Kangana Ranaut need not to remain present before Police. Bombay High Court order directing her to remain present before police is illegal. The Acts stipulates the rules and regulations to be followed by every citizen of the country. No person is above the law. Also, it is the Legislation that makes the law and it is the Judiciary who takes care that such laws are enforced and implemented and if there any violation thereof, the offender shall be punished as stipulated in the law.
The case of Kangana Ranaut is no different and the tricks and tactics used by the Public Prosecutor and the Advocate for the original Complainant in order to compel the Bombay High Court to pass an order directing her to remain present before police and that, too in contempt of the Supreme Court judgement is a professional misconduct, thus liable for action under contempt as well as strict disciplinary action not only against the advocates but also the police officers as well.
Kangana Ranaut was directed by the Bombay High Court to remain present before police in order to record her statement. But this is a gross violation of the fundamental rights of a woman according to the law. Criminal Procedure Code stipulates a provision and directs that the police officers have the power to call and ask for the attendance o the witness under section 160. But read clearly, the proviso speaks that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
In order to seek justice, Indian Bar Association’s National Co-ordination Committee Head Adv. Ishwarlal Agarwal is filing Contempt Petition before Supreme Court for action against all involved in undermining the majesty and dignity of the rule of law and creating confusion against the binding precedents of the Supreme Court.
The Supreme Court has emphasized on the mandate of section 160 of Cr.P.C. in multiple cases and has made it clear and also directed the police authorities that the statement of woman has to be recorded at her residence. This was made utmost clear in the case of Nandini Sathpathy (1978) 2 SCC 424, by the three Judge Bench of Supreme Court and also in the recent case of Roshani Biswas V/s. State (2020) SCC Online SC 881.
Justice Krishna Iyer, in a landmark judgment in the case of Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 said as under;
‘‘Police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the whole-some proviso to Section 160 (1) of the Cr. P. C. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law.
Police cannot be the law unto themselves expecting others to obey the law. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law.’’
Also, in another case of Rajaram V/s. State (1971) 3 SCC 945, on the contempt of Court’s order and violation of such rights granted under the said section 160 of Cr.P.C.; the Police Officer who issued unlawful summons were sentenced for 3 months imprisonment by the Supreme Court. The observation in the said case is as follows:
“India Penal code sec. 341, 342 – Conviction of Police Officer for illegally Summoning an accused/witnesses – Held –The Police Officer cannot Summon a woman or a male under fifteen years of age – Such persons must be asked to attend interrogation at the place where they reside – This is mandatory provision of section 160 of Cr. P.C. – The Police Officer by calling the witnesses at police station kept them under wrongful restraint – The Police Officer is guilty under section 341 of I.P.C. – His conviction is proper.”
The police officer cannot ignorantly insist a woman to appear before him at the police station by blatantly abusing the provisions under section 160 of Cr.P.C. just because a court has ordered the same, does not give the police any freedom to disobey the law. By such principal, the Legislation is trying its best to keep juveniles and women safe and away from any sort of harassment or such acts. It may be said as it is a public policy which is not complimentary to police personnel. Such acts of contempt must be looked with cautiousness and disciplinary action and met with prompt punishment.
Also, the officer of Mumbai Police’s Economic Offences Wing issued such Summons to the Accused lady -Uzma Zakir Siddiqui. While she approached for anticipatory Bail before the Bombay High Court, it put the condition for her attending the police station. When she failed to attend the police station, she was summoned by the Police Station asking her to remain present. She filed a Writ Petition before Division Bench of High Court challenging the said summons. While the Investigating Officer took defence in the name of Court’s Order, Adv. Nilesh Ojha appearing for accused petitioner Uzma pointed out the landmark judgement of Nandini Sathpathy’s (1978) 2 SCC 424, wherein it is clearly laid down that ‘even if it is order of the court, the police have to follow the provisions of Section 160 of Criminal Procedure Code and they have to record her statement at her residence.
Then Division Bench, firm to impose cost upon the Mumbai Police but the police officer tendered apology and withdrew the notice. The Division Bench recorded the statement of the officer in the case of Uzma Zakir Siddiqui Vs. State 2016 SCC OnLine Bom 15930, held as under –
“2. The learned counsel for the petitioner prays for ad-interim order. Mr. Yagnik, the learned APP having taken instructions from A.P.I. Mr. Himmat Jadhav, EOW Unit 7, Mumbai, however, makes a statement that the impugned notice would not be acted upon till the next date, provided the petitioner cooperates into investigation, gives permanent address of her residence to the Investigating Officer and will not leave the same without prior permission of the Investigating Officer.
3. Statement accepted.”
Also, in the recent case of Roshani Biswas V/s. State (2020) SCC Online SC 881, the three Judge Bench of the Supreme Court made it clear that – the police should investigate on Phone/E-mail/WhatsApp and if required they have to go to the residence of the accused. Justice Chandrachud observed;
“We are, however, of the considered view that to require the petitioner at this stage to comply with the summons under Section 41A during the pendency of the proceedings before the High Court would not be justified in the facts as they have emerged in this case. Hence we grant an ad-interim stay against the implementation of the direction of the High Court requiring the petitioner to appear before the Investigating Officer at Ballygunge Police Station. This is subject to the condition that the petitioner undertakes to respond to any queries that may be addressed to her by the Investigating Officer and, if so required, attend to those queries on the video conferencing platform with sufficient notice of twenty-four hours. Mr Jethmalani, learned senior counsel appearing on behalf of the petitioner states that the petitioner would cooperate in all respects though after the order of 5 June 2020, no query was addressed to the petitioner, despite five months having elapsed since then. Mr R Basant, learned senior counsel submits that liberty may be granted to the Investigating Officer, if so required, to come to Delhi for the purpose of eliciting specific responses by way of clarification from the petitioner in regard to the alleged Facebook posts. Mr Jethmalani states that there is no objection to the Investigating Officer doing so with twenty-four hours’ notice. We accede to the request of Mr Basant.”
