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Tuesday, June 14, 2016

In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                   WRIT PETITION (CRIMINAL) NO. 30 OF 2015


Dr. Rini Johar & Anr.                   ... Petitioners
                                   Versus
State of M.P. & Ors.                    ... Respondents


                               J U D G M E N T

Dipak Misra, J.
      The petitioner no.1 is a doctor and she is presently  pursuing  higher
studies in United States of  America  (USA).   She  runs  an  NGO  meant  to
provide services for South Asian Abused Women in USA.   Petitioner  no.2,  a
septuagenarian lady, is a practicing Advocate in the District Court at  Pune
for last 36 years.  Petitioner no.1 is associated with  M/s.  Progen,  a  US
company.
2.    As the facts would unveil, the informant, respondent no.8 herein,  had
sent an email to the company for purchase of machine Aura Cam,  6000,  which
is an Aura Imaging Equipment, in India and the  concerned  company  sent  an
email  to  the  respondent  making  a  reference  to  the  petitioner  no.1.
Thereafter, the said respondent  sent  an  email  asking  her  to  send  the
address where he could meet her and have details  for  making  payment.   He
also expressed his interest to become a distributor.
3.    The informant visited the petitioner no.1 at Pune and received a  demo
of Aura Cam 6000 and being satisfied decided  to  purchase  a  lesser  price
machine i.e. “Twinaura Pro” for a total sum of Rs.2,54,800/-.    He  paid  a
sum of Rs.2,50,000/- for which a hand  written  receipt  was  given  as  the
proof  of  payment.   During  the  course  of  the  said  meeting,  the  8th
respondent expressed his desire to purchase  a  laptop  of  M/s.  Progen  of
which the petitioner no. 1 was the  representative.   In  pursuance  of  the
discussion, the laptop was given to him who acknowledged it by stating  that
he owed a sum of Rs.4,800/- as balance consideration towards  the  Aura  Cam
and an amount of USD 350 towards the laptop.  An  assurance  was  given  for
remitting the money within a short time.  As averred,  the  respondent  no.8
had never raised any  grievance  relating  either  to  the  machine  or  the
laptop.   Certain transactions between the  informant  and  the  US  company
have been mentioned and the allegations  have  been  made  against  the  8th
respondent that he represented himself as  the  sole  distributor  in  India
which was brought to the notice of the concerned  police  in  the  State  of
M.P. by the competent authority of the company.  The said  facts  really  do
not have much relevance to the lis which we are going to adjudicate  in  the
present writ petition.
4.    When the matter stood thus, the  respondent  no.8  filed  a  complaint
before the Inspector General of Police, Cyber  Cell,  Bhopal  alleging  that
the petitioner no.1 and Mr. Guy Coggin had committed  fraud  of  US  10,500.
On the basis of the complaint made, FIR no. 24/2012 under  Section  420  and
34 of the Indian Penal Code  (IPC)  and  Section  66-D  of  the  Information
Technology Act, 2000 (for brevity, ‘the Act’)  was  registered  against  the
petitioners by Cyber  Police  Headquarters,  Bhopal,  M.P.   The  respondent
no.2, I.G. Cyber Cell, issued  an  order  on  20.11.2012  which  is  to  the
following effect:-
“Cyber state police having registered FIR 24/2012 under S 420, 34 of  Indian
Penal Code and 66 D  of  IT  Act  search  and  information  the  undersigned
persons are asked to go to Pune.
1. R.R. Devendra Sisodia
2. R.R. (Lady) Ishrat Praveen Khan
3. RR (Lady) Valari Upadhyay”

5.    On 21.11.2012, Dy. S.P. State Cyber Police, Bhopal proceeded  to  pass
the following order:-
“Cyber state police having registered FIR 24/2012 under  S  420,  34  Indian
Penal Code and S 66 D of IT Act accused Rini Johar and Gulshan Johar  should
be arrested and for that lady constable Ishrat Khan has  been  deputed  with
case diary with address from where they are to be found and arrested and  it
is ordered that they be brought to Bhopal.  In reference to which  you  have
been given possession of the said case diary.”

