Bombay High Court
Satish S/O. Baburao Dawle vs State Of Mah. Thr. The Secretary, Home ... on 27 April, 2026
2026:BHC-NAG:6470-DB
1 CRI.WP.454-2023.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 454 OF 2023
Satish S/o Baburao Dawle,
Age 70 years Occ: Business,
R/o. Plot No. 178, Gandhi Nagar,
Behind Hanuman Mandir, Ambajhari
Nagpur District Nagpur. PETITIONER
Versus
1. State of Maharashtra,
Thr. the Secretary, Home Department,
Mantralaya, Mumbai- 32.
2. Police Station Officer,
Police Station Ambajhari,
Nagpur City Nagpur.
3. Shri S J Kendre,
Aged Major, Occ: Police Sub Inspector,
C/o Police Station Ambajhari,
Dist. Nagpur.
4. Sau. Surbhi W/o Aniket Dhavale,
Aged about 30 years Occ:
R/o C/o Dr. Padmarao, Plot No. 65,
S-2, Second floor Aniruddha
Apartment, Khare Town Dharampeth,
Nagpur. RESPONDENTS
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Mr. P.S. Tiwari, Advocate for the Petitioner.
Mr. S.A. Ashirgade, APP for the Respondent Nos. 1 & 2/State.
Mr. S.P. Sonwane, Advocate for the Respondent No.3.
-----------------------------------------------
2 CRI.WP.454-2023.JUDGMENT.odt
CORAM : URMILA JOSHI PHALKE AND
NIVEDITA P. MEHTA, JJ.
RESERVED ON : 20th APRIL, 2026.
PRONOUNCED ON : 27th APRIL, 2026.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by the consent of learned Counsel appearing for the respective parties.
3. By this Petition, the Petitioner is seeking the directions to quash and set aside the First Information Report bearing Crime No.14/2023 registered at Police Station Ambajhari, Nagpur City for the offence punishable under Sections 354(A), 294, 504, 506 and 427 of the Indian Penal Code (for short "IPC") and to declare that the detention of the Petitioner by the Respondent Nos. 2 and 3 was illegal and to conduct an enquiry to take appropriate action against the Respondent No.3 for illegally detaining the Petitioner and thereby violating the fundamental right of the Petitioner guaranteed under Article 21 of the Constitution of India.
3 CRI.WP.454-2023.JUDGMENT.odt
4. As per the contention of the Petitioner, the Petitioner was arraigned as an accused in Crime No. 14/2023 for the offence punishable under Sections 354(A), 294, 504, 506 and 427 of IPC, on the basis of a report lodged by the Respondent No.4/Surbhi Dhavale who is the daughter-in-law of the Petitioner. As per his contention, he is a senior citizen and running a business in the name of Satish Travels and his son is also working with him. In November 2017, his son got married with the Complainant/Respondent No.4 but family dispute arose between him and his son and his wife Complainant was insisting him to stay separately. His son has not approved the said desire, and therefore, she was having grudge against him. Despite all the efforts the Complainant started residing separately after the marriage in a rented premises from April 2018. Subsequently, she started disowning the Petitioner from the business also by instigating her husband and on her insistence his son was also started asking him not to come to the office. To wreck vengeance and to settle her score she has lodged the report against the present Petitioner alleging that he has outraged her modesty on 12.02.2022 by abusing her in a filthy language and also caused the damage to the articles 4 CRI.WP.454-2023.JUDGMENT.odt which were lying in the office. On the basis of the said report Police have registered the crime against the present Petitioner.
5. After registration of the crime in response to the notice the present Petitioner approached to the Police Station. Prior to that, the Respondent No.3 visited his office and threatened him to come to the Police Station or he would arrest him. The Petitioner immediately went to the Police Station and tendered his explanation and also stated that no such incident has occurred but the Respondent No.3 without showing him the grounds of arrest, arrested him and put him behind bars. Thus, the Respondent No.3 violated the guidelines issued by the Hon'ble Apex Court and also violated Article 21 of the Constitution of India. More specifically the personal liberty of the present Petitioner and produced him before the Court. The Judicial Magistrate First Class, Nagpur has released him on bail. The Petition is filed on the ground that, the Respondent No.3 has arrested him and curtailed his right of life and liberty and thus there is a violation of the Article 21 of the Constitution of India and thereby action is required against the Respondent No.3 by the Respondent Nos. 1 and 2 and also claimed the 5 CRI.WP.454-2023.JUDGMENT.odt compensation.
