Kheda Flogging Of Muslim Men| 'Custodians Of Law & Order Shouldn't Become Depredators Of Civil Liberties': Gujarat HC In Contempt Order

Finding 4 Gujarat Police officers GUILTY of committing Contempt of Court (for violating Apex Court's DK Basu Guidelines) and sentencing them to undergo simple imprisonment of 14 days for publicly flogging Muslim men in the Kheda district last year, the Gujarat High Court on Thursday observed that the custodians of law and order should not become depredators of civil liberties

In its 39-page order, a bench of Justice AS Supehia and Justice Gita Gopi stressed that the police officers should have the greatest regard for the personal liberty of citizens as they are the custodians of law and order and, hence, they should not flout the law by stooping to bizarre acts of lawlessness.

Significantly, the Court also underscored in its order that an accused doesn't lose his fundamental right to liberty when he is in custody and therefore, even being in custody, his dignity cannot be allowed to be comatosed.

"...a citizen does not shed off his fundamental right to life, the moment a policeman arrests him. The right to life of a citizen cannot be put in abeyance on his arrest. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law," the Court further added as it noted that if the functionaries of the Government become lawbreakers, it is bound to breed contempt for the law and would encourage lawlessness.

Regarding the limitation on the powers of the police officials, the Court said that in a society governed by the rule of law and where humanity has to be a "laser beam", as our compassionate constitution has so emphasized, the police authorities cannot show the power or prowess to vivisect and dismember the same and in case, they pave such path, the law cannot become a silent spectator.

With this, the Court found Local Crime Branch Inspector (AV. Parmar), Sub-Inspector (D.B. Kumavat), Head Constable (Kanaksingh Laxman Singh) and a Constable (Raju Rameshbhai Dabhi) guilty of committing contempt of court for tying 5 Muslim men to a poll and beating them with sticks, in full public view and amid cheers from the onlooking crowd.

"The acts of the respondents are reminiscent of their intent to fail to do something the law required them to do, and they have engaged themselves in committing an inhuman act with a horrific purpose to humiliate the complainants in full public view. The law enunciated by the Apex court in the case of D.K.Basu (supra) is flagrantly violated by the respondents in committing the egregious act," the Court noted in its order.

Importantly, the Court also refused to accept the apology offered by the guilty cops as the Division bench was of the view accepting their apology would send wrong signals to everyone in the country and would be deleterious to the rule of law.

Referring to the Supreme Court's decision in the case of J. Vasudevan vs T.R. Dhananjaya 1995, the Court noted that if mercy is shown in such contempt matters, the effect would be that people would not knock the door of the Courts to seek justice, but would settle score on the streets, where muscle power and money power would win, and the weak and the meek would suffer, and that would be a death knell to the rule of law and social justice would receive a fatal blow.

Taking into account the facts of the case, the Court said that the barbarous act had been videographed and has been widely circulated in media and the same did not remain confined to the Undhela Chowk (the place where the flogging took place).

Hence, the Court was of the view that the apology tendered cannot be accepted routinely, although the apology may be unconditional and bona fide.

"If the conduct is so serious and reckless which disintegrates the law declared by the highest court of the land, and has a debilitating effect on the rule of law, the apology cannot be accepted," the Court added.

Further, stressing that it was not only the majesty of the Court that had been degraded in the case, but the self-respect of the complainants was blown to smithereens and therefore, the Court said that the apology tendered to this Court “only” will not wipe out the scars left on the psyche of the complainants.

Consequently, the Court ruled that the interest of justice would be served if the respondents were ordered a sentence of undergoing simple imprisonment of 14 days and a fine of Rs.2,000/- and in default, further simple imprisonment of 3 days.

However, the directions issued by the Court, about the sentence, were stayed for 03 (three) months on the request of the senior counsel Prakash Jani appearing for the respondent police officials to prefer an appeal against the order.

Senior Advocate IH Syed appeared for the applicants

Case Title - Jahirmiya Rehamumiya Malek Vs. State Of Gujarat

LL Citation: 2023 LiveLaw (Guj) 170