Disposed

Astitva Sushil Kachihar v. State of Gujarat

Gujarat HC23 Aug 2018SCR.A/9672/2016

Case brief

AI extract

What is this about?

Writ-applicants on anticipatory bail were arrested and detained by the investigating officer under Sections 107 and 151 Cr.P.C. through a chapter case and produced before the Magistrate after about 24 hours. The court held the invocation of those provisions misconceived, declined to award compensation at that stage, and directed the Director General of Police to look into the matter.

What did the court decide?

No compensation awarded at that stage; Director General of Police, State of Gujarat directed to immediately look into the matter; copies of the judgment sent to the DGP's office, Principal Secretary,

Astitva Sushil Kachihar Vs State of Gujarat — Criminal Trial and Appeal | Gujarat HC (2018)

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R/SCR.A/9672/2016 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 9672 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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ASTITVA SUSHIL KACHIHAR

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Versus

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STATE OF GUJARAT

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Appearance:

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MR KARTIK V PANDYA(2435) for the PETITIONER(s) No. 1,2 MR DHARMESH DEVNANI, APP (2) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 23/08/2018 CAV JUDGMENT

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By this writ-application under Article-226 of the Constitution of India, the writ-applicants have prayed for the following reliefs:-

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6(A) Be pleased to issue a writ, order or direction in the nature of mandamus or any other appropriate writ in the nature of

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commanding to the State Government i.e. Respondent No.1 to appoint an enquiry into the matter of the illegal arrest and illegal detention of the petitioners by the Respondent No.2, 3 and 4 and other responsible Police Officers in complete violation of the provisions of the law under the code and submit its report before this Hon'ble Court in stipulated time as directed by this Hon'ble Court;

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(B) Be pleased to issue a writ, order or direction in the nature of mandamus commanding the respondents to initiate the departmental and disciplinary proceeding against the Respondent No.2, 3 & 4 and other responsible police personnel of Section 21 Police Station, District Gandhinagar who are responsible for the illegal arrest and illegal detention of the petitioners;

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(C) Be pleased to issue a writ, order or direction in the nature of mandamus commanding the Respondents to pay adequate compensation as Hon'ble Court thinks fit;

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(D) Be pleased to issue a writ, order or direction in the nature of mandamus directing the Respondent No.1 – State of Gujarat to transfer and entrust the investigation of the case of the petitioner being I-C.R. No.178 of 2016 registered with Section 21 Police Station, District: Gandhinagar to State C.I.D. Crime or any other superior officer in rank;

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(E) Pending admission, hearing and final disposal of this petition, be pleased to direct the Respondent No.4 to make an inquiry in pursuant to the application dated 03.12.16 filed before him by petitioner no.2 into the matter of the illegal arrest and illegal detention of the petitioner no.1 by the Respondent No.2 and other responsible Police Officers in complete violation of the provisions of the law under the code and submit its report before this Hon'ble Court in stipulated time as directed by this Hon'ble Court;

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(F) Be pleased to direct the Respondent No.1 to issue instructions/ directions by way of a notification within a specified period to all concerned to follow the mandate of the Code of Criminal Procedure, 1973 with regard to the Chapter Case under the Code;

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(G) To pass any other and further orders as may be deem fit

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and proper.

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(H) Be pleased to direct the First Respondent to suspend the Respondent No.2 and Respondent No.4, pending hearing, admission and final disposal of this petition.

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(I) Be pleased to quash and set aside the proceedings being Chapter Case No.335/ 2016 initiated at the instance of second respondent as void ab initio.

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The case of the writ-applicants in their own words as pleaded in the writ-application is as under:-

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2.1 That an FIR bearing C.R. No.I-178 of 2016 was registered with Sector 21 Police Station, Gandhinagar for the alleged offence punishable U/s. 354 and 114 of I.P.C against the petitioners.

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2.2 That the petitioners were granted anticipatory bail by the Ld. Sessions Court to the Petitioner No.1 in Criminal Misc. Application No.1034/2016 vides its order dated 28.11.2016 and to the petitioner No.2 in Criminal Misc. Application No.1049/2016 vides its order dated 28.11.2016.

