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 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.  

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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

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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.

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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

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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

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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.  

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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

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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

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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:-

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“…  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

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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

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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 Cochin1 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

1 AIR 1980 SC 470

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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:-  

2 (1994) 4 SCC 260

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“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 ….”

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 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 Orissa4 and  State of M.P. v. Shyamsunder

Trivedi5 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

3 (1997) 1 SCC 416 4 (1993) 2 SCC 746 5 (1995) 4 SCC 262

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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.

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(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

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of Bihar and another6, 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

6 (2014) 8 SCC 273

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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.”

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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

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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 India7, 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 7  (2015) 1 SCC 192

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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,

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experimented with it.  Law does not countenance such kind

of  experiments  as  that  causes  trauma  and  pain.   In

Mehmood Nayyar Azam v. State of Chhattisgarh8, 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:-

8   (2012) 8 SCC 1

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“…..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  Haryana9,  Hardeep Singh v.  State of  M.P.10,

9  (2006) 3 SCC 178 10  (2012) 1 SCC 748

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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

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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 India11.

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”.

11  (2015) 5 SCC 1 12  (2009) 7 SCC 495

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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 Lal13, 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.

13  1992 Supp. (1) SCC 335

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