REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1758 OF 2011
(Arising out of S.L.P. (Crl.) No.5412 of 2008)
RAGHUVANSH DEWANCHAND BHASIN — APPELLANT
VERSUS
STATE OF MAHARASHTRA & ANR. — RESPONDENTS
J U D G M E N T
D.K. JAIN, J.:
Leave granted.
2. This appeal, by special leave, is directed against the judgment and
order dated 26
th
November 2007, rendered by the High Court of
Judicature at Bombay, in CRL. W.P.
No.1086/2002. By the impugned judgment, while allowing the writ
petition filed by the appellant, alleging harassment on account of his
arrest on the strength of a non-bailable warrant, which had been
cancelled, the High Court has directed the delinquent police officer topay by way of costs to the appellant an amount of `2,000/- from his
own account.
3. Shorn of unnecessary details, the facts material for adjudication of the
present case, may be stated thus:
Some time in the year 2000, one, Mr. Prem Harchandrai filed a
complaint, being C.C. No. 163/P/2000, against the appellant, a practicing
Advocate, under Section 324 of the Indian Penal Code, 1860 (for short
“the IPC”), in relation to some incident alleged to have taken place in the
‘Radio Club’ at Mumbai, considered to be a club for the elite. When at a
preliminary stage, the case came up for hearing before the Additional
Chief Metropolitan Magistrate on 7
th
August, 2002, finding the appellant
to be absent, the Court issued a non-bailable warrant against him
returnable on 31
st
October, 2002. The warrant was forwarded to the
Colaba Police Station for execution. However, on 12
th
August, 2002, on
appellant’s putting in an appearance before the Court, the warrant was
cancelled.
4. On 15
th
August, 2002, the complainant approached the Colaba Police
Station and insisted on the arrest of the appellant in pursuance of the
said non-bailable warrant. Thereupon, respondent No. 2, who at that
point of time was posted as an Inspector of Police at the Colaba Police
Station, directed a constable to accompany the complainant, and
2execute the warrant. When the appellant was sought to be arrested, he
informed the constable that the said warrant had already been
cancelled. However, as he could not produce any documentary
evidence relating to cancellation of warrant, the appellant was arrested
before a public gathering which had assembled at the Radio Club, in
connection with the Independence day celebrations. He was produced
before the duty Magistrate at about 2 P.M., the same day. The
Magistrate directed the release of the appellant. It appears that the
appellant obtained the necessary confirmation about cancellation of
the warrant on the next day i.e. 16
th
August 2002 and produced the
same before respondent No. 2 on the same day. Alleging malafides
and humiliation at the hands of respondent No. 2, in collusion with the
complainant, the appellant approached the High Court, inter-alia,
praying for suitable disciplinary action against respondent No.2;
adequate compensation; damages and costs by the said respondent
from his own pocket.
5. As aforesaid, the High Court, vide impugned judgment has allowed
the writ petition, inter alia, observing thus :
“We therefore, find that there was no justification for issuance of
non-bailable warrant on 7
th
August, 2002 merely because the
petitioner had remained absent in Criminal Case No. 163/P/2000
(sic) by the Metropolitan Magistrate. The Magistrate could have
issued either a notice or a bailable warrant depending upon the
3facts revealed from the records. Once the warrant was cancelled
on 12
th
August, 2002, it was necessary for the Court to
immediately communicate the same to the concerned Police
authority so that no inconvenience could have been caused to the
person against whom the warrant was initially issued. Once the
warrant was sought to be executed on holiday and the concerned
police officer was categorically informed that the warrant had
already been cancelled and the police officer being fully aware of
the circumstances and nature of the case in which warrant had
been issued, it was necessary for the police officer to ascertain
and to find out whether the warrant which was sought to be
executed was still enforceable or had already been cancelled and
not to rush to execute the warrant in those circumstances and that
too on a holiday. Having produced the necessary documents
confirming the cancellation of the warrant much prior to the date
on which it was sought to be (sic) enforced, it was the duty of the
police officer to tender the necessary apology to the petitioner
for executing such warrant on the holiday, and the concerned
officer having failed to tender the apology it apparently shows
that he had not performed his duty in the manner he was required
to perform as a responsible police officer. Even the affidavit
filed by the respondent No. 2 nowhere discloses any repentance
for having executed the warrant which was already cancelled. It
is a clear case of unnecessary interference with the liberty of a
citizen.”
