New Delhi: The Supreme Court on Tuesday criticised the Gujarat police officials involved in publicly flogging three Muslim men after tying them to a pole in October 2022, calling their conduct “atrocious” and “unacceptable”.

A bench of justices Bhushan R Gavai and Sandeep Mehta emphasised that the policemen not only misused their authority but also acted in contravention of the Supreme Court’s 1997 ruling in the DK Basu case that warned law enforcement agencies against custodial torture and laid down extensive guidelines on police conduct during arrests and detentions.

“Do you have an authority under law to tie people to poles and beat them in public view? And take a video? What kind of atrocity is this and you even take video of it,” the bench remarked as it took up an appeal filed by the policemen against their conviction and punishment in a contempt case.

In October last year, the Gujarat high court sentenced four policemen to 14 days’ imprisonment, with a fine of ₹2,000, in the contempt of court case over the public flogging of three Muslim men in the state’s Kheda district. The incident, a video of which went viral, occurred in October 2022.

On Tuesday, the bench asked senior counsel Siddharth Dave, who represented the accused policemen, about the basis for seeking a reversal of the conviction in the contempt case when there appeared no dispute over the facts of the case.

Dave said the appeal questions the jurisdiction of the high court in proceeding under the contempt of court jurisdiction because the 1997 judgment in the DK Basu case did not term the incident in question as a form of custodial torture.

“So, you think you have authority under the law to tie people and beat them?” wondered the bench, asking Dave if the act could be justified just because the 1997 judgment did not mention the act of flogging with sticks.

Dave replied that the police officers were already facing criminal prosecution as well as departmental proceedings and that the issue in appeal was the high court’s jurisdiction to proceed against them in a contempt case.\

“It has to be willful disobedience of the court’s judgment in a contempt case. This part has to be found. That he, knowing about this judgment, said he will not follow it,” added the senior counsel.

But the bench remained unimpressed.

“So, (is) ignorance of law a valid defence? It’s the duty of every police officer to know what the law is laid down in DK Basu. We have been hearing about DK Basu since the time we were students,” the bench told Dave.

The bench added that the high court further noted that the victims were also kept in illegal detention for over 24 hours.

Dave said this conclusion could be made only after a trial. “Under contempt jurisdiction, they cannot be prosecuted for an offence without a trial that requires facts to be proven,” he said.

Senior advocate IH Syed, who appeared for the victims, informed the bench that a private complaint to prosecute the four policemen was also pending before a trial court, and that the contempt proceedings had to remain independent of any other legal proceedings.

“They are simply saying it’s (contempt) not willful. Beyond that, they have no case,” Syed argued.

At this point, the bench noted that the appeal against the order of the high court’s division bench would have to be admitted by the Supreme Court since the Contempt of Courts Act allows a person to challenge such a decision. “It’s a statutory appeal. So, we will have to admit it and hear,” the bench said.

After Dave pointed out that the high court stayed the operation of the order for three months after the accused sought time to file an appeal, the bench agreed to extend the stay on their jail term until the next date of hearing.

In October 2022, a group of 150-200 people from the Muslim community allegedly pelted stones at a garba event during Navratri festivities inside a temple at Undhela village in Kheda district. After the incident, the police arrested several people, some of whom were allegedly publicly flogged after being tied to a pole. Videos of the incident went viral.

In its October 19, 2023 judgment, the high court termed the flogging as “inhumane” and an “act against humanity” while stressing that even those who were arrested by the police have the “right to life”, which also includes living “life with dignity”. It held that once a person is in the custody of the police, “his dignity cannot be allowed to be comatose”.

In its ruling, the high court rejected inspector AV Parmar, sub-inspector DB Kumavat, head constable KL Dabhi, and constable Raju Dabhi’s contention that the act of flogging, by hitting the victims on their buttocks with sticks, did not amount to custodial torture.

The policemen had offered monetary compensation to the victims to ward off an order of imprisonment, but the victims declined to accept any compromise or compensation.