6. Heard Mr. Tiwari, learned Counsel for the Petitioner. He endorsed the same contentions and submitted that, in view of the decision of the Hon'ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr., (2022) 10 SCC 51, the guidelines are issued as far as the arrest of the accused is concerned in a cognizable offences. The Respondent No.3 has violated the said guidelines and thereby violated the Article 21 of the Constitution of India also. He submitted that, the offence punishable under Sections 354-A of IPC is though cognizable but it is a bailable offence. The notice issued to the present Petitioner under Section 41 nowhere discloses that the grounds of arrest are communicated to the present Petitioner. The reasons mentioned in the said notice nowhere discloses why the arrest of the present Petitioner was required and thus inhuman treatment was given to the present Petitioner, due to which he was embarrassed, as after arrest he was produced before the Court by the Respondent No.3. Thus, the act of the Respondent No.3 violating Article 21 of the Constitution of India deserves an action against him. He further 6 CRI.WP.454-2023.JUDGMENT.odt submitted that, as the right of life and liberty of the present Petitioner is violated, and therefore, the Petitioner is also entitled for receiving the compensation. He further submitted that, the offences punishable under Sections 354-A and 294 of IPC though cognizable but bailable one. Similarly, the offence punishable under Section 427 of IPC is non-cognizable and bailable one.
7. During the submissions, the learned Counsel for the Petitioner submitted that, he is not pressing prayer clause (1) regarding the quashing of FIR as well as prayer clause (3) of conducting the enquiry, as enquiry is already conducted and punishment of Censure is already imposed on him, and therefore, he is only pressing the prayer to the extent of the compensation. In support of his prayer, he also placed reliance on the decision of the Division Bench of this Court at Principal Seat in Veena Sippy Major Vs. Narayan Dumbre, then Senior Inspector of Police & Ors., 2012 SCC OnLine Bom 339.
8. Per contra, Mr. Ashirgade, learned APP strongly opposed the said contention and submitted that regarding the arrest of the Petitioner, the Respondent No.3 is already warned 7 CRI.WP.454-2023.JUDGMENT.odt as during enquiry it revealed that he has violated the guidelines issued by the Hon'ble Apex Court. The act of the Respondent No.3 was not intentional one as the victim has lodged the report and there was a pressure to take an action, and therefore, inadvertently the said action was taken but notice was already given to the Petitioner before his arrest, and therefore, during departmental enquiry the punishment of Censure is already imposed on him, and therefore, no further action is required.
9. Mr. Sonwane, learned Counsel for the Respondent No.3, also endorsed the said contentions and submitted that the act of the present Respondent No.3 was unintentional. He has already issued the notice under Section 41(a)(1) of the Code of Criminal Procedure (for short "Cr.P.C.") to the Petitioner. Even it is accepted that, he has not complied with the directions issued by the Hon'ble Apex Court, the enquiry is already conducted against him and the punishment is already imposed on him. In view of that, the prayer for compensation deserves to be rejected.
10. After hearing both the sides and on perusal of the record it reveals that there is no dispute that the daughter-in-
8 CRI.WP.454-2023.JUDGMENT.odt law of the present Petitioner has lodged the report against him alleging that he has outraged her modesty and abused her in a filthy language and caused damage to the office articles. After registration of the crime notice under Section 41(1)(b)(ii) of Cr.P.C. was given to the Petitioner. The entry was also taken in the General Diary regarding issuance of the said notice. The Investigation papers further shows that, the Petitioner was arrested when he in response to the notice approached to the Police Station. Admittedly, the offence under Section 354-A of IPC which was registered against the present Petitioner is cognizable, bailable one and triable by the Magistrate. Similarly, offence under Section 294 of IPC dealing with obscene acts and songs is also cognizable, bailable and triable by the Magistrate and offence punishable under Section 427 of IPC is non-cognizable, bailable and triable by the Magistrate.
11. Now, the question before us is that whether the act of the Respondent No.3 is sufficient to held that he has violated the Article 21 of the Constitution of India when arrested the Petitioner. Before referring to the concerned provision, it is necessary to consider the guidelines issued by the Hon'ble Apex 9 CRI.WP.454-2023.JUDGMENT.odt Court in the case of Satender Kumar Antil (supra). These directions are given for the investigation agencies and also for the Courts.
12. Section 41 of Cr.P.C. deals with when police may arrest without warrant, which reads as under:
"41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or 10 CRI.WP.454-2023.JUDGMENT.odt
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India;
or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, 11 CRI.WP.454-2023.JUDGMENT.odt provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate."
13. It is further observed by the Hon'ble Apex Court while incorporating Sections 41 and 41-A of Cr.P.C., which reads as under:
"23. Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.
24. This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in 12 CRI.WP.454-2023.JUDGMENT.odt writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons.
25. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.
26. Section 41-A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41-B deals with the procedure of arrest along with mandatory duty on the part of the officer."
