the news item dated 12.05.2007and the appellants in Criminal Appeal No. 858 of 2012,being the Editor of Rajasthan Patrika got the same translated in Hindi and published it in their news paper which is allegedly defamatory to the secondrespondent. It is further contended by him that UnitedNews of India is the source and first broadcaster ofthe alleged defamatory news to its subscribers including the newspaper for which the appellant is the Editor, who acted and published in bona fide the alleged offending news believing it to be true and correct. Therefore, in the absence of any prosecution of UNI, the appellant cannot be prosecuted for the offence of defamation as the same is covered under the Explanation 3 of Section 499 of I.P.C. 20. It is further contended that freedom of expression demands that criminal defamation in relation to publication of news items and articles may not be invoked in all the cases but should be limited to only exceptional cases to redress the immediate harm done to the reputation of the individuals who have been defamed and shall not be allowed to be used as remedy to serve

the ulterior goal as the same will have a negative and damaging effect on the freedom of expression guaranteed to the press.

21. It is further contended by him that Section 499 of I.P.C. defines the offence of defamation as spoken or written, Section 501 of I.P.C. is for defamatory printing or engraving of defamatory matter and Section 502 of I.P.C. is for sale of printed or engraved substances containing defamatory material. Therefore, Section 499 of I.P.C. would cover the Editor while Section 501 will cover the Publisher and Printer and Section 502 of I.P.C. covers the seller. As the offences mentioned under Sections 501 and 502 of I.P.C. are specifically distinct offences which are against the Publisher and the Seller, therefore, the previous sanction order was granted in favour of the second respondent against the Editor of the Newspapers and rejected against the Printer and Publisher. Therefore, in these appeals, the appellants cannot be tried for the offences under Section 499, 501, 502 of I.P.C. with the aid of Section 120-B of I.P.C. as the liability of defamation is only limited to the Editor.

22. In Criminal Appeal No. 851 of 2012, Mr. Abhimanue Shrestha, the learned counsel appearing for appellant-Mr. Lateef Mohd. Khan, General Secretary, Civil Liberties Monitoring Committee, who has allegedly made certain false and baseless statements against the second respondent under the news item “Rajiv Trivedi-Hyderabad Ka Vanjara” “Fauri Bharkhast Karne Ka Mutalika” published on 8.5.2007 in Siyasat Urdu Daily, contended that the appellant is neither the Publisher nor the Seller of the said Urdu Daily, therefore, one would believe that he made such statements on the basis of the information through electronic and print media.

It is therefore, contended that in view of the nature of the allegations against the second respondent, the appellant who is the Secretary of the Civil Liberties Monitoring Committee made the above statements published in Siyasat Urdu Daily to make the public aware of the same. The alleged offences are not attracted against him as the allegations in the complaint do not constitute any of the offences under Sections 500, 501, 502 and 120-B of I.P.C. The learned counsel questioned the legality and validity of previous sanction accorded by the State Government in favour of the second respondent to prosecute the appellant in the said appeal by placing reliance on the decisions of this Court in the cases of Kartar Singh & Ors. v. The State of Punjab8 and R. Rajagopal & Anr. v. State of T.N. & Ors.9

23. On the other hand, Mr. P. Vishwanath Shetty, the learned senior counsel appearing on behalf of the State has sought to justify the sanction order authorising the Public Prosecutor to institute criminal proceedings against the appellants herein, the same was accorded after applying its mind to the facts stated in the representation given by the second respondent that the statements telecast and published in the electronic and print media by the appellants were defamatory and affected his reputation and the same were in connection with the discharge of his public functions as an IPS Officer. The State Government after applying its mind was satisfied that the reputation of the second respondent was harmed by printing and telecasting the defamatory statements by the appellants herein.Therefore, it accorded the sanction order under Section 199(4) of Cr.P.C. in favour of the second respondent to initiate criminal proceedings against the appellant, which provision does not speak of mentioning the names against whom the criminal prosecution has to be instituted by the State Public Prosecutor.