6. Thus, having failed to get the desired relief from the High Court, the
appellant is before us in this appeal.
7. Arguing the case in person, it was strenuously urged by the appellant
that having regard to the nature of offence alleged against him, in the
first place, the Additional Chief Metropolitan Magistrate erred in law
in issuing non-bailable warrant in a routine manner, without
application of mind, merely because the appellant had failed to appear
in court on 7
th
August 2002. It was asserted that since neither Section
470 nor Section 71 of the Code of Criminal Procedure, 1973 (for short
“the Code”) uses the expression “non-bailable” a Magistrate is not
authorised to issue non-bailable warrant of arrest even when an
accused fails to appear in the court. It was submitted that having held
that the respondent No.2 was guilty of misconduct, the High Court
failed to punish the said respondent under Sections 342 and 345 of the
IPC. It was argued that the misconduct of respondent No.2 was so
high that he should have been forthwith suspended from his job and
ordered to be tried in a competent criminal court. According to the
appellant, the direction of the High Court asking respondent No.2 to
pay an amount of `2,000/- by way of cost to the appellant was no
justice at all and if a strict action is not taken against such delinquent
officers, they will continue to disregard the orders of the courts with
impunity.
8. Per contra, Mr. Jay Savla, learned counsel appearing for respondent
No.2 submitted that since the appellant was unable to furnish any
document or order to establish that non-bailable warrant issued against
him by the court had been cancelled, the police authorities were left
with no option and in fact were duty bound to execute the same. It
was also urged that, as per the prevalent practice, whenever any nonbailable warrant is cancelled by the court, either memo or order
5addressed to the Senior Inspector of Police of the concerned police
station is issued and forwarded directly to the concerned police station
with a direction to return the said warrant to the court. But in the
present case no such memo or order in writing had been received at
the police station on or before 15
th
August 2002, when it was
executed. Learned counsel submitted that the said respondent having
performed his duty bona fide and in good faith, in pursuance of order
issued by the court having jurisdiction, the said respondent had not
committed any illegal act warranting any action against him.
9. It needs little emphasis that since the execution of a non-bailable
warrant directly involves curtailment of liberty of a person, warrant of
arrest cannot be issued mechanically, but only after recording
satisfaction that in the facts and circumstances of the case, it is
warranted. The Courts have to be extra-cautious and careful while
directing issue of non-bailable warrant, else a wrongful detention
would amount to denial of constitutional mandate envisaged in Article
21 of the Constitution of India. At the same time, there is no
gainsaying that the welfare of an individual must yield to that of the
community. Therefore, in order to maintain rule of law and to keep
the society in functional harmony, it is necessary to strike a balance
between an individual’s rights, liberties and privileges on the one
6hand, and the State on the other. Indeed, it is a complex exercise. As
Justice Cardozo puts it “on the one side is the social need that crime
shall be repressed. On the other, the social need that law shall not be
flouted by the insolence of office. There are dangers in any choice.”
Be that as it may, it is for the court, which is clothed with the
discretion to determine whether the presence of an accused can be
secured by a bailable or non-bailable warrant, to strike the balance
between the need of law enforcement on the one hand and the
protection of the citizen from highhandedness at the hands of the law
enforcement agencies on the other. The power and jurisdiction of the
court to issue appropriate warrant against an accused on his failure to
attend the court on the date of hearing of the matter cannot be
disputed. Nevertheless, such power has to be exercised judiciously
and not arbitrarily, having regard, inter-alia, to the nature and
seriousness of the offence involved; the past conduct of the accused;
his age and the possibility of his absconding. (Also See: State of U.P.
Vs. Poosu & Anr.
1
).
