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Illegal Police arrest against Constitutional right to Dignity

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.

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 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 th 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. 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 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 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.

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 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 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:-

“… 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 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 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 Cochin 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
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. while considering the misuse of police power of arrest, it has been opined:-

“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 ….”

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 Orissa and State of M.P. v. Shyamsunder Trivedi 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
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.

(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 of Bihar and another, 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 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.”

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 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 India, 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 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, 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:-

“…..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 Haryana, Hardeep Singh v. State of M.P 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 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 India.

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”.

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 Lal, 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.

[DIPAK MISRA]
[SHIVA KIRTI SINGH]
NEW DELHI
June 03, 2016.

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