24.He has further contended that the learned Additional Metropolitan Sessions Judge, after applying his mind with regard to the allegations made against the appellants took cognizance of the matter and issued order of summons to the appellants to appear before the sessions court with their respective counter to the criminal proceedings initiated against them. The same was stalled by the appellants herein by initiating proceedings before the High Court and this Court. It is  contended by him that the challenge before the High Court has been rightly rejected after dealing with each one of the rival legal contentions urged in the Criminal Petitions filed by the appellants, which do not warrant interference by this Court in exercise of its appellate jurisdiction, as the appellants are required to face the trial in the proceedings initiated against them by respondent No. 1- the State Government.

25. Mr. Pappu Nageshwar Rao, the learned counsel appearing for the second respondent, sought to justify the sanction accorded in favour of the second respondent by drawing our attention to the provisions of Sections 132, 188, 196, 197, 199 of Cr.P.C. He sought to distinguish previous sanction provided under Section 194 and placed reliance upon the judgments of various High Courts in the cases of Master Girdhari  Lal, Printer & Publisher of Naya Bharat v. The State10, Pachhalloor Noohu v. Public Prosecutor11, Sant Lal v. Krishan Lal12 and B. Basavalingappa and Anr. v. V.Narasimhan13 in support of the proposition of law that previous sanction order by the State Government can be granted under Section 198B (3)(a)of the Code of Criminal Procedure, 1898, by any Secretary or authorisation of the Government in favour of a public servant to prosecute the persons who have committed offences of defamation against him. He further placed reliance upon Section 308 proviso 2 and Section 473 of Cr.P.C., regarding the limitation for sanction and Section 484 of Cr.P.C. regarding sanction saving clause to justify that the sanction accorded by the State Government to prosecute the appellants herein is perfectly legal and valid. He therefore urged that in view of the above, the sanction accorded by the State Government in favour of second respondent cannot be found fault with by the appellants and prayed for dismissal of these appeals.

26. We have heard the rival legal contentions urged on behalf of learned counsel for both the parties and answer the same by assigning the following reasons. With regard to the contention urged by learned senior counsel Mr. Guru Krishna Kumar on behalf of the appellants in Criminal Appeal No.857 of 2012 and connected appeals that the High Court has not considered all the issues raised before it in the criminal petitions filed by the appellants seeking for quashing of the criminal proceedings initiated against them, is wholly untenable in law for the reason that from perusal of the impugned order of the High Court, it is clear that the sanction was accorded by the State Government under the relevant Government order in favour of the second respondent. On examining the facts, circumstances and evidence on record, the previous sanction is accorded to launch necessary prosecution against the CNN-IBN channel, Siyasat Urdu Daily: Sri Latif Mohammad Khan, Rajasthan Patrika (Jaipur) Hindi daily, Deccan Chronicle English Daily and Etemaad Urdu Daily. By careful reading of the provision under Section 199 of Cr.P.C., read with the All India Services (Conduct) Rules, 1968, it provides that previous sanction must be accorded, authorising the initiation of criminal prosecution against the accused, however, the said provisions do not state that it is necessary to mention the names of each one of the accused who are alleged to have committed the offence in the same alleged transaction. Therefore, in the case on hand, when the previous sanction was accorded by the State Government against those who were responsible for the telecast/publication of the news both in electronic and print media which according to the second respondent damaged his reputation, it is not necessary for the State Government to separately issue sanction order against each one of the appellants, when they are all responsible for telecasting and publishing the said news item in the electronic and print media and also when the names of the said electronic and print media have already been mentioned in the said sanction order. Therefore, there is no merit in the contention urged on behalf of the appellants that their names have not been specifically mentioned in the said sanction order. The said contention is untenable in law and therefore, liable to be rejected. The same is accordingly rejected.