10. In Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors.
2
,
a Bench of three learned Judges of this Court cautioned that before
issuing non-bailable warrants, the Courts should strike a balance
1
(1976) 3 SCC 1
2
(2007) 12 SCC 1
7between societal interests and personal liberty and exercise its
discretion cautiously. Enumerating some of the circumstances which
the Court should bear in mind while issuing non-bailable warrant, it
was observed:
“53. Non-bailable warrant should be issued to bring a person
to court when summons or bailable warrants would be
unlikely to have the desired result. This could be when:
• it is reasonable to believe that the person will not
voluntarily appear in court; or
• the police authorities are unable to find the person to
serve him with a summon; or
• it is considered that the person could harm someone if
not placed into custody immediately.
54. As far as possible, if the court is of the opinion that a
summon will suffice in getting the appearance of the accused
in the court, the summon or the bailable warrants should be
preferred. The warrants either
bailable or non-bailable should never be issued without
proper scrutiny of facts and complete application of mind,
due to the extremely serious consequences and ramifications
which ensue on issuance of warrants. The court must very
carefully examine whether the criminal complaint or FIR has
not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should
direct serving of the summons along with the copy of the
complaint. If the accused seem to be avoiding the summons,
the court, in the second instance should issue bailable
warrant. In the third instance, when the court is fully
satisfied that the accused is avoiding the court’s proceeding
intentionally, the process of issuance of the non-bailable
warrant should be resorted to. Personal liberty is paramount,
therefore, we caution courts at the first and second instance
to refrain from issuing non-bailable warrants.”
811.We deferentially concur with these directions, and emphasize that
since these directions flow from the right to life and personal liberty,
enshrined in Articles 21 and 22(1) of our Constitution, they need to be
strictly complied with. However, we may hasten to add that these are
only broad guidelines and not rigid rules of universal application when
facts and behavioral patterns are bound to differ from case to case.
Since discretion in this behalf is entrusted with the court, it is not
advisable to lay down immutable formulae on the basis whereof
discretion could be exercised. As aforesaid, it is for the court
concerned to assess the situation and exercise discretion judiciously,
dispassionately and without prejudice.
12.Viewed in this perspective, we regret to note that in the present case,
having regard to nature of the complaint against the appellant and his
stature in the community and the fact that admittedly the appellant was
regularly attending the court proceedings, it was not a fit case where
non-bailable warrant should have been issued by the Additional Chief
Metropolitan Magistrate. In our opinion, the attendance of the
appellant could have been secured by issuing summons or at best by a
bailable warrant. We are, therefore, in complete agreement with the
High Court that in the facts and circumstances of the case, issuance of
non-bailable warrant was manifestly unjustified.
913. We shall now advert to a more anxious point, viz. the conduct of
respondent No.2, at whose direction the warrant was executed. It
needs no emphasis that any form of degrading treatment would fall
within the inhibition of Article 21 of the Constitution. In the present
case, respondent No.2 was aware that the non-bailable warrant issued
on account of failure on the part of the appellant to attend the court
proceedings on 7
th
August 2002, was returnable only on 31
st
October
2002. Undoubtedly, respondent No.2 was duty bound to execute the
warrant as expeditiously as possible but we are unable to fathom any
justifiable reason for the urgency in executing the warrant on a
National holiday, more so when it had been issued more than a week
ago and even the complaint against the appellant was in relation to the
offence punishable under Section 324 of the IPC. The complaint
related to the year 2000. At the relevant time, the offence punishable
under Section 324 of the IPC was a bailable offence. It is apparent
from the record that the warrant was executed at the behest of the
complainant in order to denigrate and humiliate the appellant at a
public place, in public view, during the course of Independence day
celebrations at Radio Club. We are convinced that respondent No.2, in
collusion with the complainant, played with the personal liberty of the
appellant in a high handed manner. The unfortunate sequel of an
unmindful action on the part of respondent No.2 was that the
1appellant, a practicing Advocate, with no criminal history, remained in
police custody for quite some time without any justification
whatsoever and suffered unwarranted humiliation and degradation in
front of his fellow members of the Club. Regrettably, he lost his
freedom though for a short while, on the Independence day. Here
also, we agree with the High Court that respondent No.2 did not
perform his duty in the manner expected of a responsible police
officer. As a matter of fact, being the guardian of the liberty of a
person, a heavy responsibility devolved on him to ensure that his
office was not misused by the complainant to settle personal scores.
