* Author
[2024] 3 S.C.R. 1014 : 2024 INSC 232
Somnath
v.
The State of Maharashtra & Ors.
(Criminal Appeal No. 1717 of 2024)
18 March 2024
[Vikram Nath and Ahsanuddin Amanullah,* JJ.]
Issue for Consideration
Whether criminal proceedings should be initiated against a police
officer who has committed excesses on individual in police custody?
Headnotes
Constitution of India – Article 142, 226 – Appellant verbally
and physically assaulted in police custody – Appellant
illegally detained for 4 hours despite being granted bail – Subdivisional Police Officer’s inquiry report found Respondent
No. 2 responsible – Special Inspector General of Police
imposed punishment of “strict warning” in departmental
proceedings – High Court partly allowed Appellant’s writ
petition but declined to initiate criminal proceedings –
Respondent No. 2 was directed to pay Rs. 75,000/- from his
own pocket – Respondent No. 2 paid Rs. 1,75,000/- plus Rs.
25000/- – Respondent No.2 superannuated.
Held: Respondent No. 2 committed excesses against Appellant -
Supreme Court refrained from initiating criminal proceedings in
the peculiar facts – Under Article 226, High Court has power to
award compensation – Zero tolerance approach to be taken by
courts – Direction to police forces and similar agencies to adhere
to all guidelines regarding arrest and police custody. [Paras 21-24]
Case Law Cited
Delhi Judicial Service Association v. State of Gujarat
[1991] 3 SCR 936 : (1991) 4 SCC 406; Sunil Gupta v.
State of Madhya Pradesh [1990] 2 SCR 871 : (1990) 3
SCC 119; Prem Shankar Shukla v. Delhi Administration
[1980] 3 SCR 855 : (1980) 3 SCC 526; Bhim Singh,
MLA v. State of Jammu and Kashmir (1985) 4 SCC
677; D K Basu v. State of West Bengal [1996] Supp.
[2024] 3 S.C.R. 1015
Somnath v. The State of Maharashtra & Ors.
10 SCR 284 : (1997) 1 SCC 416; Sube Singh v. State
of Haryana [2006] 2 SCR 67 : (2006) 3 SCC 178 –
relied on.
Nilabati Behera v. State of Orissa [1993] 2 SCR 581 :
(1993) 2 SCC 746 – referred to.
List of Acts
Penal Code, 1860; Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989; Maharashtra Police Act, 1951
List of Keywords
Individual dignity; Personal liberty; Excess use of force; Safeguards,
arrest; Remand; Police custody; Treatment of detenu; Strict warning;
Departmental inquiry; Criminal proceedings; Compensation,
superannuated; Belated prosecution; Police officer; Colour of
official duty; Commit excess; High-handed action.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1717
of 2024
From the Judgment and Order dated 08.10.2018 of the High Court
of Judicature at Bombay at Aurangabad in CRWP No.215 of 2017
Appearances for Parties
Sandeep Sudhakar Deshmukh, Nishant Sharma, Tushar D.bhelkar,
Akshay Jagtap, Advs. for the Appellant.
Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,
Sourav Singh, Aditya Krishna, Atul Babasaheb Dakh, Bitu Kumar
Singh, Praveen Pandey, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Ahsanuddin Amanullah, J.
Leave granted.
2. Heard learned counsel for the parties.
3. The present appeal is directed against the Final Judgment and
Order dated 08.10.2018 (hereinafter referred to as the “Impugned
1016 [2024] 3 S.C.R.
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Judgment”) passed by the High Court of Judicature at Bombay,
Bench at Aurangabad (hereinafter referred to as the “High Court”)
in Criminal Writ Petition No.215 of 2017 by which the writ petition
filed by the appellant was partly allowed and the respondent no.2
was directed to pay a sum of Rs.75,000/- (Rupees Seventy Five
Thousand only) from his own pocket to the appellant.
BRIEF FACTS:
4. A First Information Report1
bearing Crime No.1-117 of 2015 for an
offence punishable under Section 3792
of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC”) was filed by one Mr. Madhukar
Vikram Gayake on 14.06.2015 with Paithan Police Station, Taluka
Paithan, District Aurangabad, State of Maharashtra (hereinafter
referred to as the “PS”) alleging that on 12.06.2015 the complainant
had come to attend the last rites of his brother-in-law and was standing
in a queue in the holy Nath Temple when some unknown persons
took away Rs.30,000/- (Rupees Thirty Thousand only), which he was
carrying in his pocket, which he realized only after coming out from
the temple. The appellant was arrested at 08:30PM in connection
with the said crime on 14.06.2015 on the basis of CCTV3
footage
showing the involvement of the appellant in the said crime.