6.    We have reproduced the  said  orders  in  entirety  as  the  same  has
immense relevance to the relief sought for by the petitioners.
7.    As the narration would unfurl, on  27.11.2012,  the  petitioners  were
arrested from their residence at Pune.  Various assertions  have  been  made
as regards the legality of the arrest  which  cover  the  spectrum  of  non-
presence of the witnesses at the time of arrest  of  the  petitioners,  non-
mentioning of date, and arrest by unauthorized officers, etc.   It  is  also
asserted after they were arrested, they were taken from Pune  to  Bhopal  in
an  unreserved  railway  compartment  marked  –   ‘viklang’   (handicapped).
Despite request, the petitioner no.2, an  old  lady,  was  not  taken  to  a
doctor, and was compelled to lie on the cold floor of the train  compartment
without any food and  water.   Indignified  treatment  and  the  humiliation
faced  by  the  petitioners  have  been  mentioned  in  great  detail.    On
28.11.2012, they were produced before the learned Magistrate at  Bhopal  and
the petitioner no. 2 was enlarged on bail after being in custody  for  about
17 days and the petitioner no.1 was released after more  than  three  weeks.
There is allegation that they were forced to pay Rs.5  lakhs  to  respondent
no.3,  Deepak  Thakur,  Dy.  S.P.  Cyber  Cell,  Bhopal.    On   18.12.2012,
chargesheet was filed and thereafter a petition under Section 482  CrPC  has
been filed before the High Court for quashment of the FIR.
8.    At this stage,  it  is  pertinent  to  state  that  on  19.2.2015  the
petitioners filed an application for discharge and  the  learned  Magistrate
passed an order discharging  the  petitioners  in  respect  of  the  offence
punishable under Section 66-D of the Act.  However, learned  Magistrate  has
opined that there is prima facie  case  for  the  offence  punishable  under
Section 66-A(b) of the Act read with Section 420 and 34 of the IPC.
9.    Ordinarily, we would  have  asked  the  petitioners  to  pursue  their
remedy before the High Court. But,  a   disturbing  one,  petitioners  while
appearing in person, agonizingly submitted that this Court should look  into
the manner in which they have been arrested, how the  norms  fixed  by  this
Court have been flagrantly violated and how their dignity has  been  sullied
permitting the atrocities to reign.  It was urged  that  if  this  Court  is
prima facie satisfied that violations are absolutely impermissible  in  law,
they would be entitled to compensation.   That apart, it was contended  that
no case is made out against them  and  the  order  of  discharge  is  wholly
unsustainable.  Regard being had to the said submission,  we  appointed  Mr.
Sunil Fernandes as Amicus Curiae to assist the Court.
10.   In this writ  petition,  first  we  shall  address  to  the  challenge
relating to the validity and  legality  of  arrest,  advert  to  the  aspect
whether the petitioners  would  be  entitled  to  any  compensation  on  the
bedrock of public law remedy and thereafter finally  to  the  justifiability
of the continuance of the criminal proceedings.   Be  it  stated  here  that
this Court on 7.12.2015, taking note of the submissions of  the  petitioners
that they are not interested to prosecute their petition under  Section  482
CrPC directed that the said petition is deemed to  have  been  disposed  of.
It is also requisite to note here that despite efforts  being  made  by  the
petitioners as well as the State of M.P, respondent  no.8,  who  belongs  to
Jabalpur, M.P. could not be served.  This Court is inclined  to  infer  that
the said respondent is really not interested to appear and contest.
11.   As stated earlier, first we shall advert to  the  legality  of  arrest
and detention.  Mr. Saurabh Mishra, learned counsel appearing for the  State
of M.P. has submitted that as the State Government had already conducted  an
enquiry  in  this  regard  and  initiated  proceedings   against   the   3rd
respondent, the matter should not be adjudicated at this stage.  We are  not
disposed to accept the said submission, for  initiation  of  a  disciplinary
proceeding  or  criminal  prosecution  should  not  be  an  impediment   for
delineation as regards the violation of procedure of arrest and  curtailment
of liberty.
12.   We consider it imperative to refer to the enquiry made  by  the  State
and the findings arrived at by the enquiry officer.  It is asserted  in  the
counter  affidavit  that  the  petitioners  had  made  a  complaint  to  the
Lokayukta Police (M.P. Special Police Establishment)  alleging  that  Deepak
Thakur, respondent no.3 herein, demanded a bribe of Rs.10 lakhs for  letting
them go and pursuant to the said demand, initially a  sum  of  Rs.2,50,000/-
was paid and subsequently a  sum  of  Rs.2,50,000/-  was  also  given.   The
Lokayukta Police had already registered a preliminary  enquiry  no.  33/2015
and after enquiry submitted an enquiry report dated 18.6.2015  stating  that
prima facie case had been made out against Deepak Thakur,  Dy.  S.P.,  Cyber
Cell, Bhopal, Ishrat Khan, Head Constable,  Cyber  Cell,  Bhopal,  Inderpal,
Writer, Cyber Cell Bhopal and Saurabh Bhat, Clerk, Cyber Cell, Bhopal  under
Section 13(1)(d) and Section 13(2) of  the  Prevention  of  Corruption  Act,
1988 and Section 120B IPC.  Based on the said  preliminary  enquiry  report,
FIR No. 273/2015 dated 27.3.2015 has been  registered  against  the  accused
persons in respect of the said offences and further  steps  under  the  CrPC
are being taken.   Be it clarified, we are not at  all  concerned  with  the
launching of said prosecution and accordingly we shall  not  advert  to  the
same.
13.   It is perceivable that the State in its initial affidavit  had  stated
that the Director  General  of  Police  by  its  order  dated  8.7.2015  had
appointed Inspector General of Police, CID to enquire into  the  allegations
as regards the violation of the provisions enshrined under Section  41-A  to
41-C of CrPC.  It needs to be stated here that in  pursuance  of  the  order
passed by the Director General, an enquiry has been conducted  by  Inspector
General of Police Administration,  CID,  Bhopal.   It  has  been  styled  as
“preliminary enquiry”.  The said report dated 19.08.2015  has  been  brought
on record. The Inquiring Authority has recorded the statement of Ms.  Ishrat
Praveen Khan.  The part of her statement reads as follows:-
“… When I received the order, I requested DSP Shri Deepak Thakur that I  was
not in the District Police  Force.   I  do  not  have  any  knowledge  about
IPC/Cr.P.C./Police Regulation/Police Act and Evidence Act, IT Act as I  have
not obtained any training in Police Training  School,  nor  do  I  have  any
knowledge in this regard, nor do  I  have  any  knowledge  to  fill  up  the
seizure memo and arrest memo.  Even  after  the  request,  DSP  Shri  Deepak
Thakur asked in  strict  word  that  I  must  follow  the  order.  The  duty
certificate was granted to me on 26.11.2012, on  which  Report  No.567  time
16.30 was registered, in which there are clear  directions.   In  compliance
with this order, we reached Kondwa Police Station  in  Pune  Maharashtra  on
27.11.2012 with my team and 2 constables and 1 woman constable were sent  to
assist us from there.  The persons of the  police  station  Kondwa  came  to
know reaching Lulla Nagar that the said  area  does  not  fall  under  their
police station area so the police of Kondwa phoning Banwari  Police  Station
got to bring the force for help Banwari Police Station.   I  had  given  the
written application in PS Banwari.  The entire team  reached  the  house  of
Rini Johar and 01 laptop of  Dell  Company  and  1  data  card  of  Reliance
Company were seized. Rini Johar called her mother  Gulshan  Johar  from  the
Court furnishing information to her about  her  custody.   Thereafter,  Shri
Rini Johar had called up  the  Inspector  General  of  Police,  State  Cyber
Police Shri Anil Kumar Gupta. I and my team had taken Miss  Rini  Johar  and
Smt. Gulshan  in  our  custody.   I  and  Constable  Miss  Hemlata  Jharbare
conduced robe search of Miss Rini Johar and Smt. Gulshan Johar. Nothing  was
found on their body.”

