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.
-----------------------
[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
-----------------------
27
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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