5. On 15.06.2015, the appellant was produced before the Magistrate
at 4PM and the investigating agency sought police remand on the
ground that recovery had been made from the appellant. The request
was granted by the Magistrate and he was remanded to police
custody till 18.06.2015.
6. On 17.06.2015, the investigating agency prepared a memorandum
under Section 27 of the Indian Evidence Act, 1872 showing recovery
of Rs.30,000/- (Rupees Thirty Thousand) from the house of the
appellant.
7. On 18.06.2015, the investigating agency produced the appellant
before the Magistrate praying for further extension of police custody for
two days and the same was granted till 20.06.2015. On 19.06.2015,
1 FIR.
2 ‘379. Punishment for theft.—Whoever commits theft shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.’
3 Closed-Circuit Television.
[2024] 3 S.C.R. 1017
Somnath v. The State of Maharashtra & Ors.
the appellant was allegedly taken out of the lock-up by the respondent
no.2, the then officiating Inspector of PS, in handcuffs and paraded
half-naked with garland of footwear around his neck and is said
to have been verbally abused with reference to his caste as also
physically assaulted by the respondent no.2.
8. On 20.06.2015, the investigating agency did not ask for any further
extension of police remand and thus the appellant was remanded to
judicial custody till 04.07.2015. On the same day, the appellant filed
an application for bail in the Court of Judicial Magistrate, First Class,
Paithan, which was allowed on the condition that he would visit Police
Station on every alternate day between 1000hrs to 1300hrs till filing
of the Final Report. The appellant was not released pursuant to the
order due to the respondent no.2 not allowing him to be released
and instead had taken the appellant to the PS.
9. Mr. Rahul Raju Kamble, relative of the appellant filed application
before the Judicial Magistrate, First Class, Paithan, narrating the
chain of events and praying for directions to release the appellant
and, inter alia, praying for issuance of Show-Cause Notice to the
concerned police officer. Thereon, the Magistrate had directed
the prosecution to file its reply. However, the appellant was finally
released on 20.06.2015.
10. The Superintendent of Police, Aurangabad (Rural), on complaint made
by the appellant and others, directed the Sub Divisional Police Officer,
Paithan on 07.07.2015 to initiate inquiry on the entire issue and submit
report. The Sub Divisional Police Officer, Paithan conducted inquiry
relating to the complaint made against the respondent no.2, directing
both the appellant and respondent no.2 and other Police officers/
constables to appear and submit their statements. In his report dated
11.09.2015, it was recorded that on 19.06.2015 the appellant was
taken out from the lock-up by the respondent no.2 and paraded on
the streets of the city of Paithan and was also physically assaulted
during the said procession and held respondent no.2 responsible for
this. It further narrated that despite grant of bail to the appellant he
was illegally detained by respondent no.2 for four hours.
11. On 08.10.2015 and 09.10.2015, the sister of the appellant
complained to various authorities including the Superintendent of
Police, Aurangabad (Rural) and the President [read Chairperson],
National Human Rights Commission (hereinafter referred to as
1018 [2024] 3 S.C.R.
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the “Commission”) seeking initiation of departmental enquiry and
criminal prosecution under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to
as the “SC/ST Act”).
12. On 25.12.2015, the appellant was charge-sheeted in connection
with another FIR bearing Crime No.1-192/2015 punishable under
Section 3944
, IPC and he was sought to be declared a Proclaimed
Offender despite him being available in town and co-operating with
the investigating agency. However, the appellant was arrested on
24.05.2016 and subsequently released on bail.
13. The Special Inspector General of Police, Aurangabad Range,
Aurangabad, after perusing the Inquiry Report of the Sub Divisional
Police Officer dated 11.09.2015 and not finding the explanation of
respondent no.2 to be satisfactory, imposed punishment of “strict
warning”.
14. The appellant on 02.02.2017, approached the High Court by way
of filing Writ Petition, inter alia, praying for initiation of departmental
inquiry and criminal proceedings against respondent no.2 and also
sought compensation. The writ petition was partly allowed by the
Impugned Judgment by awarding Rs.75,000/- (Rupees Seventy Five
Thousand only) to be payable to the appellant by respondent no.2
from his own pocket but declining to give any direction for initiating
criminal action under the SC/ST Act.
SUBMISSIONS BY THE APPELLANT:
15. Learned counsel for the appellant submitted that it would be a
travesty of justice if for such blatant violation of the personal liberty
of the appellant and abuse of authority, the respondent no.2 is let
off with just “strict warning” without any real effective punishment.