27. Further, the reliance placed by the learned counsel on behalf of the appellants upon the judgments of this Court referred to supra while according sanction in favour of the second respondent to initiate the criminal proceedings against the appellants the State Government has not applied its mind, this contention is also wholly untenable in law as the exercise of power by the State Government under Section  199 of Cr.P.C. is in the administrative and ministerial capacity and according of such sanction is as per the subjective satisfaction on the part of the State Government. The learned senior counsel on behalf of the appellants has placed reliance upon the judgments of this Court in the cases of Gour Chandra Rout & Anr. v. The Public Prosecutor, P.C. Joshi & Anr. v. The State of Uttar Pradesh and Mansukhlal Vithaldas Chauhan v. State of Gujarat (all referred to supra). With regard to the above referred cases, the first two cases have not dealt with the exercise of power under Section 199 of Cr.P.C., except stating the ministerial exercise of power by the State Government while exercising its power under Section 198B (3)(a) of Cr.P.C, 1898. In so far as the third case referred to supra upon which the reliance placed upon by the learned senior counsel on behalf of the appellants, the same is in relation to the previous sanction to be accorded by the State Government for the purpose of prosecution under the provisions of the Prevention of Corruption Act. Therefore, none of the above cases on which reliance has been placed by the learned counsel on behalf of the appellants have any relevance to the fact situation on hand.

28. Having regard to the scheme of the Protection of Civil Rights Act, 1955, the complainant-second respondent during the relevant point of time was the Police Officer in the services of the State Government and he cannot prosecute the appellants in a court of law without obtaining previous sanction from the State Government as contemplated under the aforesaid provisions of Cr.P.C. Therefore, in order to prosecute  the appellants, the second respondent made a representation to the State Government along with a petition with regard to initiation of criminal proceedings against the appellants under the provisions referred to supra in respect of which he has sought the sanction of the State Government. On appreciation of the same, the State Government in exercise of its administrative powers appreciated the facts of the matter, rightly applied its mind and accorded the sanction under Section 199(4) of Cr.P.C. in favour of the second respondent to initiate criminal proceedings under the provisions referred to supra against the appellants. The said sanction was accorded by the State Government after appreciating that the statements telecast/published by the appellants in the electronic and print media as well as the statement given by the appellant in Criminal Appeal No. 853 of 2012 in the Urdu Daily on the basis of which the news is published by its Editor, which are all statements defaming the second respondent while he was discharging his public function as a public servant. Therefore, the contention on behalf of the appellants that there was no application of mind on the part of the State Government in according the said sanction is wholly untenable in law, liable to be rejected and the same is accordingly rejected.

29. Further, the contention urged by the appellants counsel placing reliance upon the aforesaid judgements that the act of the second respondent allegedly aiding the Gujarat Police Officers to facilitate taking Sohrabuddin from Bidar to Ahmedabad, has nothing to do with the discharge of his public functions, hence, the said statement in the news item allegedly defaming the second respondent being telecast and published in electronic and print media do not attract Section 199 of Cr.P.C. Therefore, it is contended on behalf of the appellants that the sanction accorded by the State Government is beyond its jurisdiction as the said act of aiding the Gujarat Police is an independent act and it is not in relation to the discharge of public functions of the second respondent though he, at that relevant point of time, was discharging his public  functions. This contention on behalf of the appellants is also wholly untenable in law, for the reason that determining the question on whether or not the second respondent while aiding the Gujarat Police at that point of time was in the capacity of his official discharge of his public functions or otherwise, is to be determined by regular trial after examining the facts, circumstances and evidence on record.

30. The reliance placed upon the judgment of this Court in the case of Rubabbuddin Sheikh (supra), contending that the fact of the investigation by the CBI in Sohrabuddin’s case was the subject matter before this Court at para 2 of the judgment in the case referred to supra, therefore, by publishing the same in the newspaper by the appellants (in Crl. A. Nos. 854 & 858 of 2012) cannot be made the basis of any defamation as the said news item was published after referring to the aforesaid judgment which is a public record. This contention urged on behalf of the appellants is wholly untenable in law for the reason that at para 2 of the said judgment of this Court in the above referred case is only with regard to the facts of that case, whereas, the allegations made against the appellants herein are for publishing and telecasting defamatory statements against the second respondent, which question of fact has to be examined, considered and answered only after regular trial proceedings before the learned Additional Metropolitan Sessions Judge. Therefore, the above contention urged in this regard is wholly untenable and the same is rejected.