14.   He has also recorded the statement of Devender  Sisodia,  Ms.  Vallari
Upadhyay, Ms. Hemlata Jharbare and thereafter recorded  his  findings.   The
findings arrived at in the preliminary enquiry read thus:-
“24.  Finding  of  the  preliminary  inquiry:-  It  was  found  during   the
preliminary enquiry that  Crime  No.24/12  had  been  registered  after  the
inquiry of one written complaint of the applicant Shri  Vikram  Rajput,  but
this complaint inquiry report during the investigation of  the  offence  has
been kept as the relevant evidence.  The crime was registered on  27.11.2012
under Section 420, 34 IPC read with Section 66D IT  Act,  2000  against  the
named accused persons.  The offence  was  to  the  effect  that  though  the
alleged accused persons obtained Rs.5.00  lakh,  they  did  not  supply  the
camera etc and they supplied the defective articles.  This sale  –  purchase
was conducted through the online correspondence, due to  which  the  section
of IT Act was imposed.  It was found on the preliminary  inquiry  that  Shri
Vikram Rajput gave the payment of Rs.2.50 lakh by the  bank  draft  and  the
remaining payment by cash.  The facts of the  payment  and  supply  are  now
disputed and the trial of Crime No.24/12 is pending in the competent  Court.
 Therefore, to give any inquiry finding on it would not be  proper.   It  is
clear from the documents attached to the case diary  and  the  statement  of
Shri Deepak Thakur that Shri Deepak Thakur sent 2  notices  respectively  by
the post and through the Deputy Commissioner, Economic Crime and Cyber  Pune
respectively to  Miss  Rini  Johar  on  01.06.2012  and  02.07.2012  in  the
investigation  of  the  offence,  but  they  did  not  appear   before   the
Investigator.  It has not been written above both the notices if the  notice
has been issued under Section 41A of Cr.P.C. It is also  not  clear  whether
or not these both notices were severed to Miss Rini Johar.
25. This case is related to the alleged  cheating  between  two  persons  in
respect of sale and purchase of goods.  The maximum sentence in Section  420
is the period upto 7 years and  similarly  when  the  reasons  mentioned  in
Section 41 (1)(B) are not found, the suspects of the crime  should  be  made
to appear for the interrogation  in  the  investigation  issuing  notice  to
them.  Justice Late Krishna Ayyer has held in Jolly George Varghese v.  Bank
of Cochin[1] that “No one shall  be  imprisoned  merely  on  the  ground  of
inability to fulfill a contractual obligation”.  Section  41(2)  of  Cr.P.C.
grants power to the Investigator that if the suspect  does  not  appear  for
the investigation despite the  notice,  he  can  be  arrested,  though  this
reason having been mentioned in the case diary  should  have  been  produced
before the Magistrate, but no reason for the arrest has  been  mentioned  in
the case diary.  No notice has been sent  to  the  old  woman  Smt.  Gulshan
Johar (aged about 70 years), nor has she played any role in  committing  any
offence.  Only the draft of Rs.2.50 lakh had been deposited in her  account.
 No binding ground has been mentioned in respect of her arrest in  the  case
diary.”