The another landmark judgment on the provision of Section 160 of Criminal Procedure Code is the case of Pusma Investment (P.) Ltd. and Ors. Vs. State 2010 Cri. L. J. 56, where Hon’ble High Court quashed the notice issued by the police observing as under-
“If the contention of the learned Additional Advocate General that under Section 160, the police officer making the investigation is not disabled from requiring the attendance of a witness residing beyond the local limits of his police station or adjoining station, is accepted, that will amount to ignoring the words “being within the limits of his own or any adjoining station”. In my opinion, such interpretation is against all canons of interpretation. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute (see Ashwini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369). “In the interpretation of statutes”, observed Das Gupta, J. in J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U. P., AIR 1961 SC 1170 (at page 1174), “the Courts presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.” The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. When the language of Section 160 is plain and unambiguous, this Court cannot plunge headlong into a discussion of the reason which motivated the Legislature into enacting this provision and took into consideration the hardship and inconvenience being caused to the investigating agency if they are not allowed to enforce the attendance of witnesses residing beyond their police station or adjoining police station. The rule of purposive construction cannot also be invoked in this provision. The correct principle, according to the learned author, G. P. Singh, J., is that after the words have been construed in the context and it is found that the language is capable of bearing only one construction, the rule in Heydon’s case ceases to be controlling and gives way to the plain meaning rule. But the rule cannot be used to “the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own especially when “the language has no evident ambiguity or uncertainty about it. (see Principles of Statutory, Interpretation, 9th Edn. pp. 119-120). In the view that I have taken, the impugned notices are ultra vires the provisions of Section 160 of the Code of Criminal Procedure, 1973, and cannot be sustained in law. I have carefully gone through the case Anirudha S. Bhagat (2005 Cri LJ 3346) (supra) cited by the learned Additional Advocate General, but, with respect, I find myself unable to agree with view taken by the Division Bench of the Bombay High Court for the reasons already stated in the foregoing.
6. Consequently, this writ petition succeeds. The impugned notices issued by the respondent No. 6 to the petitioners under Section 160, Cr. P. C. are hereby quashed. No further notice under S. 160, Cr. P. C. shall be issued by him upon the petitioners hereafter to enforce their attendance from Delhi as witnesses”
Division bench of Bombay High Court while hearing the petition of Kangana in Criminal Application St. No. 5028 of 2020 in its order dated November 24, 2020 had made following observations;
“Learned counsel appearing for the applicants, on instructions of the applicants makes a statement that the applicants will appear before the Investigating Officer from Bandra Police Station, who is investigating into MECR No.3/2020 under Sections 153A, 295A, 124A read with Section 34 of the Indian Penal Code, on 8th January, 2021, in between 12.00 noon to 2.00 p.m. Statement accepted.
So far as ad-interim relief is concerned, Mr. Merchant, learned Counsel appearing for the 2nd respondent vehemently opposed grant of any protection to the applicants. He submits that though three summons were issued to the applicants, the applicants did not honour the said summons and cause appearance before the Investigating Officer.
Here it is clear that, the PP Deepak Thakare and Adv. Rizwan Merchant compelled the Court to pass an order against the binding of Supreme Court which is violative of statutory rights of the women.
For said act both the advocates are liable for action under contempt of Courts.
In Shiv Kumar Vs. Hukum Chand (1999) 7 SCC 467 (F.B.), it is ruled that, If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it on the contrary, it is the duty of the Public Prosecutor to which it to the fore and make it available to the accused. Even if the defence counsel overruled it. It is observed as under;
‘‘13. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge.’’
In P. V. R. S. Manikumar Vs. Krishna Reddy 1999 CRI. L. J. 2010 it is ruled as under;
28. The counsel is endowed with noble duties. He has not only got duty towards his client, but also to his colleague. He has not only got duty towards the Court, but also towards society. Therefore, he should see the case of his client conducted fairly and honestly. The Advocates are responsible to the Court for the fair and honest conduct of the case. In matters of this kind, they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility.
29. According to the Supreme Court in Hari Shankar Rastogi v. Girdhari Sharma , the Bar is not different from the Bench. They are the two sides of the same coin. Bar is an extension of the system of justice; lawyer is an officer of the Court. He is a master of an expertise, but more than that, kindful to the Court and governed by high ethics. The success of judicial process often depends on the service of the legal profession.
30. Normally, in dealing with the application for quashing, etc., while interim orders, the Court naturally takes the facts and grounds contained in the petition at their face value and the oral submission made by the counsel before this Court. Therefore, it may not be fair and proper on the part of the counsel to betray the confidence of the Court by making statements which are misleading.
31. Mr. N. R. Elango, the learned Government Advocate, who was asked to assist in this matter as Amicus Curiae, has cited the judgment of the Supreme Court in P.D. Khandekar v. Bar Council of Maharashtra , wherein it has been held that the members of the legal profession should stand free from suspicion and that nothing should be done by any member of the legal fraternity which might tend to lessen any degree of confidence of the public in the fidelity, honesty and integrity of the profession.
32. As the Apex Court would point out, giving a wrong legal advice cannot be said to be unethical, but giving an improper legal advice cannot be said to be ethical. When a client consults with a lawyer for his advice, the client relies upon his requisite experience, skill and knowledge as a counsel. In such a situation, the counsel is expected to give proper and dispassionate legal advice to the client for the protection of his interests.