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2016 Supreme(Del) 4512
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN, J.
COURT ON ITS OWN MOTION - Appellant
Versus
ANIL DUREJA - Respondent
CCP (REF) 1/2016
Decided On : 23-12-2016
For the Appellant :Mr.Gautam Narayan with Ms.Shruthi Parasa, Advocate.
For the Respondent:Mr. Naushad Ahmed Khan, ASC (Civil) with Ms. Nancy Wadhwa, Advocate.
The plea of violation of Section 46(4) Cr.P.C. was an afterthought and lacked merit. Compliance with legal provisions is crucial in determining the admissibility of a plea.
Headnote:
Contempt - Violation of Section 46(4) of Cr.P.C. - 363/365/34 IPC - 46(4) Cr.P.C., 60-A Cr.P.C. - Summary of Acts and Sections: The court discussed the violation of Section 46(4) of Cr.P.C. and its interpretation by various High Courts. It also highlighted the legal provisions and their interpretations in the judgments referred by the learned Amicus Curiae. The court emphasized the compliance with Section 46(4) Cr.P.C. and the lack of merit in the plea of violation of the said provision.
Fact of the Case:
A child was kidnapped, and the accused was arrested during night hours. The accused filed an application under Section 46(4) Cr.P.C. alleging illegal arrest.
Finding of the Court:
The court found that the plea of violation of Section 46(4) Cr.P.C. was an afterthought and had not been raised earlier. It also concluded that no case of contempt was made out.
Issues: Violation of Section 46(4) Cr.P.C., jurisdiction of subordinate courts to make a reference to the High Court for civil contempt, and compliance with legal provisions.
Ratio Decidendi: The plea of violation of Section 46(4) Cr.P.C. was an afterthought and lacked merit. The court also clarified the jurisdiction of subordinate courts to make a reference for civil contempt and emphasized the compliance with legal provisions.
Final Decision: The court closed the contempt reference and discharged the notices issued.
MANMOHAN, J.
1. Present reference of contempt has been received from the Court of Mr. Ajay Kumar Malik, Metropolitan Magistrate, Central, Tis Hazari Courts, Delhi in which the accused no. 1-Shamsha Begum had submitted that she had been arrested illegally during night hours in violation of Section 46(4) of Code of Criminal Procedure (for short “Cr.P.C.”) as well as the binding directions issued by the Supreme Court in D.K. Basu Vs. State of W.B., (1997) 1 SCC 416 and Sheela Barse Vs. State of Maharasthra, (1983) 2 SCC 96 : AIR 1983 SC 378.
2. The Metropolitan Magistrate while referring the matter has observed in his order dated 05th January, 2016 that the present matter is a fit case for indulgence by the High Court under the contempt jurisdiction. He has also in his order held that that the reply filed by the SHO, Police Station, Sarai Rohilla to the contempt petition is evasive and the records do not show that he had obtained any permission from any judicial magistrate/Duty Magistrate prior to arrest of accused no. 1-Shamsha Begum at 11:00 p.m.
3. The relevant facts of the present case are that on 26th March, 2015 one Mohd. Rizwan (child) aged about two years was kidnapped by some unknown persons while he was playing outside his Jhuggi No. 166 at Rakhi Market which is within the jurisdiction of PS Sarai Rohilla between 7:00 a.m. and 1:00 p.m.
4. On 27th March, 2015, Mohd. Parvez (child’s father) submitted a complaint to PS Sarai Rohilla that his child was missing from the jhuggi and the same was recorded vide DD No. 39A attested by HC Rajeev Kumar. An FIR being FIR No. 333/2015 under Section 363 IPC was registered and the same was marked to IO/ Assistant Sub Inspector Nahar Singh.
5. During investigation of the case, accused no. 1-Shamsha Begum was arrested at 11:00 p.m. on 28th March, 2015 from House No. B-846, Madipur Colony, Delhi by IO Nahar Singh, PS Sarai Rohilla. In her disclosure statement, accused no. 1-Shamsha Begum disclosed that she had sold the child for a sum of Rs. 5000/-to Mohd. Aalim (accused no. 2). The child was recovered from the house of accused no. 2 and both the accused were arrested on 28th March, 2015 after sunset.
6. On the same date, Sub Inspector Smt. Nirmala, who was a part of the police party headed by Assistant Sub Inspector Nahar Singh, made a statement under Section 161 Cr.P.C. that she was present when the arrest was made and also that the permission of the Ilaka Magistrate was sought before making arrest of accused no. 1-Shamsha Begum. Constable Ajay Yadav, who was also a part of the police party headed by Assistant Sub Inspector Nahar Singh, stated under Section 161 Cr.P.C. that he was present when the arrest was made and that the permission of the Ilaka Magistrate was sought prior to making the arrest of accused no. 1-Shamsha Begum.
7. On 29th March, 2015, the accused no. 1-Shamsha Begum was produced before Duty MM who remanded her to judicial custody for three days.
8. On 31st March, 2015, an application for conducting Test Identification Parade (TIP) was moved by the IO before the Court of Metropolitan Magistrate and the same was marked to Metropolitan Magistrate-02 (Central), Tis Hazari Courts. The TIP proceeding was conducted wherein the accused no. 1-Shamsha Begum refused to join the proceedings.
9. On 27th May, 2015, final report under Section 173 Cr.P.C. was filed. It was stated in the final report that the permission of Metropolitan Magistrate was taken prior to the arrest of accused no. 1-Shamsha Begum.
10. On 2nd December, 2015, the accused was discharged under Section 370 IPC on the ground that there was no independent material to corroborate the disclosure statement. Consequently, the matter was remanded back to the Court of CMM for assigning it to a competent court for trial.
11. On 4th January, 2016, the accused no. 1-Shamsha Begum filed an application under Section 46(4) Cr.P.C. On 5th April, 2016, the order of reference was passed. The relevant portion of the said order is r