It was submitted that the conduct of the respondent no.2 besides
being unprovoked was also in the teeth of the judgments of this
Court in D K Basu v State of West Bengal, (1997) 1 SCC 416
and Sube Singh v State of Haryana, (2006) 3 SCC 178, which
have laid down the guidelines of how a detenu has to be treated
4 ‘394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting
to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be punished with 1
[imprisonment for life], or with
rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.’
[2024] 3 S.C.R. 1019
Somnath v. The State of Maharashtra & Ors.
when in custody.
16. Learned counsel submitted that one of the grounds for not directing
criminal prosecution of respondent no.2 by the High Court was that
Section 1615
, Maharashtra Police Act, 1951 (hereinafter referred
to as the “Police Act”) gives protection to a police officer from any
belated prosecution, the period being six months. It was submitted
the same should not be so enforced particularly in the facts of the
present case where the appellant belongs to a weaker section and
is without the wherewithal to pursue prosecution of a police officer.
It was submitted that respondent no.2 has in fact been let off without
any punishment as “strict warning” does not translate into any effective
punishment which is also one of the minimum/minor punishments
contemplated, whereas the conduct of the respondent no.2 required
inflicting major punishment upon him.
SUBMISSIONS BY THE STATE:
17. Learned counsel for the State submitted that it has initiated
departmental proceeding against respondent no.2 and punishment
has also been awarded to him pursuant thereto.
SUBMISSIONS BY THE RESPONDENT NO.2:
18. Learned counsel for respondent no.2 submitted that the incident is
totally without any truth and only to browbeat, and to demoralise the
police, the appellant, who is habitual offender, has lodged a false
5 ‘161. Suits or prosecutions in respect of acts done under colour of duty as aforesaid not to be entertained
or to be dismissed if not instituted within the prescribed period.—(1) In any case of alleged offence
by the Revenue Commissioner, the Commissioner, a Magistrate, Police officer or other person, or of a
wrong alleged to have been done by such Revenue Commissioner, Commissioner, Magistrate, Police
officer or other person, by any act done under colour or in excess of any such duty or authority as
aforesaid, or wherein, it shall appear to the Court that the offence or wrong if committed or done was
of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if
instituted, more than six months after the date of the act complained of:
Provided that, any such prosecution against a Police Officer may be entertained by the Court, if instituted
with the previous sanction of the State Government within two years from the date of the offence.
(2) In suits as Aforesaid one month’s notice of suit to be given with sufficient description of wrong
complained of. In the case of an intended suit on account of such a wrong as aforesaid, the person
intending to sue shall be bound to give to the alleged wrong-doer one month’s notice at least of the
intended suit with sufficient description of the wrong complained of, failing which such suit shall be
dismissed.
(3) Plaint to set forth service of notice and tender of amends. The plaint shall set forth that a notice art
aforesaid has been served on the defendant and the date of such service, and shall state whether any,
and if any what tender of amends has been made by the defendant. A copy of the mid notice shall be
annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner
of service thereof.’
1020 [2024] 3 S.C.R.
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complaint, that too, much after the time prescribed under the Police
Act. It was further submitted that respondent no.2 has already paid
Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) to the
appellant i.e., Rs.1,00,000/- (Rupees One Lakh only) beyond what
was directed by the High Court and in terms of the order passed by
this Court on 07.07.20236
. It was submitted that the appellant having
been found committing the offence for which his prosecution began,
from the CCTV footage, cannot claim innocence.
19. Learned counsel submitted that on 20.06.2015 at 3PM when he
was produced before the Magistrate, the appellant did not allege
any ill-treatment much less spoke about him having been subjected
to parade in handcuffs and in a half-naked state with a garland of
footwear around his neck. Even when relatives of the appellant
had filed a complaint before the Magistrate on 20.06.2015, due to
delay in release of the appellant despite grant of bail, there was no
reference of any alleged instance of the appellant being paraded
half-naked on 19.06.2015. Further, the report of the Sub Divisional
Police Officer does not refer to the appellant having been paraded
half-naked with a garland of shoes. It was submitted that due to
the strained relationship of the respondent no.2 with the then Sub
Divisional Police Officer, who had submitted the Report, adverse
findings were recorded against the respondent no.2. Thus, it was
submitted that the Special Inspector General of Police found the
clarification submitted by the respondent no.2 to be satisfactory and
that was the reason why a punishment of only “strict warning” was
awarded. He submitted that pursuant to FIR bearing Crime No.1-
192 of 2015, the appellant could not be traced and was declared
a proclaimed offender under Section 82(4) of the Code of Criminal
Procedure, 1973 on 25.12.2015. It was further contended that only on
03.02.2017, the appellant had filed the underlying Writ Petition before
the High Court and for the first time agitating that the respondent
6 ‘Learned counsel for respondent No.2, on instructions, states that he will further compensate the
petitioner by an amount of Rs.1,00,000/- (Rupees one lakh only) within a period of four weeks from
today.