And again:-
“28. It has not been mentioned anywhere in the arrest memo  and  case  diary
that the information of the arrest of both women was  furnished  to  any  of
their relatives and friends.  It has become clear from the  statements  that
when both the women  were  arrested  physically  they  were  brought  to  PS
Banwari Pune, where the arrest memo was prepared.  There  is  the  signature
of Shri Amol Shetty as the witness of the seizure memo.  Shri Deepak  Thakur
has stated in his statement that the handwriting of the seizure memo  is  of
the constable Shri Indrapal. Shri Indrapal did not go as  a  member  of  the
arresting persons to Pune.  The seizure memo does not have the signature  of
Amol Shetty as well, which proves prima facie that the seizure memo was  not
prepared on 27.11.2012 in Pune.  The report  no.29/12  dated  27.11.2012  of
seeking police help in  PS  Banwari  is  recorded,  but  no  information  is
recorded at the police station that MP Police are taking by arresting  these
citizens with them.  As a result, the information of  the  arrested  persons
was neither furnished in the District Police Control Room Pune, nor  was  it
published there.  It has also been  clarified  in  the  preliminary  inquiry
that the accused persons after they were arrested were not  produced  before
the Local Judge and they were brought to Bhopal by rail.  Miss  Ishrat  Khan
stated  that  she  did  not  obtain  the  rail  warrant   of   neither   the
policepersons nor the accused during return due to paucity of time.”

And finally:-
“As such, the facts  of  arresting  both  the  suspected  women  and  making
seizure memo searching their houses not fully  following  the  procedure  of
arrest by the Investigator and police team have come  to  the  fore  in  the
preliminary enquiry prima facie.”

15.   Keeping the aforesaid facts in view, we may refer to the decisions  in
the field and the submissions canvassed by  Mr.  Fernandes,  learned  Amicus
Curiae.
16.   In Joginder Kumar v. State of U.P.[2] while considering the misuse  of
police power of arrest, it has been opined:-
“No arrest can be made because it is lawful for the  police  officer  to  do
so. The existence of the power to arrest is  one  thing.  The  justification
for the exercise of it is quite another. … No arrest should be made  without
a reasonable  satisfaction  reached  after  some  investigation  as  to  the
genuineness and bona fides of a complaint and a reasonable  belief  both  as
to the person’s complicity and even so as to  the  need  to  effect  arrest.
Denying a person of his liberty is a serious matter.”