The so-called urgency or promptness in execution led to undesirable
interference with the liberty of the appellant. Such a conduct cannot
receive a judicial imprimatur.
14. That takes us to the core issue, namely, whether the appellant is
entitled to any compensation for the humiliation and harassment
suffered by him on account of the wrong perpetrated by respondent
No.2, in addition to what has been awarded by the High Court. As
aforesaid, the grievance of the appellant is that imposition of a fine of
`2,000/- on respondent No.2 is grossly inadequate. His prayer is that
in addition to an adequate amount of compensation, respondent No.2
1should also be prosecuted and proceeded against departmentally for
his wrongful confinement.
15.It is trite principle of law that in matters involving infringement or
deprivation of a fundamental right; abuse of process of law,
harassment etc., the courts have ample power to award adequate
compensation to an aggrieved person not only to remedy the wrong
done to him but also to serve as a deterrent for the wrong doer.
16. In Rudul Sah Vs. State of Bihar & Anr.
3
, Y.V. Chandrachud, CJ,
speaking for a Bench of three learned Judges of this Court had
observed thus:
“One of the telling ways in which the violation of that
right can reasonably be prevented and due compliance
with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation.
Administrative sclerosis leading to flagrant infringements
of fundamental rights cannot be corrected by any other
method open to the judiciary to adopt.”
17. In Bhim Singh, MLA Vs. State of J & K & Ors.
4
, holding illegal
detention in police custody of the petitioner Bhim Singh to be
violative of his rights under Articles 21 and 22(2) of the Constitution,
this Court, in exercise of its power to award compensation under
Article 32, directed the State to pay monetary compensation to the
3
(1983) 4 SCC 141
4
(1985) 4 SCC 677
1petitioner. Relying on Rudal Sah (supra), O. Chinnappa Reddy, J.
echoed the following views:
“When a person comes to us with the complaint that he
has been arrested and imprisoned with mischievous or
malicious intent and that his constitutional and legal
rights were invaded, the mischief or malice and the
invasion may not be washed away or wished away by his
being set free. In appropriate cases we have the
jurisdiction to compensate the victim by awarding
suitable monetary compensation”.
18. In Nilabati Behera (Smt) Alias Lalita Behera Vs. State of Orissa &
Ors.
5
, clearing the doubt and indicating the precise nature of the
constitutional remedy under Articles 32 and 226 of the Constitution to
award compensation for contravention of fundamental rights, which
had arisen because of the observation that “the petitioner could have
been relegated to the ordinary remedy of a suit if his claim to
compensation was factually controversial” in Rudul Sah (supra), J.S.
Verma, J. (as His Lordship then was) stated as under:
“It follows that 'a claim in public law for
compensation' for contravention of human rights and
fundamental freedoms, the protection of which is
guaranteed in the Constitution, is an acknowledged
remedy for enforcement and protection of such rights,
and such a claim based on strict liability made by
resorting to a constitutional remedy provided for the
enforcement of a fundamental right is 'distinct from,
and in addition to, the remedy in private law for
damages for the tort' resulting from the contravention
of the fundamental right. The defence of sovereign
5
(1993) 2 SCC 746
1immunity being inapplicable, and alien to the concept
of guarantee of fundamental rights, there can be no
question of such a defence being available in the
constitutional remedy. It is this principle which
justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the
Constitution, 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, and enforcement of the fundamental right is
claimed by resort to the remedy in public law under
the Constitution by recourse to Articles 32 and 226 of
the Constitution. This is what was indicated in Rudul
Sah and is the basis of the subsequent decisions in
which compensation was awarded under Articles 32
and 226 of the Constitution, for contravention of
fundamental rights.”