Learned counsel for the petitioner may provide the bank details of the petitioner to the learned counsel
for respondent No.2 within a week from today.
List the matter again on 22.08.2023.
If by the said date, the said amount is paid to the petitioner and the counsel for the parties make a
statement, the matter may be considered for closure on the next date. ’
[2024] 3 S.C.R. 1021
Somnath v. The State of Maharashtra & Ors.
no.2 paraded him half-naked with a garland of shoes.
20. Learned counsel submitted that in terms of Section 161 of the Police
Act, prosecution against a police officer acting under colour of official
duty after six months of the alleged act cannot be entertained and
rightly the High Court has declined to direct any action on such
prosecution.
ANALYSIS, REASONING AND CONCLUSION:
21. Having considered the facts and circumstances of the case, this Court
finds that there is enough material to indicate that respondent no.2
did commit excesses against the appellant, as the same has also
been found in an enquiry by the Commission as also relied upon by
the High Court and such finding has not been varied or interfered
with. Thus, the Court has no hesitation in strongly denouncing such
high-handed action by the respondent no.2, who being in a position
of power, totally abused his official position. However, in view of the
fact that the respondent no.2 has superannuated and during the
course of the present proceedings Rs.1,00,000/- (Rupees One Lakh
only), apart from what was ordered by the High Court, has also been
paid by the respondent no.2 from his own pocket to the appellant,
which the appellant accepted, the Court finds that the matter now
requires to be finally given a quietus. Be it noted, the appellant has
additionally received Rs.25,000/- (Rupees Twenty Five Thousand
only) as ordered by the Commission. We only add that the power of
the High Court under Article 226 of the Constitution of India to award
compensation is undoubtable, reference whereof can be made to
Nilabati Behera v State of Orissa, (1993) 2 SCC 746.
22. Accordingly, the appeal stands disposed of by upholding the Impugned
Judgment, with the modification that the respondent no.2 is held liable
to pay a further sum of Rs.1,00,000/- (Rupees One Lakh only) to
the appellant. However, as the same stands already complied with,
no further steps are required to be taken by the respondent no.2.
23. Before parting, the Court would indicate that in such matters the
Courts need to take a very strict view. A zero-tolerance approach
towards such high-handed acts needs to be adopted as such acts,
committed by persons in power against an ordinary citizen, who is in
a non-bargaining position, bring shame to the entire justice delivery
system. As such, we were considering resorting to Article 142 of the
1022 [2024] 3 S.C.R.
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Constitution of India to direct initiation of criminal proceedings, but
only because of the fact that respondent no.2 has retired and has
already paid a sum of Rs.1,75,000/- (Rupees One Lakh Seventy Five
Thousand)[Rs.75,000/- (Rupees Seventy Five Thousand) as per the
Impugned Judgment and Rs.1,00,000/- (Rupees one lakh) as per
this Court’s order dated 07.07.2023] in total to the appellant, who
has also been paid Rs. 25,000/- (Rupees Twenty Five Thousand) as
per the Commission’s order, we refrain from so directing, in these
peculiar facts and circumstances. We hold back noting that justice
ought to be tempered with mercy.
POST-SCRIPT:
24. It is sad that even today, this Court is forced to restate the principles
and directions in D K Basu (supra). Before D K Basu (supra), this
Court had expressed its concern as to how best to safeguard the
dignity of the individual and balance the same with interests of the
State or investigative agency in Prem Shankar Shukla v Delhi
Administration, (1980) 3 SCC 526. In Bhim Singh, MLA v State
of Jammu and Kashmir, (1985) 4 SCC 677, this Court noted that
police officers are to exhibit greatest regard for personal liberty of
citizens and restated the sentiment in Sunil Gupta v State of Madhya
Pradesh, (1990) 3 SCC 119. The scenario in Delhi Judicial Service
Association v State of Gujarat, (1991) 4 SCC 406 prompted this
Court to come down heavily on excess use of force by the police. As
such, there will be a general direction to the police forces in all States
and Union Territories as also all agencies endowed with the power
of arrest and custody to scrupulously adhere to all Constitutional
and statutory safeguards and the additional guidelines laid down
by this Court when a person is arrested by them and/or remanded
to their custody.
Headnotes prepared by: Result of the case:
Aishani Narain, Hony. Associate Editor Appeal disposed of.
(Verified by: Madhavi Divan, Sr. Adv.)
