In a second affidavit filed in the Gujarat High Court on February 16, that contests claims of contempt action against them, the Superintendent of Police, Kheda district of Gujarat, Rajesh Kumar Gadhiya, has –in a seeming turnaround – now defended the public flogging of Muslims during the Navratri festival in October 2022 last year. This has been widely reported in the media and LiveLaw has published the affidavit as well.
Over a dozen policemen are currently facing contempt of court proceedings for reportedly flogging a group of Muslim men under custody in front of cheering villagers and filming the act in October last year have denied the allegations and said that even if the allegations “tilted to be correct and true,” they were only indulging in such acts to control the law and order situation in an “efficient and effective manner”.
A police inquiry has found that six of the policemen “prima facie involved in the incident of physical abuse”. “Respondents have acted within the scope and ambit of their powers and there has not been any act committed by them which is beyond the powers conferred on the respondents. It is submitted that the acts of the respondents are the act in discharge of their duties and these acts were not done with any criminal intent,” the policemen have stated in an affidavit filed in Gujarat High Court.
While the SP has now in February 2023 defended the police action, an interim report by the deputy superintendent of police of Kapadvanj division had ruled that “as responsible police officers” the accused police personnel were required to “control the accused persons using other means and shift the accused to other safe place”. Following the incident in October, four individuals – Jahirmiya Malek (62), Maksudabanu Malek (45), Sahadmiya Malek (23), Sakilmiya Malek (24) and Shahidraja Malek (25) – filed a petition with the Gujarat high court against 15 police personnel – the inspector general (IG), the superintendent of police (SP), Kheda; 10 constables from the Matar police station; and three officers from the LCB. This is the case the Gujarat high court is hearing.
Now. According to the Indian Express, the policemen accused of being involved in the flogging have filed two sets of affidavits One set has justified the flogging on grounds that the victims had criminal backgrounds, therefore such brute action was “necessary to protect law and order”; the other set has said the contempt of court petition is not maintainable as they were only acting within the scope of their duties.
This revised stance on oath comes after the Kheda district Superintendent of Police Rajesh Gadhiya has also filed an earlier affidavit stating that a preliminary report had found six of these policemen “prima facie involved in the incident of physical abuse.” The six policemen have been identified as police inspector A V Parmar and constables Mahesh Vashram, Kanaksinh Lakshmansinh, Arjunsinh Fatehsinh, Rajendrakumar Rameshbhai and Vishnubhai Harjibhai, all posted with Local Crime Branch, Kheda. Gadhiya had then mentioned that a departmental action and disciplinary proceedings have been initiated against the erring officers. However, veracity of the video clips were then still to be ascertained as the department is still waiting for a forensic report.
Quoting this indicting interim report, the earlier affidavit had stated, “Responsible police officers, when the accused persons started misbehaving, instead of physically abusing the accused with lathi, the officers were required to control the accused persons using other means and to shift the accused to other safe place. However, the officers have beaten the accused in public and have not maintained discipline and restraint as a police officer. Further, necessary procedure is not followed which the police officers were required to undertake.”
The only circumstances that have changed in the months since the revised and more emboldened read defiant stance of the Gujarat police is the December 2023 state assembly elections during which the ruling party came back to power with an unapologetic and thumping majority. Unmindful of national and international human rights instruments and the law, soon after the outrage following the public flogging Gujarat’s home minister Harsh Sanghavi –responsible for the protection of the lives and properties of all citizens– had praised those involved for doing a “nice job”.
Now, on February 16, this affidavit was filed in response to a petition moved by five police flogging victims including a woman. The contempt petition filed by the victims in the high court accuses the errant policemen of violating Supreme Court judgement in in D K Basu vs State of Bengal, where certain guidelines were laid while dealing with arrest and preventing custodial torture. The policemen have contended that the contempt petition is not maintainable and moreover that none of the DK Basu guidelines have been violated!
“Unless a court of competent jurisdiction holds that while effecting the arrest of while detaining the petitioners, I have violated the directions contained in the form of guidelines of the Supreme Court of India, contempt proceedings against the respondents is not maintainable… the application for contempt is not maintainable which is based on newspaper reports and some video clippings. I submit that newspaper reports and video clips are not admissible evidence.”
Unrepentant over the countrywide outrage following the public flogging four months ago, in this February 16 affidavit the policemen have blamed the Muslim men for “disturbing the social fabric of a village by creating the rift between two communities and by assaulting people residing in a village”. It claimed that “the petitioners themselves had created an atmosphere of fear and terror amongst law-abiding residents of the village”.
Last October 3, several video clips surfaced showing flogging of persons who were arrested in a rioting case by policemen in full public view. The videos showed the villagers cheering for the policemen as they beat up the men one by one while their hands tied to electric poles.
The incident had occurred in Undhela village, Matar taluka of Kheda district in central Gujarat, a day after local policemen arrested dozens of persons from the Muslim community, following a case of rioting during Navratri garba festivity in the village. Incidents of stone pelting and riots were reported at the garba dance event organised at the temple, close to a mosque. Dozens of suspects including the five petitioners were picked up by the police from different places the same night and next morning they were brought to the village in a police vehicle.
In the affidavit, the policemen have claimed that some of the suspects were “abusing and spitting on them.” In their defence, the police men have stated in the affidavit that the petitioners, the accused in the rioting case, have a criminal history. Hetal Rabari, police sub-inspector with Mater police station, who is also a party in the litigation, has stated in her affidavit that petitioner no. 1, Jahirmiyan Malek, “is a senior citizen aged about 62 years but has surreptitiously not mentioned that he is an opposition leader and there are serious cases of rioting against him and he is also was one of the prime accused of the “Godhra Kand” case.” She has further stated, “The applicants have incorrectly submitted before this court that respondent no. 2 to 14 were mercilessly beating the petitioner 1 (Jahirmiyan Malek) despite he being a senior citizen. Further, during the course of investigation it was found that the petitioner no. 1 is the main conspirator as per his mobile conversation”.
The petitioners have alleged that the Supreme Court’s directions in D.K. Basu versus the State of West Bengal, wherein the top court laid down basic “requirements” for the police to follow during arrest and detention until legal provisions are made, were violated. Alleging that by flogging the accused, the officers violated these requirements, the petitioners sought for the police personnel to be tried for contempt of court and also sought for compensation to be paid to the accused.
In a fairly shocking averment by serving police officers, they have claimed that since the 2009 amendments to the Code of Criminal Procedure (CRPC), the police was acting within the powers and scopes of the powers as granted by the legislature and as such since the National Human Rights Commission (NHRC) was seized of the matter, the writ and remit of the petitioners’ claims holding the Gujarat police to account on the standards set by the DK Basu Judgement and its detailed directives would not apply.
Hetalben Rabari, police sub inspector (PSI) at Matar police station and one of the accused, has reportedly put in an an “unconditional apology” in her affidavit, while adding that “even if the allegations…are tilted to be correct, the same were resorted to only with a view to deal with the petitioners in an efficient manner and to control the law and order situation and further to prevent any kind of communal riots”.
The affidavit filed by the Gujarat police may be read here.