17.   In the  said  case,  the  Court  also  voiced  its  concern  regarding
complaints of human rights  pre  and  after  arrests  and  in  that  context
observed:-
“The horizon of human rights is expanding. At the same time, the crime  rate
is also increasing. Of late, this Court has been receiving complaints  about
violations of human rights because of indiscriminate arrests. How are we  to
strike a balance between the two?

      A realistic approach should be made in  this  direction.  The  law  of
arrest is one of balancing individual rights, liberties and  privileges,  on
the one hand, and individual duties,  obligations  and  responsibilities  on
the other; of weighing and balancing the rights,  liberties  and  privileges
of the single individual and those of individuals  collectively;  of  simply
deciding what is wanted and where to put the weight  and  the  emphasis;  of
deciding which comes first — the criminal or society, the  law  violator  or
the law abider ….”

      After so stating, certain procedural requirements were set down.
18.   In D.K. Basu v. State of W.B.[3], after referring to  the  authorities
in Joginder Kumar (supra), Nilabati Behera v. State of Orissa[4]  and  State
of M.P. v. Shyamsunder Trivedi[5] the Court laid down certain guidelines  to
be followed in cases of arrest and detention till legal provisions are  made
in that behalf as preventive measures. The said guidelines read as follows:-

“(1)  The  police  personnel  carrying  out  the  arrest  and  handling  the
interrogation of the  arrestee  should  bear  accurate,  visible  and  clear
identification and name tags with their  designations.  The  particulars  of
all such police personnel who handle interrogation of the arrestee  must  be
recorded in a register.
(2) That the police officer carrying out the arrest of  the  arrestee  shall
prepare a memo of arrest at the time  of  arrest  and  such  memo  shall  be
attested by at least one witness, who may either be a member of  the  family
of the arrestee or a respectable person  of  the  locality  from  where  the
arrest is made. It shall also be countersigned by  the  arrestee  and  shall
contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in  custody
in a police station or interrogation  centre  or  other  lock-up,  shall  be
entitled to have one friend or relative or other  person  known  to  him  or
having interest in his welfare being informed, as soon as practicable,  that
he has been arrested and is being detained at the particular  place,  unless
the attesting witness of the memo of arrest is himself such a  friend  or  a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an  arrestee  must  be
notified by the police where the next friend or  relative  of  the  arrestee
lives outside the district or town through the  Legal  Aid  Organisation  in
the District and the police station of the  area  concerned  telegraphically
within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this  right  to  have  someone
informed of his arrest or detention as soon as he is put under arrest or  is
detained.
(6) An entry must be made in the diary at the place of  detention  regarding
the arrest of the person which shall also disclose  the  name  of  the  next
friend of the person who has been informed of the arrest and the  names  and
particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the  time
of his arrest and major and minor injuries, if any present on his/her  body,
must be recorded at that time. The “Inspection Memo” must be signed both  by
the arrestee and the police  officer  effecting  the  arrest  and  its  copy
provided to the arrestee.
(8) The arrestee should be subjected to medical  examination  by  a  trained
doctor every 48 hours during his detention in custody by  a  doctor  on  the
panel of approved doctors appointed by  Director,  Health  Services  of  the
State  or  Union  Territory  concerned.  Director,  Health  Services  should
prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of  arrest,  referred  to
above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during  interrogation,
though not throughout the interrogation.
(11) A police control room should be provided  at  all  district  and  State
headquarters, where information  regarding  the  arrest  and  the  place  of
custody of the arrestee shall be communicated by  the  officer  causing  the
arrest, within 12 hours of effecting the arrest and at  the  police  control
room it should be displayed on a conspicuous notice board.”