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2.3 That as per the conditions laid down in the orders passed by the Ld. Sessions Court granting anticipatory bail, the petitioners approached the I.O. of concerned Police Station on 03/12/2016 between 11:00 a.m. to 2:00 p.m. to furnish personal bonds and surety of like amount to the I.O. It is pertinent to mention that the Petitioners approached the concerned Police Station on 03.12.2016 and made an application to accept our bail bonds as per the conditions laid down in the order of anticipatory bail between 11:00 a.m. to 2:00 p.m.

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2.4 It is the case of the petitioner that, the I.O. accepted the bail bonds of the petitioners on 03.12.2016 and the petitioners were made to sit in the Police Station from morning 11:00 am till 05:00 pm, thereafter to the utter shock and surprise of the petitioners, the I.O. himself registered a chapter case no.335/2016 against the petitioners under Section 107 of the Code on the same day i.e.03/12/2016 on the ground that as the petitioners were granted anticipatory bail but as the complainant and the petitioners are residing in same area i.e.Gandhinagar there is every possibility for the breach of peace and harmony, therefore, it is necessary to take bonds for maintenance of peace. And subsequently, the petitioners were arrested by the I.O. on 03.12.16 at 05.00 pm in the evening under section 151 of the code and the same is reflected in the complaint dated 03.12.2016 to the executive magistrate by the I.O.

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2.5 It is further submitted that, the I.O. after arresting the petitioner no.2 did not produce him before the concerned Magistrate but the Petitioner no.1 was taken into illegal custody and illegally detained by the I.O. from 5:00 pm in the evening on 03.12.2016 and with malafide intention she had produced the petitioner no.1 before the concerned magistrate on the next day i.e. on 04.12.2016 at around 03.51 pm in the afternoon, therefore, this fact clearly shows that the I.O. without any power or authority under law detained the petitioners in illegal custody for almost 24 hours in the Police Station despite the fact that the Petitioner No.1 along with co-accused i.e. petitioner no.2 were released on anticipatory bail by the Ld. Sessions Court. Hence, the petitioners remained in illegal custody i.e.in police lock up for almost 24 hours by the I.O. and with mala fide intention produce the petitioner no.1 before the concerned magistrate on the

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next date i.e.04.12.16 almost after 24 hours of arrest which was made on 03.12.16 at 05.00 pm in the evening.

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2.6 That, it is very vital to mention that after the arrest of the petitioner no.1 was made on 05.00 pm in the evening on 03.12.16, in the arrest memo in the column no.05, it is shown that the arrest of the petitioner no.1 is informed to the relatives one named as Jatinchandra Bharu on his mobile no. but on perusal of the said mobile no. it is crystal clear that the total digit in the mobile no. is only 09 digit and in column no.08 the signature of the petitioner no.2 was taken and thereafter, the same was surpassed by applying white ink, this fact clearly shows that the arrest of the petitioner no.1 was also not informed to any of the relatives of the petitioner no.1 and the I.O. has with mala fide intention has written a mobile no. with only 9 digits in the arrest memo in column no.05. This fact itself shows the conduct of the I.O. in the hurry and hasty manner the petitioner no.1 was arrested with an oblique motive to see that, the petitioner no.1 was illegally detained in the custody of the I.O.

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2.7 That after detained in illegal custody by the I.O. for almost 24 hours, the petitioner no.1 was produced before the Magistrate on 04.12.16 and subsequently, were released on bail by Ld. Magistrate on executing the necessary bonds.

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2.8 That the petitioner no.1 made a written complaint to the D.S.P. Gandhinagar dated 03.12.16 at 06.25 pm in the evening on the same day of arrest narrating entire incident to the fact that the I.O. has illegally detained and the petitioners are put in to illegal custody by the I.O. despite the fact that the petitioners were released

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on anticipatory bail by the Ld. Sessions Court and requested to take necessary and immediate actions against the I.O. and responsible officers in the interest of justice and the said complaint was also made to the P.I. Sector-21 Police Station but despite such efforts no action was taken by the D.S.P., Gandhinagar as well as P.I. Sector-21 Police Station.

