“NON-REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1601 OF 2012
(Arising out of Special Leave Petition (Crl.) NO. 1957 of 2012)
Subhashree Das @ Milli …. Appellant
Versus
State of Orissa & Ors. …. Respondents
O R D E R
1. Leave granted.
2. First Information Report no. 8 dated 14.1.2010 was registered at
police station Balugaon under Sections 120B, 121, 121A, 124A read with
Section 34 of the Indian Penal Code, Section 17 of the Criminal Law
(Amendment) Act, Section 63 of the Indian Copyright Act, 1957, and Sections
10, 13, 18 and 20 of Unlawful Activities (Prevention) Act, 1967. According
to the complainant (Balabhadra Pradhan, Sub Inspector of Police), on
14.1.2010 he alongwith Assistant Sub Inspectors of Police D.K. Pathnaik and
B.K Behera, were on motor vehicle checking duty on National Highway no. 5.
The complainant and his companions were also keeping a watch on the
movement of anti social criminals. At about 5:20 PM, one Bollero pick-up
van bearing registration no. PR-02 BA 5327, was seen by the police party,
coming at a high speed from Bhubaneswar side. On being signalled, the said
vehicle stopped, but one of its occupants alighted therefrom and started
running away. The complainant chased him and was successful in detaining
him. In view of the conduct of one of the occupants of the vehicle, and in
view of the smell emanating from the vehicle, the complainant and his
companions became suspicious, and therefore, decided to search the vehicle.
In the vehicle, they found two persons including the driver. In the
presence of the occupants, the vehicle was searched by the police party.
Four packed cartons, one air bag and one hand bag were found in the
vehicle. On opening the cartons, the complainant and his companions found
“Maoist” leaflets and “Maoist” literature. The air bag contained jungle
shoes. The small bag contained Naval related literature, one diary, and
one Naxal secret letter. Cash of Rs.21,175/- was recovered from one of the
occupants on his personal search. The police also found three mobile
phones with SIM cards bearing numbers 9692197593, 9439071458 and 9692231528
in possession of the occupants of the van. The vehicle and materials
aforementioned were seized by the police party. A seizure memo was
prepared, which was got signed from the occupants of the van, and a copy
thereof was also handed over to them.
3. On being questioned, the occupants of the Bollero pick-up van
allegedly disclosed to the police party, that the confiscated materials had
been handed over to them by the appellant, who was allegedly the wife of
Naxal leader, Sabyasachi Panda. According to the occupants of the vehicle,
the aforesaid material was being taken to Bhanjanagar and the same was to
be handed over to some unknown “Naxalites”. The material would thereupon
be used for subversive activities in different parts of Orissa.
4. According to the appellant, she was arrested on account of her
alleged involvement in the crime case arising out of First Information
Report no. 8 dated 14.1.2010. She also asserted, that she had been
arrested after sunset and before sunrise i.e., during the night intervening
14/15.1.2010. It was also the assertion of the appellant, that she was
arrested without the permission of the Judicial Magistrate First Class. It
was, therefore, contented that her arrest was illegal. It was further
submitted, that the appellant was not produced before the concerned Court
within 24 hours of her arrest. Accordingly, the prayer of the appellant
has been, that her detention being illegal, she deserved to be adequately
compensated. In fact, it is for the aforesaid reason, that the appellant
had approached the High Court of Orissa at Cuttack, by filing Writ Petition
(Crl.) no. 130 of 2010.
5. It was the vehement contention of the learned counsel for the
appellant, that the crime case arising out of First Information Report no.
8 dated 14.1.2010, in which the appellant was arrested, has already been
quashed by the High Court of Orissa, and as such, according to the
appellant, it is obvious that her detention on the night intervening
14/15.1.2010 was wholly baseless and illegal. In order to seek
compensation, two pleas were pressed by the appellant before the High
Court. Firstly, that her arrest after sunset but before sunrise, having
not been made in terms of the procedure prescribed by law, was wholly
unwarranted. Secondly, it was also the contention of the appellant, that
she had been produced before the concerned Court, well beyond 24 hours of
her arrest, and as such, her detention was also illegal and unauthorized.
It is on the aforesaid two counts, that the appellant claimed compensation
through the writ petition filed before the High Court.
6. A perusal of the pleadings filed by the appellant before this Court,
as also the factual position depicted in the impugned order passed by the
High Court of Orissa dated 24.11.2011 reveals, that the contention of the
appellant was, that she was detained at 3:00 AM on 15.1.2010, whereas, the
assertion of the functionaries of the police department was, that her
arrest had been made at 3:00 PM on the said date. The instant aspect of
the matter was gone into by the High Court. The High Court examined the
matter in the following manner:-
“So far as the date and time of arrest is concerned, undisputedly, the
date of arrest has been mentioned as 15.01.2010 in the arrest memo but
time has been reflected as 3 A.M. On verification of the case diary
produced before us, we find that time of arrest as indicated in the
case diary has been corrected from 3 A.M to 3 P.M. Therefore, the
question as to whether the petitioner was arrested on 15.01.2010 at 3
A.M or 3 P.M is a disputed question of fact. On further scrutiny of
the case diary, we find that the petitioner was examined by the
Investigating Officer on 15.01.2010 in between 8.15 A.M to 2.45 P.M,
Thereafter the petitioner appears to have been arrested at 3 P.M. The
subsequent entry also reflects that at 3.15 P.M on 15.01.2010 the
petitioner was shifted to Bhubaneswar Mahaila Police Station and the
rest of the entries made in the case diary bear the time 3.50 P.M,
5.45 P.M etc. Therefore, the entry before the time of arrest and
entry made after the arrest prime- facie indicate the petitioner had
been arrested at 3 P.M on 15.01.2010. Therefore, entry in the memo of
arrest indicating the time of arrest to be 3 A.M prime- facie appears
to be an error and not supported by the entries made in the case
diary.