19.   Mr. Fernandes, learned Amicus Curiae, in a tabular chart  has  pointed
that none of the requirements had been complied with.  Various reasons  have
been ascribed for the same.   On  a  scrutiny  of  enquiry  report  and  the
factual assertions made, it is limpid that some of the guidelines have  been
violated. It is strenuously urged by Mr. Fernandes that Section  66-A(b)  of
the Information Technology Act, 2000 provides   maximum  sentence  of  three
years  and  Section  420  CrPC  stipulates  sentence  of  seven  years  and,
therefore, it was  absolutely  imperative  on  the  part  of  the  arresting
authority to comply with the procedure postulated in  Section  41-A  of  the
Code of Criminal Procedure.  The Court in Arnesh Kumar  v.  State  of  Bihar
and another[6], while dwelling upon the concept of arrest, was compelled  to
observe thus:-
“Arrest brings  humiliation,  curtails  freedom  and  casts  scars  forever.
Lawmakers know it so  also  the  police.  There  is  a  battle  between  the
lawmakers and the police and it seems that the police  has  not  learnt  its
lesson: the lesson implicit and embodied in CrPC. It has  not  come  out  of
its colonial image despite  six  decades  of  Independence,  it  is  largely
considered as a tool of harassment, oppression and surely not  considered  a
friend of public. The need for caution in exercising the  drastic  power  of
arrest has been emphasised time and again by the courts but has not  yielded
desired result. Power to arrest greatly  contributes  to  its  arrogance  so
also the failure of the Magistracy to check it. Not only this, the power  of
arrest is one of the lucrative sources of police  corruption.  The  attitude
to arrest first and then proceed with the rest is despicable. It has  become
a handy tool to the  police  officers  who  lack  sensitivity  or  act  with
oblique motive.”

20.   Thereafter, the Court referred to Section 41 CrPC  and  analyzing  the
said provision, opined that a person accused of an offence  punishable  with
imprisonment for a term which may be less than  seven  years  or  which  may
extend to seven years with or  without  fine,  cannot  be  arrested  by  the
police officer only on his satisfaction that such person had  committed  the
offence.  It has been further held that a police officer before  arrest,  in
such cases has to be further satisfied that  such  arrest  is  necessary  to
prevent such person from committing  any  further  offence;  or  for  proper
investigation of the case; or  to  prevent  the  accused  from  causing  the
evidence of the offence to disappear; or tampering  with  such  evidence  in
any manner; or to prevent such person from making any inducement, threat  or
promise to a witness so as to dissuade him from  disclosing  such  facts  to
the court or the police officer; or unless such accused person is  arrested,
his presence in the court whenever required cannot  be  ensured.  These  are
the conclusions, which one may reach based on facts.  Eventually, the  Court
was compelled to state:-
“In pith and core, the police officer before arrest must put a  question  to
himself, why arrest? Is it really required?  What  purpose  it  will  serve?
What object it will achieve? It is only after these questions are  addressed
and one or the other conditions as enumerated above is satisfied, the  power
of arrest needs to be exercised. In fine, before  arrest  first  the  police
officers should have reason to believe  on  the  basis  of  information  and
material that the accused has committed the offence. Apart  from  this,  the
police officer has to be satisfied further that the arrest is necessary  for
one or the more purposes envisaged by sub-clauses (a) to (e) of  clause  (1)
of Section 41 CrPC.”

