REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1582 OF 2011
(Arising out of SLP(Crl.) No.1773 of 2008)
Rajender Singh Pathania & Ors. ...
Appellants
Vs.
State of N.C.T. of Delhi & Ors. ... Respondents
With
CRIMINAL APPEAL NO. 1583 OF 2011
(Arising out of SLP(Crl.) No.5702 of 2008)
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted in both the matters.
2. These appeals have been preferred against the same judgment
and order dated 25.2.2008 passed by the High Court of Delhi in Writ
Petition (Crl.) No.264 of 2007 by which the High Court has quashed
the criminal case registered against respondent nos. 3 and 4; directed
Central Bureau of Investigation (hereinafter called `CBI') to investigate
the case in respect of the allegations made by the said respondents
against the appellant nos. 2 to 4; and awarded a compensation of
Rs.25,000/- each to the said respondents for wrongful confinement.
3. FACTS:
A. On 3.2.2007, Constable Virender Kumar, Head Constable
Krishan Singh and Constable Jai Kumar, appellant nos. 2 to 4
respectively while patrolling in the area found that Sanjeev Kumar
Singh and Dalip Gupta, respondent nos.3 and 4 respectively were
fighting with each other in an intoxicated condition. The said
appellants tried to pacify them but in vein. After realising that they
were in drunken condition the aforesaid appellants took both the said
respondents to the hospital for medical examination wherein they
misbehaved with the Doctor and other staff of the hospital. After
medical examination, it was opined that both the said respondents had
taken alcohol.
B. The said respondents were booked under Sections 107/151 of the
Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.') and
were produced before the Special Executive Magistrate (hereinafter
called `the Magistrate') on 4.2.2007. The Magistrate issued show
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cause notice as to why they should not be ordered to execute personal
bond of Rs.5,000/- each with a surety in the like amount for
maintaining peace for a period of one year. The said respondents could
not furnish the bonds and thus, the Magistrate sent both of them to
judicial custody. The said respondents furnished the bond of
Rs.15,000/- each on the next day, i.e., 5.2.2007 and were released.
C. The said respondents filed Criminal Writ Petition No.264 of
2007 on 19.2.2007 before the High Court of Delhi praying mainly for
quashing of the proceedings under Sections 107/151 Cr.P.C. and
further asked to initiate criminal proceedings against the appellant
nos.2 to 4 and award them compensation for illegal detention. The writ
petition came for hearing on 26.2.2007. The standing counsel
appearing for the State took notice on behalf of all the respondents in
the writ petition. The High Court directed the police authorities to
submit the status report. The appellant no.1 after making an inquiry in
the case submitted the status report on 10.7.2007. The petition was
heard on 31.10.2007 and has been allowed vide judgment and order
dated 25.2.2008. Hence, these appeals.
4. Shri P.P. Malhotra, learned Additional Solicitor General
appearing for the State of NCT Delhi and Shri Pradeep Gupta, learned
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counsel appearing for the appellants, have submitted that both the said
respondents had been under the influence of liquor and were fighting
with each other at a public place, thus, there was danger of breach of
peace and tranquillity. Appellant nos.2 to 4 tried to pacify them but the
said respondents did not pay any heed. They had been booked under
Sections 107/151 Cr.P.C. and produced before the Magistrate on the
next day. The Magistrate after completing legal formalities directed
that they may be released on furnishing the bonds to the tune of
Rs.5,000/- each with a surety in the like amount. The said respondents
were not in a position to submit the bail bonds on the said date and
thus, could not be released on 4.2.2007. However, on the next day,
they submitted the bail bonds voluntarily for a sum of Rs.15,000/-
each, and thus, they were released. Factual averments made in the writ
petition were totally false.
Appellants had not been served personal notices and had no
opportunity to defend themselves. The order impugned has been passed
in flagrant violation of the principle of natural justice. Such a petty
matter does not require to be investigated by the CBI. Token
compensation to the tune of Rs.25,000/- has been awarded to each of
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the said respondents without determining the factual controversy.
Hence, the appeals deserve to be allowed.
5. On the contrary, the learned counsel appearing for the
respondent nos. 3 and 4 has opposed the appeals contending that the
appellants had violated fundamental rights of the contesting
respondents and detained them in jail without any justification,
therefore, the matter is required to be investigated by the CBI or some
other independent investigating agency. Token compensation has
rightly been awarded by the High Court. The appeals lack merit and are
liable to be dismissed.