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2.9 The aforesaid facts shows that the I.O. was clearly prejudiced with the petitioners and the entire arrest was made in complete violation of the guidelines issued by the Hon'ble Supreme Court of India and by this Hon'ble Court in the case of Bharat Valji Hangama Versus The State of Gujarat passed in Special Criminal Application No.5241/2014 with regard to the arrest to be made in a Chapter Case under the Code, this shows the malafide intention of the I.O. and the complainant by violating the law with an intent to arrest the petitioner.

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2.10 It is the case of the petitioner that the entire chapter case registered and the arrest of the petitioners made thereupon is in complete violation of the powers under Section-107 of the Code.

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Thus, it appears from the above that the writ-applicants are complaining of police atrocities. They are complaining of the abuse of position, power and high-handed action on the part of the erring police officials i.e. the respondents nos.2 and 4 respectively.

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Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that more than a prima-facie case has been made out by the writ-applicants for an

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appropriate inquiry into the matter by the highest police authority of the State.

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I am of the view that the invocation of Sections-107 and 151 of the Cr.P.C. by the respondent no.2 in the facts of this case was completely misconceived and unwarranted. It is so apparent that at any cost, the respondent no.2 wanted to harass the writ-applicants and in such circumstances, went to the extent of initiating chapter proceedings on the ground that there was imminent danger to peace or likelihood of breach of peace under Section-107 CrPC.

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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 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.

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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

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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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( See also: Joginder Kumar v. State of U.P. and Ors., AIR 1994 SC 1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610 ).

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I had the occasion to explain the position of law in details in the case Bharat Valji Hangama Vs. State of Gujarat reported in 2016 (1) GLH 100 . I may quote the relevant observations:-

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5. With a view to decide the controversy involved in this petition, it will be necessary to refer to the provisions of Section 107 which reads thus:

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"107. Security for keeping the peace in other cases. - (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

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(2) Proceeding under this section may be taken before nay Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction."

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6. Sections 111 to 116 are also relevant for the purpose of this petition,

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which read as under:-

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"111. Order to be made. - When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required."

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"112. Procedure in respect of person present in Court. - If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him."

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"113. Summons or warrant in case of person not so present. - If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court;

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Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest."

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"114. Copy of order to accompany summons or warrant. - Every summons or warrant issued under section 113 Shall be accompanied by a copy of the order made under section 111, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same."

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"115. Power to dispense with personal attendance. - The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader."

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"116. Inquiry as to truth of information.- (1) When an order under section 111 has been read or explained under section 112 to a person in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to

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inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary."

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(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons - cases.

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(3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reason to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:

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Provided that -

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(a) No person against whom proceedings are not being taken over under Section 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour.

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(b) The conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111.

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(4) For the purposes of this Section the fact that a person is a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be provided by evidence of general repute or otherwise.

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(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt within the same or separate inquiries as the Magistrate shall think just.

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(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs:

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Provided that were any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.

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(7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse."

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7. The power under Section 107 can be exercised when the Special Executive Magistrate receives an information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquility. The said section further provides that if the Executive Magistrate is of the opinion that there is sufficient ground for proceeding, he may in the manner provided in the Code require such person to show cause why he should not be ordered to execute a bond (with or without sureties) for keeping peace for such period, not exceeding one year, as the Magistrate deems fit. Section 111 of the said Code mandates that when a Magistrate acting under section 107 deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force. Section 113 provides that if such person to whom notice is intended to be issued is not present in Court, the Magistrate shall issue a summons requiring him to appear. In exceptional circumstances, the said section gives powers to the learned Magistrate to issue warrant of arrest. Section 114 mandates that every summons issued under section 113 shall be accompanied by a copy of the order made under section 111 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same. Section 116 lays down the procedure for holding the inquiry.

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Under section 116, the Executive Magistrate is under an obligation to make enquiry into the truth of the information upon which action has been taken and for that purpose he has to take such further evidence as may be necessary. Sub-section (2) of section 116 mandates that such an enquiry shall be made as nearly as may be practicable in the manner prescribed for conducting the trial and recording evidence in summons cases. Sub-section (3) provides that if the Magistrate considers that immediate measures are necessary for the prevention of a breach of the peace of disturbance of the public tranquility or the commission of any offence or for the public safety, he may after commencement but before completion of the enquiry, for reasons to be recorded in

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writing direct the person in respect of whom the order under section 111 has been made to execute a bond with or without surety for keeping peace or maintaining good behaviour until conclusion of the inquiry and may detain him in custody until such bond is executed or in default of execution, until the inquiry is concluded.