31. Further, the learned counsel in Criminal Appeal Nos. 854 and 858 of 2012, placed reliance upon the judgment of this Court in the case of Urmila Devi (supra), in support of the proposition of law that only the Editor-In-Chief is responsible for the telecast or publication of the alleged defamatory statements against whom the sanction order is accorded and that there is no sanction order accorded to initiate prosecution against others. Further, the contention on behalf of the appellants that there must be specific mention of persons in the sanction order against whom prosecution can be launched and in the absence of the same, a single sanction order accorded by the State Government against all the other appellants in the connected appeals amounts to giving a wider interpretation of the provision under Section 199(4) of Cr.P.C., which is not the object of the aforesaid provision under the Cr.P.C. This aspect of the matter has not been examined by the High Court; therefore, impugned order is vitiated in law and is contrary to the provisions of Section 199(4) of the Cr.P.C.

32. By careful reading of Section 199(4) of the Cr.P.C., it does not indicate that in order to initiate criminal proceedings against the accused, the public servant needs to obtain sanction from the State Government in respect of each one of the persons against whom the same transaction of offence is alleged and the names of the accused are required to be mentioned specifically in the sanction order accorded by the State Government. It is sufficient if one sanction is accorded to prosecute all the concerned persons involved in that occurrence, thus, the contention on behalf of the appellants in this regard is also liable to be rejected and is accordinglyrejected.

33. The contention urged by the learned counsel Mr.Abhimanue Shrestha on behalf of the appellants in Criminal Appeal No.851 of 2012 is also untenable in law for the reasons stated that the appellant has made a statement on the basis of the news items telecast/published in electronic and print media. The same cannot be accepted by us for the reason that it is a matter that has to be examined by the trial court after recording the findings of fact on the basis of valid and cogent evidence to be adduced by the State Public Prosecutor on behalf of the respondent.Therefore, there is no substance in the said contention urged on behalf of the appellants and the same is rejected.

34. The learned counsel appearing on behalf of the second respondent rightly sought to justify the findings and reasons of the High Court in its impugned judgment, placing reliance on Sections 132, 188, 196,197 and 199 of Cr.P.C., inter alia contending that for prosecution of an accused in the case of defamation of a public servant, sanction can be accorded under the old Section 198B(3b) of Cr.P.C.,1898, by any Secretary or authorisation by the Government. He has also placed reliance upon Section 2U of Cr.P.C. which defines a Public Prosecutor as any person appointed under Section 24 and included any person acting under the directions of a Public Prosecutor. The learned counsel on behalf of the second respondent has rightly justified that the sanction accorded by the State Government to prosecute the appellants is perfectly legal and valid by placing reliance on Section 308 proviso 2, Section 473 of Cr.P.C. regarding the limitation for sanction and Section 484 of Cr.P.C. The learned counsel has also rightly placed reliance upon the judgments in the cases of Master Girdhari Lal, Printer & Publisher of Naya Bharat v. The State, Pachhalloor Noohu v. Public Prosecutor and Sant Lal v. Krishan Lal and B. Basavalingappa and Anr. v. Narasimhan all referred to supra. Therefore, the submission made by him is well founded and the same must be accepted.

35. Further, the learned counsel for the appellants by placing reliance on Articles 19 and 21 of the Constitution of India contended that the initiation and continuance of the criminal proceedings in the present cases hinder and hamper the very freedom of press which is most precious and constitute an affront to the aforesaid provisions under the Constitution of India. The said contention has been rightly rebutted by the learned counsel on behalf of the respondents by strongly urging that the reputation of an individual is also equally important and that the said aspect of the matter must be considered after adducing cogent and valid evidence on record by the Public Prosecutor before the learned trial Judge who shall then appreciate the same and record his findings on merits of the case.