In the same decision, in his concurring judgment, Dr. A.S. Anand, J. (as
His Lordship then was), explaining the scope and purpose of public law
proceedings and private law proceedings stated as under:
“The public law proceedings serve a different purpose
than the private law proceedings. The relief of monetary
compensation, as exemplary damages, in proceedings
under Article 32 by this Court or under Article 226 by the
High Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is
based on the strict liability for contravention of the
guaranteed basic and indefeasible rights of the citizen.
The purpose of public law is not only to civilize public
power but also to assure the citizen that they live under a
legal system which aims to protect their interests and
preserve their rights. Therefore, when the court moulds
the relief by granting "compensation" in proceedings
under Article 32 or 226 of the Constitution seeking
enforcement or protection of fundamental rights, it does
so under the public law by way of penalising the
1wrongdoer and fixing the liability for the public wrong
on the State which has failed in its public duty to protect
the fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it
is generally understood in a civil action for damages
under the private law but in the broader sense of
providing relief by an order of making 'monetary amends'
under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of
the citizen. The compensation is in the nature of
'exemplary damages' awarded against the wrongdoer for
the breach of its public law duty and is independent of
the rights available to the aggrieved party to claim
compensation under the private law in an action based on
tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal
law.”
19.The power and jurisdiction of this Court and the High Courts to grant
monetary compensation in exercise of its jurisdiction respectively
under Articles 32 and 226 of the Constitution of India to a victim
whose fundamental rights under Article 21 of the Constitution are
violated are thus, well-established. However, the question now is
whether on facts in hand, the appellant is entitled to monetary
compensation in addition to what has already been awarded to him by
the High Court. Having considered the case in the light of the factsituation stated above, we are of the opinion that the appellant does
not deserve further monetary compensation.
20. It is true that the appellant not only suffered humiliation in the public
gathering, and remained in judicial custody for some time but we feel
1that for what he had undergone on 15
th
August 2002, some blame lies
at his door as well. Being a practicing Advocate himself, the appellant
was fully conversant with the court procedure and, therefore, should
have procured a copy of memo/order dated 12
th
August 2002, whereby
the non-bailable warrant was cancelled by the court. As noticed
above, admittedly, the appellant applied and obtained a copy of such
order only on 16
th
August 2002. Though the conduct of respondent
No.2 in arresting the appellant, ignoring his plea that the non-bailable
warrant issued by the court in a bailable offence had been cancelled,
deserves to be deplored, yet, strictly speaking the action of respondent
No.2 in detaining the appellant on the strength of the warrant in his
possession, perhaps motivated, cannot be said to be per se without the
authority of law. In that view of the matter, in our opinion, no other
action against respondent No.2 is warranted. He has been sufficiently
reprimanded.
21.The last issue raised that remains to be considered is whether the
Courts can at all issue a warrant, called a “non-bailable” warrant
because no such terminology is found in the Code as well as in Form 2
of the Second Schedule to the Code. It is true that neither Section 70
nor Section 71, appearing in Chapter VI of the Code, enumerating the
processes to compel appearance, as also Form 2 uses the expression
1like “non-bailable”. Section 70 merely speaks of form of warrant of
arrest, and ordains that it will remain in force until it is cancelled.
Similarly Section 71 talks of discretionary power of Court to specify
about the security to be taken in case the person is to be released on
his arrest pursuant to the execution of the warrant issued under Section
70 of the Code. Sub-section (2) of Section 71 of the Code specifies
the endorsements which can be made on a warrant. Nevertheless, we
feel that the endorsement of the expression “non-bailable” on a
warrant is to facilitate the executing authority as well as the person
against whom the warrant is sought to be executed to make them
aware as to the nature of the warrant that has been issued. In our
view, merely because Form No.2, issued under Section 476 of the
Code, and set forth in the Second schedule, nowhere uses the
expression bailable or non-bailable warrant, that does not prohibit the
Courts from using the said word or expression while issuing the
warrant or even to make endorsement to that effect on the warrant so
issued. Any endorsement/variation, which is made on such warrant for
the benefit of the person against whom the warrant is issued or the
persons who are required to execute the warrant, would not render the
warrant to be bad in law. What is material is that there is a power
vested in the Court to issue a warrant and that power is to be exercised
judiciously depending upon the facts and circumstances of each case.