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8. I may quote with profit a recent pronouncement of the Supreme Court in the case of Rajender Singh Pathania Vs. State of N.C.T of Delhi, reported in 2012 Criminal Law Journal 609, wherein the Supreme Court made the following observations as contained in paragraphs 14 and 15:-

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"14. The object of the Sections 107/151, Cr.P.C. are of preventive justice and not punitive. Section 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 107/151appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is 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.

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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 : (2005 AIR SCW 1923)). ( See also: Joginder Kumar v. State of U.P. and Ors., AIR 1994 SC 1349 : (1994 AIR SCW 1886); D.K. Basu v. State of West Bengal, AIR 1997 SC 610 : (1997 AIR SCW 233)).

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9. The events narrated above leave no doubt that the Magistrate grossly offended against the mandatory provisions contained in Sections 112,

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114 and 116 of the Code and exhibited a total lack of judicial approach. When the applicants were produced before the Magistrate by the Police, neither was the order read-over, the substance thereof explained, nor was a copy of the order delivered to them intimating them the substance of the opinion received by the Magistrate on the basis whereof the proceedings under Sec. 107 had been started. They were kept totally in dark. After their appearance in the Court, they were sent to prison and were kept in unlawful detention for a period of 7 days.

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10. The stage when a party against whom a 107 Cr.P.C. proceedings has been initiated, can be called upon to execute the interim bond. An order under sub-sec.(3) for furnishing of bond can be made only after the commencement of the inquiry and before its completion provided the allegations forming the basis of the parent proceedings or the allegations leading to the necessity for furnishing of interim bond are tested by inquiry and judicial mind is applied for ascertaining whether there is any prima facie justifiable basis for such a direction. The inquiry does not commence as soon as the delinquent appears and the notice under Sec.112 of the Code is read-out to him.

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11. The Supreme Court in the case of Madhu Limaye Vs Ved Murti AIR 1971 SC -2481, has emphasized on the position that the bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the delinquent but the mandate of the law is that the inquiry must commence and the Magistrate must proceed to ascertain the truth of the allegations by application of his judicial mind and look for the material which would substitute the allegation in true fact. The inquiry contemplated is an acceptable legal process by which allegations can be converted into facts. What that process would be should be left to the discretion of the Magistrate with reference to the fact of each case, but he must adopt an acceptable judicial method for testing the allegations and recording findings of fact with reference to the acceptability or otherwise of such allegations.

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12. Even if I accept the submissions canvassed by the learned AGP that the applicants were arrested by the Police in exercise of his powers under Sec. 151 of the Code, still they could not have been detained for a period exceeding 24 hours. So far as the second respondent, the Executive Magistrate, was concerned, in a complaint before him under Sec. 107 of the Code, he had no power to direct them to be sent to jail.

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13. Section 151 of the Code empowers the police to arrest a person, but as provided by Sec.151(2) of the Code, no person arrested under Subsec(1) of Sec. 151 could be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention was required or otherwise under any other provisions of the Code or of any

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other law for the time being in force. In such circumstances when the applicants were produced before the second respondent who was an Executive Magistrate and before whom the proceedings under sec. 107 of the Code were initiated, no question of the second respondent releasing the three persons on bail at that stage could also have ever arisen for consideration. The second respondent was completely ignorant of the law that the proceedings under Sec.107 of the Code are concerning proper bonds to be taken from the concerned persons by way of security for keeping peace. These proceedings as stated above are popularly known as the Chapter Proceedings. There is no question of any person being accused of any offence in such proceedings. The term offence has been defined under Sec.2(n) of the Code which would indicate that the proceedings under Sec. 107 of the Code have nothing to do with any accusation regarding any offence as such. The Executive Magistrate considered himself to be a Judicial Magistrate while exercising his power under Sec.107 of the Code. The applicability of Sec. 116(3) of the Code also could obviously not arise for consideration and the Executive Magistrate had not passed any order under sec. 111 of the Code. The applicability of Sec. 167 of the Code has also to be ruled-out. In the same manner the applicability of the provisions of Sections 436 and 437 are also to be ruled-out of consideration.