36. In view of the aforesaid reasons, we are of the opinion that the impugned judgment passed by the High Court of Andhra Pradesh in rejecting the petitions for quashing the initiation of criminal proceedings against the appellants under Section 482 of the Cr.P.C. is perfectly legal and valid, the same does not call for interference by this Court in exercise of its appellate jurisdiction as there is no substantial question of law framed in the appeals nor is there any miscarriage of justice for the appellants to interfere with at this stage. In our considered view, having regard to the nature of the complaint, the respondents are required to prove the allegations against the appellants by adducing valid and cogent evidence, the same has to be considered by the trial court and accordingly record the findings on the merits of the case. The appeals are devoid of merit, liable to be dismissed and are accordingly dismissed. The orders granting stay of further proceedings before the trial court shall stand vacated.

J.[V. GOPALA GOWDA]

J.[C. NAGAPPAN]

New Delhi

May 14, 2015

1. AIR 1963 SC 1198

2 .AIR 1961 SC 387

3. (1997) 7 SCC 622

4. (2013) 15 SCC 624/ 2013 SCALE 513

5. AIR 1967 SC 1590

6 AIR 1979 SC 381

7 2010 (2 ) SCC 200

8 AIR 1956 SC 541 : 1956 SCR 476

9 (1994) 6 SCC 632

10 1969 CriLJ P&H 1318

11 1975 CriLJ Kerala 1304

12 1976 CriLJ Delhi 215

13 1974 CriLJ Karnataka 66

COURTESY : Supreme Court of India website  

Arnesh Kumar case: No Automatic Arrest in IPC 498A cases

Arnesh Kumar Vs State of Bihar case:No automatic Arrest by police :Dictum on Section 41 of Cr.PC.
The following direction given by Apex court on section 41 Cr.PC  

(1)All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2)All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3)The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4)The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5)The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6)Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recordedin writing;

(7)Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8)Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The apex Court also said that aforesaid direction, shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

What to do if police violates sec-41[check list] and Arnesh kumar case apex court dictum and chooses to arrest a  person arbitrarily with out following due procedure laid in Arnesh Kumar Judgment 

• Approach concern H.C for contempt proceeding for violation of Apex court dictum in Arnesh Kumar Vs State of Bihar ,note that this apex court order  is not only for arbitrary arrest in cases under  section 498A of IPC ,but also other offences below 7 yrs imprisonment .
• Departmental disciplinary proceeding against erring police officials

Full Text of the Apex court dictum on Section  41 of Cr.PC

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT

VERSUS

STATE OF BIHAR & ANR. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment

for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between  them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hencehe has knocked the door of this Court by way of this Special  Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an airconditioner, television set etc.was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to nonfulfilment of the demand of dowry. Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country.

Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives.The fact that Section 498-A is a

cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.The simplest way to harass is

to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades

are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for

offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code.It accounts for 4.5% of total

crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest

across all heads.As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.Arrest brings humiliation, curtails freedom,and cast scars forever. Law makers know it so also the police.There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the

power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We

believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the

reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no

arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177^th Report of the Law Commission submitted in the year

2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years

and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“41.When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a

warrant, arrest any person –

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that  he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine,

if the following conditions are satisfied, namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

(a) to prevent such person from  committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer;

or

(e) as unless such person is arrested,his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

X x x x x x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend

to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.

These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What  object it will achieve? It is only after these questions are addressed and one or the other

conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It

shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police

officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its

conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to

address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:

 “41A. Notice of appearance before police officer.-(1) The police

officer shall, in all cases where the arrest of a person is not

required under the provisions of  sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer

may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further

mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section41 Cr.PC has to be complied and shall be subject

to the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without

an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce.We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise

detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC

is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from

Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest,

while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms

aforesaid and only after recording itssatisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of

the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons

to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of

institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4

of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State

Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its

compliance.