21.   In the said authority, Section 41-A CrPC, which has been  inserted  by
Section 6 of the Code of Criminal Procedure  (Amendment)  Act,  2008  (5  of
2009) was introduced and in that context, it has been held that Section  41-
A CrPC makes it clear that where the arrest of  a  person  is  not  required
under Section 41(1) CrPC, the police officer is  required  to  issue  notice
directing the accused to appear before him at a specified  place  and  time.
Law obliges such an accused to appear  before  the  police  officer  and  it
further mandates that if such an accused complies with the terms  of  notice
he shall not be arrested, unless for reasons  to  be  recorded,  the  police
officer is of the opinion that the arrest is necessary. At this stage  also,
the condition precedent for arrest as envisaged under Section  41  CrPC  has
to be complied and shall be subject to the same scrutiny by  the  Magistrate
as aforesaid.
22.   We have referred  to  the  enquiry  report  and  the  legal   position
prevalent in the field.  On a studied scrutiny of the report,  it  is  quite
vivid that the arrest of the petitioners  was  not  made  by  following  the
procedure of arrest.  Section 41-A CRPC as  has  been  interpreted  by  this
Court has not been followed.  The  report  clearly  shows  there  have  been
number of violations in the arrest, and seizure.  Circumstances in  no  case
justify the manner in which the petitioners were treated.
23.   In such a situation, we are inclined to think that the dignity of  the
petitioners,  a  doctor  and  a  practicing  Advocate  has  been   seriously
jeopardized.  Dignity, as has  been  held  in  Charu  Khurana  v.  Union  of
India[7], is the quintessential quality  of  a  personality,  for  it  is  a
highly cherished value.  It is also clear that  liberty  of  the  petitioner
was curtailed in violation of law.  The freedom of  an  individual  has  its
sanctity.  When the individual liberty is curtailed in an  unlawful  manner,
the victim is likely to feel more anguished,  agonized,  shaken,  perturbed,
disillusioned and emotionally torn.  It is an assault on  his/her  identity.
The said identity is sacrosanct  under  the  Constitution.   Therefore,  for
curtailment of liberty, requisite norms are to  be  followed.   Fidelity  to
statutory safeguards instil faith of the collective in the system.  It  does
not require wisdom of a seer to visualize that for  some  invisible  reason,
an attempt has been made to corrode  the  procedural  safeguards  which  are
meant to sustain the sanguinity of liberty.  The  investigating  agency,  as
it seems, has put its sense of accountability  to  law  on  the  ventilator.
The two ladies have been arrested without following the  procedure  and  put
in the compartment of a  train  without  being  produced  before  the  local
Magistrate from Pune to Bhopal.  One need not be Argus –  eyed  to  perceive
the same.  Its visibility is as clear as the cloudless noon day.   It  would
not be erroneous to say  that  the  enthusiastic  investigating  agency  had
totally forgotten the golden words of Benjamin Disraeli:
“I repeat …. that all power is a trust – that we  are  accountable  for  its
exercise – that, from the people and for the people,  all  springs  and  all
must exist.”

24.   We are compelled to say so as liberty which is basically the  splendor
 of beauty of life and bliss of growth, cannot be allowed to  be  frozen  in
such a contrived winter.  That would tantamount  to  comatosing  of  liberty
which is the strongest pillar of democracy.
25.   Having  held  thus,  we  shall  proceed  to  the  facet  of  grant  of
compensation.  The officers of the State had played with the liberty of  the
petitioners and, in a way, experimented with it.  Law does  not  countenance
such kind of experiments as that causes trauma and pain.  In Mehmood  Nayyar
Azam v. State of Chhattisgarh[8],  while  dealing  with  the  harassment  in
custody, deliberating on the concept of harassment, the Court stated thus:-
“22. At this juncture, it becomes absolutely necessary  to  appreciate  what
is meant by the term “harassment”. In P. Ramanatha Aiyar’s Law Lexicon,  2nd
Edn., the term “harass” has been defined thus:
“Harass.—‘Injure’ and ‘injury’ are words having numerous  and  comprehensive
popular meanings, as well as having a legal import.  A  line  may  be  drawn
between these words and the word ‘harass’, excluding the latter  from  being
comprehended within the word ‘injure’ or ‘injury’. The synonyms of  ‘harass’
are:  to  weary,  tire,  perplex,  distress  tease,  vex,  molest,  trouble,
disturb. They all have relation to mental annoyance, and a troubling of  the
spirit.”

The term “harassment”  in  its  connotative  expanse  includes  torment  and
vexation. The term “torture” also engulfs the concept of torment.  The  word
“torture” in  its  denotative  concept  includes  mental  and  psychological
harassment.  The  accused  in  custody   can   be   put   under   tremendous
psychological pressure by cruel, inhuman and degrading treatment.”

26.   In the said case, emphasizing on dignity, it has been observed:-

“…..The majesty of law protects the  dignity  of  a  citizen  in  a  society
governed by law. It cannot be forgotten that the welfare State  is  governed
by the rule of law which has paramountcy. It has been said by Edward  Biggon
“the laws of a nation form the most instructive  portion  of  its  history”.
The Constitution as the organic law of the land has  unfolded  itself  in  a
manifold manner like a living organism  in  the  various  decisions  of  the
court about the rights of a person under Article 21 of the  Constitution  of
India. When citizenry rights are sometimes dashed against  and  pushed  back
by the members of City Halls, there  has  to  be  a  rebound  and  when  the
rebound takes place, Article 21 of the Constitution springs up to action  as
a protector….”