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14. In such circumstances referred to above the Executive Magistrate had no power, jurisdiction or authority to direct the police to send the three applicants to jail. The matter does not rest over here. Unfortunately, although the applicants were ready to furnish the bonds the same were not accepted. The applicants remained in custody for a period of 7 days and perhaps would have continued to remain but for the filing of this petition and directing the AGP to inquire about the same.

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15. In the aforesaid context I may quote with profit the observations of the Supreme Court in the case of Madhu Limaye Vs. Ved Murti AIR 1971 SC -2481.

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"It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear nobody and yet ask the petitioners to furnish bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij

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Mohan or Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore the proceedings for asking for an interim bond were completely illegal."

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It was further held by their Lordships as under :-

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"It is quite clear that the Magistrate was too much in hurry. He did not read the law to inform himself about what he was to do. Having the petitioners before him and having read to them the order under S.112 it was his duty either to release them unconditionally or to ask them to give an interim bond for good conduct but only after he had started inquiring into the truth of the information. It was for this reason that we held that the Magistrate did not act according to the law and his action after August 9, 1970 in detaining the petitioners in custody was illegal."

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16. While explaining the object of Section 107 Cr.P.C. a Constitution Bench of the Supreme Court in Madhu Limaye Vs. SDM Monghyr (AIR 1971 SC 2486) observed in paragraphs 33 and 34 of the judgment as under:-

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"33. The gist of S. 107 may now be given. It enables certain specified classes of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction. The section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of the person (if not already in custody or before the Court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reasons. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him.

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34. The section is aimed at persons, who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquility. This is an instance of preventive justice which the Courts are intended to administer. This provision like the preceding one is an aid of orderly society

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and seeks to nip in the bud conduct subversive of the peace and public tranquility. For this purpose, Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore, the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but as far as possible, the prevention of offences."

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Mr. Pandya, the learned counsel appearing for the writ-applicants vehemently submitted that the case on hand is one in which appropriate compensation should be awarded as the case is one of infringement of Article 21 of the Constitution of India.

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In Rudul Sah v. State of Bihar (AIR 1983 SC 1086) : (1983 Cri LJ 1644) , the Supreme Court has held that one of the ways in which the violation of the fundamental right under Art. 21 of the Constitution by the authorities of the State can reasonably be prevented is to direct payment of monetary compensation to the individuals whose rights are affected. Chandrachud, C.J. as his Lordship then was, who delivered the judgment on behalf of the three Judges Bench, in para 10 has held :

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". . . . . . . .Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art. 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."

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In the State of Maharashtra v. Christian Community Welfare Council of India (AIR 2004 SC 7) : (2004 Cri LJ 14) , the Supreme Court has observed that the law that the liability to pay to the aggrieved party who has suffered because of police excesses cannot be doubted and has further held that whether such compensation paid by the State can be recovered from the officers concerned will depend on the fact whether the alleged misdeeds by the officers concerned are committed in course of discharge of their lawful duties or beyond or in excess of the same and this will have to be determined in a proper inquiry.

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This issue has been considered by the Supreme Court in Rajender Singh Pathania & ors. Vs. State of N.C.T of Delhi reported in [(2011) 13 SCC 329] , wherein the Bench observed in paragraphs 17, 18 and 19 as under:-

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"17. The issue of award of compensation in case of violation of fundamental rights of a person has been considered by this Court time and again and it has consistently been held that though the High Courts and this Court in exercise of their jurisdictions under Articles 226 and 32 can award compensation for such violations but such a power should not be lightly exercised. These Articles cannot be used as a substitute for the enforcement of rights and obligations which could be enforced efficaciously through the ordinary process of courts. Before awarding any compensation there must be a proper enquiry on the question of facts alleged in the complaint. The court may examine the report and determine the issue after giving opportunity of filing 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."

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(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026; Bhim Singh, MLA v. State of J and K and Ors., AIR 1986 SC 494; Smt. Nilabati Behera v. State of Orissa and Ors., AIR 1993 SC 1960 : (1993 AIR SCW 2366); D.K. Basu v. State of W.B., AIR 1997 SC 610 : (1997 AIR SCW 233); Chairman, Railway Board and Ors. v. Mrs. Chandrima

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Das and Ors., AIR 2000 SC 988 : (2000 AIR SCW 649); and S.P.S. Rathore v. State of Haryana and Ors., (2005) 10 SCC 1).