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
7. In the writ petition, admittedly, altogether there were seven
respondents, including the present appellants and the Magistrate who
had passed the order under Sections 107/151 Cr.P.C. Record of the
case reveals that the matter was listed for the first time on 26.2.2007
and the learned standing counsel for the State accepted notice on
behalf of all the seven respondents therein. Most of the respondents
before the writ court had been impleaded by name in personal capacity
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making allegations of exceeding their powers and abusing their
positions. There is nothing on record to show that the standing counsel
had any communication with persons against whom allegations of mala
fide had been alleged, particularly, appellant nos. 2 to 4 and the learned
Magistrate, respondent no.5 herein. Thus, none of them had an
opportunity of appearing before the High Court. We do not find any
force in the submission made by learned counsel appearing for the
original writ petitioners that as the State had been representing all of
them, there was no need to hear each and every individual.
Undoubtedly, the judgment and order impugned in these appeals has
been passed in flagrant violation of the principles of natural justice and,
thus, liable to be set aside solely on this ground.
8. The status report had been submitted before the High Court after
having proper investigation, stating that the writ petitioners had been
under the influence of alcohol and been abusing, threatening and
quarrelling each other at the public place. The police personnel could
not control them. When they were taken to the hospital for medical
check up they were found intoxicated, and they misbehaved with the
doctor and staff of the hospital also. It had been brought to the notice of
the High Court that Sanjeev Kumar - respondent no. 3, had been
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threatening the police officials that his cousin Shri Aushutosh Kumar
was a Metropolitan Magistrate in Tis Hazari Courts, Delhi and he
would teach them a lesson for ever. It was further pointed out that Shri
Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No.
9868932336 had a talk with appellant no.1-Rajender Singh Pathania,
SHO, PS Samaipur Badli, at 10.00 P.M. on his mobile No.
9810030663 for more than three minutes on 3.2.2007. The Magistrate
had passed the release order of the said respondents, however, they
could not be released because they failed to furnish the personal bond
with a surety in the like amount. The High Court while passing the
order did not consider it proper to have an investigation on the material
facts regarding demand of bribe to the tune of Rs.500 from the writ
petitioners or regarding the mis-behaviour of the said respondents with
the doctor and staff of the hospital. The medical report reveals that
they were intoxicated. The relevant part of the medical report dated
3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital,
Jahangirpuri, Delhi reads as under:
"Smell of alcohol ++
Patient had been irritating and misbehaving with
the doctor and staff"
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9. No further investigation or inquiry had been conducted on the
charge of abusing, threatening and quarrelling by the writ petitioners
with each other. Though the High Court reached the conclusion that
the said respondents had been kept behind the bar for one day resulting
into violation of their fundamental rights, without realising that since
they failed to furnish bonds, no other option was available and they
were sent to judicial custody in view of the order of the Magistrate. If
the writ petitioners were aggrieved of the same, they could have
challenged the same by filing appeal/revision. We failed to understand
under what circumstances the writ petition has been entertained for
examining the issue of illegal detention, particularly, in a case where
there was a justification for keeping them in judicial custody.
10. The High Court reached the conclusion that in spite of the fact
that the Magistrate passed the order to furnish the bonds of Rs.5,000/-
each, the bonds had been accepted for Rs.15,000/-. There is nothing
on record to show that any of writ petitioners had raised the grievance
before the Magistrate enhancing the amount of personal bonds. In fact,
the said writ petitioners themselves voluntarily submitted bonds for
Rs.15,000/- and therefore, no illegality could be found on that ground.
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11. The judgment and order impugned herein shocked our judicial
conscience as under what circumstances such a petty incident was
considered by the High Court to be a fit case to be referred to the CBI
for investigation.
12. This very Bench recently in Disha v. State of Gujarat & Ors.,
JT (2011) 7 SC 548, while relying upon earlier judgments of this
Court in Ashok Kumar Todi v. Kishwar Jahan & Ors., JT (2011) 3
SC 50; and Narmada Bai v. State of Gujarat, JT (2011) 4 SC 279,
came to the conclusion that for directing the CBI to hold the
investigation the court must be satisfied that the opposite parties are
very powerful and influential persons or the State authorities like top
police officials are involved and the investigation has not proceeded
with in proper direction or it has been biased. In such an eventuality, in
order to do complete justice a direction to the CBI to investigate the
case can be issued.
13. In the instant case, the grievance of the writ petitioners basically
had been against the two Constables and one Head Constable. It was
not a case where it could be held that the State authorities were
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interested or involved in the incident. Thus, in our opinion, it was not a
fit case where investigation could be handed over to the CBI.
It is not only in the instant case that the High Court has
directed CBI to investigate but it is evident from the other connected
cases which have been heard along with these appeals and are being
disposed of by separate order, that on the same day i.e. 25.2.2008 the
same Hon'ble Judge directed CBI enquiry in another paltry case under
Sections 107/151 Cr.P.C. Further on 28.2.2008 CBI enquiry was
directed in another case also under Sections 107/151 Cr.P.C.. Thus, it
is evident that the High Court has been passing such directions in a
most casual and cavalier manner considering that each and every
investigation must be carried out by some special investigating agency.