27.   In the case at hand, there has been violation of Article  21  and  the
petitioners were compelled to face  humiliation.   They  have  been  treated
with an  attitude  of  insensibility.   Not  only  there  are  violation  of
guidelines issued in the case of D.K. Basu (supra), there are also  flagrant
violation of mandate of law enshrined under Section 41 and Section  41-A  of
CrPC.  The investigating officers in no  circumstances  can  flout  the  law
with brazen proclivity.  In such a situation, the public  law  remedy  which
has been postulated in Nilawati  Behra  (supra),  Sube  Singh  v.  State  of
Haryana[9], Hardeep Singh v.  State  of  M.P.[10],  comes  into  play.   The
constitutional courts taking note of suffering and humiliation are  entitled
to grant compensation.  That has been regarded as a redeeming  feature.   In
the case at hand, taking  into  consideration  the  totality  of  facts  and
circumstances, we think it appropriate  to  grant  a  sum  of  Rs.5,00,000/-
(rupees five lakhs only) towards compensation to each of the petitioners  to
be paid by the State of M.P. within three months hence.  It will be open  to
the State to proceed against the erring officials, if so advised.
28.   The controversy does not  end  here.  Mr.  Fernandes,  learned  Amicus
Curiae would urge that it was a case  for  discharge  but  the  trial  court
failed to appreciate the factual  matrix  in  proper  perspective.   As  the
matter remained pending in this court for some time, and we had  dealt  with
other aspects, we thought it apt to hear the learned counsel for the  aspect
of continuance of the criminal prosecution.  We have narrated the  facts  at
the beginning.  The learned Magistrate by order dated  19.2.2015  has  found
existence of prima facie case for the offences punishable under Section  420
IPC and Section 66-A(b) of I.T. Act, 2000 read with Section 34 IPC.   It  is
submitted by Mr. Fernandes that Section 66-A of the I.T. Act,  2000  is  not
applicable.  The submission need not detain us any further, for Section  66-
A of the I.T.  Act,  2000  has  been  struck  down  in  its  entirety  being
violative of Article 19(1)(a) and not saved under Article  19(2)  in  Shreya
Singhal v. Union of India[11].  The only offence,  therefore,  that  remains
is Section 420 IPC.  The learned Magistrate  has  recorded  a  finding  that
there has been no impersonation.  However, he  has  opined  that  there  are
some material to show that the petitioners had intention  to  cheat.   On  a
perusal of the FIR, it is clear to us that the dispute is purely of a  civil
nature, but a maladroit effort has been made to give it a  criminal  colour.
In Devendra v. State of U.P.[12], it has been held thus:-
“.. it is now well settled that the High  Court  ordinarily  would  exercise
its jurisdiction under Section 482 of the Code of Criminal Procedure if  the
allegations made in the first information report, even if given  face  value
and taken to be correct in their entirety, do  not  make  out  any  offence.
When the allegations made in the first information report or  the  evidences
collected  during  investigation  do  not  satisfy  the  ingredients  of  an
offence, the superior courts would not encourage harassment of a  person  in
a criminal court for nothing”.
29.   In the  present  case,  it  can  be  stated  with  certitude  that  no
ingredient of Section 420 IPC is  remotely  attracted.   Even  if  it  is  a
wrong, the complainant has to take recourse to civil action.   The  case  in
hand does not fall in the categories where cognizance of the offence can  be
taken by the court and the accused can be  asked  to  face  trial.   In  our
considered opinion, the entire case projects a  civil  dispute  and  nothing
else.  Therefore, invoking the principle laid down in State  of  Haryana  v.
Bhajan Lal[13], we quash the proceedings initiated at the  instance  of  the
8th respondent and set aside the order negativing the prayer  for  discharge
of the accused persons.  The prosecution initiated against  the  petitioners
stands quashed.
30.   Consequently, the writ petition is allowed  to  the  extent  indicated
above.  There shall be no order as to costs.


                                  ........................................J.
                             [DIPAK MISRA]

                                  ........................................J.
                                        [SHIVA KIRTI SINGH]
NEW DELHI
June 03, 2016.

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[1]    AIR 1980 SC 470
[2]    (1994) 4 SCC 260
[3]    (1997) 1 SCC 416
[4]    (1993) 2 SCC 746
[5]    (1995) 4 SCC 262
[6]    (2014) 8 SCC 273
[7]     (2015) 1 SCC 192
[8]      (2012) 8 SCC 1
[9]     (2006) 3 SCC 178
[10]    (2012) 1 SCC 748
[11]    (2015) 5 SCC 1
[12]    (2009) 7 SCC 495
[13]    1992 Supp. (1) SCC 335

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