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18. In Sube Singh v. State of Haryana and Ors., AIR 2006 SC 1117 : (2006 AIR SCW 779), while dealing with similar issue this Court held as under:

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"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 public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action."

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(See also: Munshi Singh Gautam (D) and Ors. v. State of M.P., AIR 2005 SC 402 : (2004 AIR SCW 6537); and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi and Ors., AIR 2010 SC 475 : (2009 AIR SCW 7015)).

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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."

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Having regard to the above, I am not persuaded to pass any order of compensation at this point of time. However, I direct the Director General of Police, State of Gujarat to immediately look into the matter.

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At this stage, I would like to observe that when serious allegations are levelled against the police officials in a writ-petition and such erring police officials are impleaded as a party respondent in their personal capacity, then why should the State defend such police officials through the APPs. To put it in other words, why should the APP appearing for the

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State defend an erring police officer. The police officer should be asked to engage his own lawyer and defend himself. An erring police official should not be defended at the cost of the State Exchequer.

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I also take notice of the affidavit-in-reply filed by the respondent no.2, wherein, the respondent no.2 has pleaded ignorance of law and has tendered unconditional apology. The contents of the affidavit are as under:-

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2. With regard to above referred First Information Report, though there was specific serious allegations against him, he was avoiding his arrest for two months. However, ultimately the Hon'ble Sessions Court granted Anticipatory Bail on 28.11.2016.

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3. I say and submit that pursuant to above referred Anticipatory Bail granted to the present petitioner accused he remained present on 03.12.2016, at 2:00 p.m. in the Sector 21 Police Station, Gandhinagar.

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4. I say and submit that I am conscious that the Hon'ble Court has granted Anticipatory Bail. However, during the date of FIR till the date of Anticipatory Bail granted the complaint being a lady victim has approached to the deponent several times and requested to do the needful and shall had expressed endanger to her life and liberty. She was again and again representing the investigating officer, deponent herein that if the petitioner is not being arrested, once again he will make an attempt to outrage the modesty as she resides alone in Gandhinagar City.

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5. Considering the overall situation of the victim and her mental agony, the deponent herein used the provisions of Section 151 of the Criminal Procedure Code and thereby, he was put in the Police Custody. However, since the office time was over and appropriate management for squad guard could not be arranged on that day, he was produced before Excutive Magistrate on 04.12.2016.

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6. I say and submit that since the complainant victim is from Rajasthan and is residing at Gandhinagar as a PG student, more over, she was residing with the sister of accused, and hence the accused was aware about each and every daily routine about the victim. Considering the above referred aspect that she used to reside in Gandhinagar and she was apprehending endanger, deponent herein

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has exercised the powers of section 151. However, in exercise of powers of section 151 there was no such intention to disobey the order of Learned Sessions Judge regarding anticipatory bail.

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7. I humbly request this Hon'ble Court that considering the above referred aspects and the actual situation seen by the deponent, the deponent felt proper to exercise the above referred powers of Section 151 of Criminal Procedure Code. However, if this Hon'ble Court is of the opinion that the deponent has violated any provision of law or the order of Hon'ble Sessions Judge, then deponent herein apologize unconditionally and assures that the same will not be repeated in future.

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I may only say that ignorance of law is not an excuse. A police officer is supposed to be a custodian of law and order. A police officer cannot plead ignorance of law. Whenever a citizen does something contrary to the law, the first argument advanced by the State is that ignorance of law is not an excuse. I fail to understand as to how a police officer can act totally contrary to the statutory provisions of law.

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17. With the above, this writ-application is disposed of.

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A copy of this judgment be sent to the Office of the Director General of Police, State of Gujarat. One copy shall be sent to the Principal Secretary, Home Department as well as to the Law Secretary of the State.

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(J.B.PARDIWALA, J)

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aruna

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Astitva Sushil Kachihar v. State of Gujarat

Case brief

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Astitva Sushil Kachihar v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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