14. The object of the Sections 107/151 Cr.P.C. are of preventive
justice and not punitive. S.151 should only be invoked when there is
imminent danger to peace or likelihood of breach of peace under
Section 107 Cr.P.C. An arrest under S.151 can be supported when the
person to be arrested designs to commit a cognizable offence. If a
proceeding under Sections 107/151 appears to be absolutely necessary
to deal with the threatened apprehension of breach of peace, it is
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incumbent upon the authority concerned to take prompt action. The
jurisdiction vested in a Magistrate to act under Section 107 is to be
exercised in emergent situation.
15. A mere perusal of Section 151 of the Code of Criminal Procedure
makes it clear that the conditions under which a police officer may
arrest a person without an order from a Magistrate and without a
warrant have been laid down in Section 151. He can do so only if he has
come to know of a design of the person concerned to commit any
cognizable offence. A further condition for the exercise of such power,
which must also be fulfilled, is that the arrest should be made only if it
appears to the police officer concerned that the commission of the
offence cannot be otherwise prevented. The Section, therefore,
expressly lays down the requirements for exercise of the power to
arrest without an order from a Magistrate and without warrant. If these
conditions are not fulfilled and, a person is arrested under Section 151
Cr.P.C., the arresting authority may be exposed to proceedings under
the law for violating the fundamental rights inherent in Articles 21 and
22 of Constitution. (Vide: Ahmed Noormohmed Bhatti v. State of
Gujarat and Ors., AIR 2005 SC 2115).
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(See also: Joginder Kumar v. State of U.P. and Ors., AIR 1994 SC
1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610).
16. In the instant case the proceedings under Sections 107/151
Cr.P.C. were initiated on 4.2.2007 and the High Court has quashed the
proceedings. At such a belated stage, correctness of the decision to
that extent does not require consideration. Even otherwise the issue
regarding quashing of those proceedings at this stage remains purely
academic. So, we uphold the impugned judgment to that extent.
17. The issue of award of compensation in case of violation of
fundamental rights of a person has been considered by this Court time
and again and it has consistently been held that though the High Courts
and this Court in exercise of their jurisdictions under Articles 226 and
32 can award compensation for such violations but such a power
should not be lightly exercised. These Articles cannot be used as a
substitute for the enforcement of rights and obligations which could be
enforced efficaciously through the ordinary process of courts. Before
awarding any compensation there must be a proper enquiry on the
question of facts alleged in the complaint. The court may examine the
report and determine the issue after giving opportunity of filing
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objections to rebut the same and hearing to the other side. Awarding of
compensation is permissible in case the court reaches the same
conclusion on a re-appreciation of the evidence adduced at the enquiry.
Award of monetary compensation in such an eventuality is permissible
"when that is the only practicable mode of redress available for the
contravention made by the State or its servants in the purported
exercise of their powers."
(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026;
Bhim Singh, MLA v. State of J&K & Ors., AIR 1986 SC 494; Smt.
Nilabati Behera v. State of Orissa & Ors., AIR 1993 SC 1960; D.K.
Basu v. State of W.B.,AIR 1997 SC 610; Chairman, Railway Board
& Ors. v. Mrs. Chandrima Das & Ors., AIR 2000 SC 988; and
S.P.S. Rathore v. State of Haryana & Ors., (2005) 10 SCC 1).
18. In Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117,
while dealing with similar issue this Court held as under:
"In cases where custodial death or custodial
torture or other violation of the rights guaranteed
under Article 21 is established, the courts may
award compensation in a proceeding under Article
32 or 226. However, before awarding
compensation, the Court will have to pose to itself
the following questions: (a) whether the violation
of Article 21 is patent and incontrovertible, (b)
whether the violation is gross and of a magnitude
to shock the conscience of the court, (c) whether
the custodial torture alleged has resulted in
death..... Where there are clear indications that
the allegations are false or exaggerated fully or in
part, the courts may not award compensation as a
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public law remedy under Article 32 or 226, but
relegate the aggrieved party to the traditional
remedies by way of appropriate civil/criminal
action."
(See also: Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR
2005 SC 402; and Bharat Amratlal Kothari v. Dosukhan
Samadkhan Sindhi & Ors., AIR 2010 SC 475).
19. In view of the above, we are of the considered opinion that the
High Court erred in awarding even token compensation to the tune of
Rs.25,000/- each as the High Court did not hold any enquiry and
passed the order merely after considering the status report submitted by
the appellant no.1 without hearing any of the persons against whom
allegations of abuse of power had been made. Such an order is liable
to be set aside.
20. In view of the above, appeals succeed and are allowed.
Judgment and order impugned herein is set aside except to the extent
that the proceedings under Sections 107/151 Cr.P.C. against the
contesting respondents stood quashed.
...............................
J. (P. SATHASIVAM)
...............................J.
New Delhi, (Dr. B.S. CHAUHAN)
August 12, 2011
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