By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute. In the result, we allow this appeal,making our aforesaid order dated 31st October,2013 absolute; with the directions aforesaid.

J.(CHANDRAMAULI KR. PRASAD)

J.(PINAKI CHANDRA GHOSE)

NEW DELHI,July 2, 2014.

Supreme Court directions on treatment for acid attacks victims

Supreme Court of India directions on treatment of acid attack victims at Private hospitals :

In Land mark judgement for the protection of acid attack victims ,Hon'ble Supreme Court gave directions to private hospitals to be followed.  

•The States/UTs will take a serious note of the directions of the Supreme Court with regard to treatment and payment of compensation to acid attack victims and to implement these directions through the issue of requisite orders/notifications.

• The private hospitals will also be brought on board for compliance and the States/UTs will use necessary means in this regard.

•No hospital/clinic should refuse treatment citing lack of specialized facilities.

•First-aid must be administered to the victim and after stabilization, the victim/patient could be shifted to a specialized facility for further treatment, wherever required.

•Action may be taken against hospital/clinic for refusal to treat victims of acid attacks and other crimes in contravention of the provisions of Section 357C of the Code of Criminal Procedure, 1973. 

Full Text of Judgement : 

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.)NO.129 OF 2006

LAXMI ...PETITIONER VERSUS UNION OF INDIA & ORS. ...RESPONDENTS

                                           O R D E R

Pursuant to our order dated 06.02.2015, the Ministry of Home Affairs has filed an affidavit dated 8 th April, 2015. We have heard learned counsel for the parties in considerable detail. A meeting was convened by the Secretary in the Ministry of Home Affairs, Government of India and the Secretary in the Ministry of Health and Family Welfare, Government of India with all the Chief Secretaries/their counterparts in the States/Union Territories on 14.03.2015. From the affidavit, the provisional figures for 2014 indicate that there were 282 acid attacks in all the States. The majority of acid attacks were in the States of Uttar Pradesh (185), Madhya Pradesh (53) and Gujarat (11).

 As far as the Union Territories are concerned, Delhi is the only Union Territory where acid attacks have taken place and the total number of such attacks in the year 2014 provisionally is 27.

In all, therefore, 309 acid attacks are said to have taken place provisionally in the year 2014. As mentioned in our order dated 06.02.2015, with the amendment to the Indian Penal Code, nothing survives in the first prayer made by the petitioner. The second and third prayers relate to the cost of treatment of the acid attack victims and application of Section 357C of the Code of Criminal Procedure, 1973, which was inserted by an Amendment Act in 2013 with effect from 03.02.2013.

In the meeting convened by the Secretary in the Ministry of Home Affairs and the Secretary in the Ministry of Health and Family Welfare on 14.03.2015, it has been noted that a Victim Compensation Scheme has already been notified in almost all the States and Union Territories. However, we are told today that the Victim Compensation Scheme has been notified in all States and Union Territories. We have gone through the chart annexed along with the affidavit filed by the Ministry of Home Affairs and  we find that despite the directions given by this Court in Laxmi Vs. Union of India [(2014) 4 SCC 427], the minimum compensation of Rs.3,00,000/- (Rupees three lakhs only) per acid attack victim has not been fixed in some of the States/Union Territories. In our opinion, it will be appropriate if the Member Secretary of the State Legal Services Authority takes up the issue with the State Government so that the orders passed by this Court are complied with and a minimum of Rs.3,00,000/- (Rupees three lakhs only) is made available to each victim of acid attack. From the figures given above, we find that the amount will not be burdensome so far as the State Governments/Union Territories are concerned and, therefore, we do not see any reason why the directions given by this Court should not be accepted by the State Governments/Union Territories since they do not involve any serious financial implication. We also direct the Member Secretary of the State Legal Services Authority to obtain a copy of the Victim Compensation Scheme from the concerned State/Union Territory and to give it wide and adequate publicity in the State/Union Territory so that each acid attack victim in the States/Union Territories can take the benefit of the Victim Compensation Scheme.  Insofar as the proper treatment, aftercare and rehabilitation of the victims of acid attack is concerned, the meeting convened on 14.03.2015 notes unanimously that full medical assistance should be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims. It is noted that there may perhaps be some reluctance on the part of some private hospitals to provide free medical treatment and, therefore, the concerned officers in the State Governments should take up the matter with the private hospitals so that they are also required to provide free medical treatment to the victims of acid attack. The decisions taken in the meeting read as follows:

• The States/UTs will take a serious note of the directions of the Supreme Court with regard to treatment and payment of compensation to acid attack victims and to implement these directions through the issue of requisite orders/notifications.

• The private hospitals will also be brought on board for compliance and the States/UTs will use necessary means in this regard.

• No hospital/clinic should refuse treatment citing lack of specialized facilities.

• First-aid must be administered to the victim and after stabilization, the victim/patient could be shifted to a specialized facility for further treatment, wherever required.

• Action may be taken against hospital/clinic for refusal to treat victims of acid attacks and other crimes in contravention of the provisions of Section 357C of the Code of Criminal Procedure, 1973. 

We expect the authorities to comply with these decisions. Although it is not made clear in the meeting held on 14.03.2015, what we understand by free medical treatment is not only provision of physical treatment to the victim of acid attack but also availability of medicines, bed and food in the concerned hospital. We, therefore, issue a direction that the State Governments/Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State/Union Territory to the effect that the private hospitals should not refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries. We also issue a direction that the hospital, where the victim of an acid attack is first treated, should give a certificate that the individual is a victim of an acid attack. This certificate may be utilized by the victim for treatment and reconstructive surgeries or any other scheme that the victim may be entitled to with the State Government or the Union Territory, as the case may be. In the event of any specific complaint against any private hospital or government hospital, the acid attack victim will, of course, be at liberty to take further action. With regard to the banning of sale of acid across the counter, we direct the Secretary in the Ministry of Home Affairs and Secretary in the Ministry of Health and Family Welfare to take up the matter with the State Governments/Union Territories to ensure that an appropriate notification to this effect is issued within a period of three months from today. It appears that some States/Union Territories have already issued such a notification, but, in our opinion, all States and Union Territories must issue such a notification at the earliest. The final issue is with regard to the setting up of a Criminal Injuries Compensation Board. In the meeting Page 7 7 held on 14.03.2015, the unanimous view was that since the District Legal Services Authority is already constituted in every district and is involved in providing appropriate assistance relating to acid attack victims, perhaps it may not be necessary to set up a separate Criminal Injuries Compensation Board. In other words, a multiplicity of authorities need not be created. In our opinion, this view is quite reasonable. Therefore, in case of any compensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other co-opted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that District or their nominee. This body will function as the Criminal Injuries Compensation Board for all purposes. A copy of this order be sent to learned counsel appearing for the Secretary in the Ministry of Home Affairs and the Secretary in the Ministry of Health and Family Welfare for onward transmission and compliance to the Chief Secretary or their counterparts in all the States and Union Territories. Page 8 8 The Chief Secretary will ensure that the order is sent to all the District Magistrates and due publicity is given to the order of this Court. A copy of this order should also be sent to the Member Secretary of NALSA for onward transmission and compliance to the Member Secretary of the State Legal Services Authority in all the States and Union Territories. The Member Secretary of the State Legal Services Authority will ensure that it is forwarded to the Member Secretary of each District Legal Services Authority who will ensure that due publicity is given to the order of this Court. The writ petition is disposed of in the above terms. .

                                         .J. (MADAN B. LOKUR)

                                       .J. (UDAY UMESH LALIT)

                                     NEW DELHI APRIL 10, 2015
Courtesy : Supreme Of India Website