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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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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