It is apparent from the conclusion drawn by the High Court, that the arrest
of the appellant at 3:00 AM was erroneously recorded, whereas, actually she
had been arrested at 3:00 PM on 15.1.2010. This conclusion drawn by the
High Court is subject matter of challenge at the hands of the appellant.
7. Having given due consideration to the contention advanced at the
hands of the learned counsel for the appellant, we are of the view that the
claim of the appellant under Article 226 of the Constitution of India
before the High Court of Orissa, could not have been determined on the
basis of disputed facts. In a case where a petitioner/appellant wishes to
press his/ her claim before a High Court under Article 226 of the
Constitution of India, the claim raised by such a petitioner/appellant must
be determined on the basis of the factual position acknowledged by the
respondent. This is so because a High Court in exercise of jurisdiction
under Article 226 of the Constitution of India, would ordinarily not
adjudicate a matter, where the foundational facts are disputed. It is,
therefore, apparent that the High Court would have ordinarily been fully
justified in determining the claim of the appellant by accepting the
factual position depicted by the functionaries of the police department,
namely, that the appellant was arrested at 3:00 PM on 15.1.2010. The High
Court, however, chose not to fully rely upon the assertions made on behalf
of the respondents. The High Court, in fact, personally verified the
factual position from the case diary and on its scrutiny, arrived at the
conclusion extracted above. We find absolutely no infirmity in the
conclusion rendered by the High Court. In the absence of any material
(relied upon by the appellant) to the contrary, we find no infirmity in the
determination rendered by the High Court, in so far as the time of
detention of the appellant is concerned.
8. The second aspect of the matter relates to the production of the
appellant before the competent Court well after 24 hours of her arrest. In
so far as the instant aspect of the matter is concerned, the factual
determination of the High Court is being reproduced below:-
“So far as the second question is concerned, the case diary indicates
that the petitioner was arrested at 3 PM on 15.01.2010. She was
produced before the learned J.M.F.C. Banapur at 7 PM on 16.01.2010.
Bhubaneswar is connected with Banapur mostly by National Highway and
the time consumed ordinarily for travelling from Bhubaneswar to
Banapur should be near about three hours. Under these circumstances,
if the petitioner admittedly was produced before the learned J.M.F.C.,
Banapur on 7 P.M on 16.01.2010, no grievance can be made by her to the
effect that she was not produced before the learned Magistrate within
24 hours. On both the issues having found that claim of the
petitioner has no substance, the question of grant of compensation
does not arise.”
9. It has not been disputed before us during the course of hearing, that
the travel time between Bhubaneswar and Banapur is about three hours.
Accordingly, after having detained the appellant at Bhunbaneswar, she was
produced before the Court of Judicial Magistrate First Class, Banapur at
7:00 PM on 16.1.2010. If the travel time is taken into consideration, it
is apparent that it would be unjust for the appellant to contend, that she
was produced before the concerned Court well after 24 hours of her arrest.
It may be noted that her contention would have been of substance, if she
could have established that she was arrested at 3:00 AM on 15.1.2010. We
have, however, accepted the determination rendered by the High Court, that
the appellant was arrested at 3:00 PM on 15.1.2010. It is not disputed,
that the appellant was produced before the Judicial Magistrate First Class,
Banapur at 7:00 PM on 16.1.2010. Taking into consideration the travel
time, it cannot be stated that she remained in detention well beyond 24
hours from her arrest i.e., till her production before the Judicial
Magistrate First Class, Banapur.
10. In view of the conclusions drawn by us hereinabove, we are satisfied
that the High Court was fully justified in concluding, that the arrest of
the appellant was not unauthorized, since she had been arrested well before
sunset. We are also satisfied in affirming the reasons recorded by the
High Court, that the detention of the appellant did not substantially
exceed 24 hours i.e., after her arrest and before her production before the
Judicial Magistrate First Class, Banapur. In view of the aforesaid
conclusions, the claim of the appellant for compensation for unauthorized
arrest and detention is clearly unwarranted. We, therefore, hereby confirm
the order passed by the High Court declining compensation to the appellant.
11. For the reasons recorded hereinabove, we find no merit in the instant
appeal. The same is, accordingly, dismissed.
…………………………….J.
(B.S. CHAUHAN)
…………………………….J.
(JAGDISH SINGH KHEHAR)
New Delhi;
October 5, 2012
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