1Being so, merely because the warrant uses the expression like “nonbailable” and that such terminology is not to be found in either Section
70 or Section 71 of the Code that by itself cannot render the warrant
bad in law. The argument is devoid of substance and is rejected
accordingly.
22.In view of the aforegoing discussion, no ground is made out
warranting our interference with the impugned judgment of the High
Court. We confirm the judgment and dismiss the appeal accordingly,
but with no order as to costs.
23.However, before parting with the judgment, we feel that in order to
prevent such a paradoxical situation, we are faced with in the instant
case, and to check or obviate the possibility of misuse of an arrest
warrant, in addition to the statutory and constitutional requirements to
which reference has been made above, it would be appropriate to issue
the following guidelines to be adopted in all cases where non-bailable
warrants are issued by the Courts:-
(a) All the High Court shall ensure that the Subordinate
Courts use printed and machine numbered Form No.2
for issuing warrant of arrest and each such form is duly
accounted for;
(b) Before authenticating, the court must ensure that
complete particulars of the case are mentioned on the
warrant;
1(c) The presiding Judge of the court (or responsible officer
specially authorized for the purpose in case of High
Courts) issuing the warrant should put his full and
legible signatures on the process, also ensuring that
Court seal bearing complete particulars of the Court is
prominently endorsed thereon;
(d) The Court must ensure that warrant is directed to a
particular police officer (or authority) and, unless
intended to be open-ended, it must be returnable
whether executed or unexecuted, on or before the date
specified therein;
(e) Every Court must maintain a register (in the format
given below), in which each warrant of arrest issued
must be entered chronologically and the serial number
of such entry reflected on the top right hand of the
process;
(f) No warrant of arrest shall be issued without being
entered in the register mentioned above and the
concerned court shall periodically check/monitor the
same to confirm that every such process is always
returned to the court with due report and placed on the
record of the concerned case;
(g) A register similar to the one in clause (e) supra shall be
maintained at the concerned police station. The Station
House Officer of the concerned Police Station shall
ensure that each warrant of arrest issued by the Court,
when received is duly entered in the said register and is
formally entrusted to a responsible officer for
execution;
(h) Ordinarily, the Courts should not give a long time for
return or execution of warrants, as experience has
shown that warrants are prone to misuse if they remain
in control of executing agencies for long;
(i) On the date fixed for the return of the warrant, the
Court must insist upon a compliance report on the
action taken thereon by the Station House Officer of the
1concerned Police Station or the Officer In-charge of the
concerned agency;
(j) The report on such warrants must be clear, cogent and
legible and duly forwarded by a superior police officer,
so as to facilitate fixing of responsibility in case of
misuse;
(k) In the event of warrant for execution beyond
jurisdiction of the Court issuing it, procedure laid down
in Sections 78 and 79 of the Code must be strictly and
scrupulously followed; and
(l) In the event of cancellation of the arrest warrant by the
Court, the order cancelling warrant shall be recorded in
the case file and the register maintained. A copy
thereof shall be sent to the concerned authority,
requiring the process to be returned unexecuted
forthwith. The date of receipt of the unexecuted warrant
will be entered in the aforesaid registers. A copy of
such order shall also be supplied to the accused.
Format of the Register
S.
No.
The
number
printed on
the form
used
Case title and
particulars
Name &
particulars of
the person
against whom
warrant of
arrest is
issued
(accused/
witness)
The officer/
person to
whom
directed
Date of
judicial
order
directing
Arrest
Warrant to
be issued
Date
of
issue
Date of
cancellat
ion, if
any
Due
date of
return
Report
returned
on
The action
taken as
reported
Remarks
24.We expect and hope that all the High Courts will issue appropriate
directions in this behalf to the Subordinate Courts, which shall
endeavour to put into practice the aforesaid directions at the earliest,
preferably within six months from today.
2.……………………………………
(D.K. JAIN, J.)
.…………………………………….
(H.L. DATTU, J.)
NEW DELHI;
SEPTEMBER 9, 2011.
RS
2