14. On the scope and objective of Sections 41 and 41-A, the Hon'ble Apex Court by referring Article 21 of the Constitution observed that, these Sections are facets of Article 21 of the Constitution and refers the judgment of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 , which is reproduced as under:
"7.1. From a plain reading of the aforesaid provision, it is evident 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 punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing 13 CRI.WP.454-2023.JUDGMENT.odt 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.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. 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.
8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey:
8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
14 CRI.WP.454-2023.JUDGMENT.odt 8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-
bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. 8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
9. ...The aforesaid provision makes it clear that in all cases 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 15 CRI.WP.454-2023.JUDGMENT.odt 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."
15. Thus, while interpreting the provisions, the Hon'ble Apex Court specifically observed that, the consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail. Moreover, the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons.
16. Admittedly, the offences registered against the present Petitioner for which punishment provided is 16 CRI.WP.454-2023.JUDGMENT.odt imprisonment upto 3 years. As already observed that, Section 41 deals with the procedure when police may arrest without warrant. Section 41-A deals with notice of appearance before the Police Officer. Herein the present case, the notice issued to the present Petitioner is under Section 41(1)(b)(ii). So Section 41(1) which deals with-
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such 17 CRI.WP.454-2023.JUDGMENT.odt evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.
The proviso shows that, a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
17. Thus, it shows that, if the police officer intending to arrest any such person he has to record his reasons in writing. Similarly, if he is not intending to arrest then also he has to record the reasons in writing for not making the arrest. Thus, Section 41 under Chapter V of Cr.P.C., deals with arrest of persons.
18. The Hon'ble Apex Court in the judgment of 18 CRI.WP.454-2023.JUDGMENT.odt Satender Kumar Antil (supra) observed that, even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest.
19. In the light of the above said provision if the notice is given to the present Petitioner is perused, it nowhere shows that any grounds of arrest are informed to the Petitioner by the said notice.
20. Thus, admittedly, it is the violation of the guidelines issued by the Hon'ble Apex Court in the case of Satender Kumar Antil (supra). The grounds raised by Petitioner is that though the offence is cognizable, however, it is bailable one and the Petitioner has already responded to the notice and approached to the Investigating Officer/Respondent No.3 but Respondent No.3 without communicating with him the grounds of arrest, 19 CRI.WP.454-2023.JUDGMENT.odt arrested him and detained him in bailable offence and subsequently produced him before the Magistrate, and therefore, it is a clear case of violation of his personal liberty under Article 21 of the Constitution of India.
21. At this stage the observations of the Hon'ble Apex Court in the case of Rudul Sah Vs. State of Bihar & Anr., (1983) 4 SCC 141, is relevant, wherein it is held that:
"Although Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, such as money claims, the Supreme Court in exercise of its jurisdiction under this Article can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The petitioner can be relegated to the ordinary remedy of a suit if his claim to compensation was factually con-troversial, in the sense that a cıvıl court may or may not have upheld his claim. But where the court has already found, as in the present case, that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal, there can be no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of the Supreme Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly Violated. Article 21 will be denuded of its significant content if the power of the Supreme Court were limited to passing orders of release from illegal detention. The only effective method open to the judiciary to prevent violation of that right and secure due compliance with the mandate of Article 21, is to mulct its violators in the payment of 20 CRI.WP.454-2023.JUDGMENT.odt monetary compensation. The right to compensation is thus some palliative for the unlawful acts of instrumentalities of the State. Therefore, the State must repair the damage done by the officers to the petitioner's rights. It may have recourse against these officers."
22. Admittedly, Article 21 which guarantees the right to life and liberty and due compliance of the same is the mandate of Article 21. The violation of that right requires to be prevented.
23. In the decision of D.K. Basu (supra), wherein the Hon'ble Apex Court issued the guidelines as a preventive measure to the Police Officers regarding the arrest of the citizens.
24. The Hon'ble Apex Court has observed in para 44, which reads as under:
"44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of 21 CRI.WP.454-2023.JUDGMENT.odt compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen."
25. While summing up, the Hon'ble Apex Court further observes in para 55, which reads as under:
"55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duly bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the 22 CRI.WP.454-2023.JUDGMENT.odt wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
26. This aspect is also considered by the Division Bench of this Court in the case of Veena Sippy Major (supra), wherein in para 10 the Division Bench of this Court has referred the decision of the Hon'ble Apex Court in the case of D.K. Basu Vs. State of W.B., 1997 CRI.L.J. 743, wherein in para 35, the Apex Court observed as under:
"35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(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.
23 CRI.WP.454-2023.JUDGMENT.odt (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."
24 CRI.WP.454-2023.JUDGMENT.odt
27. As far as compliance to inform the relatives which is also not complied with by the Respondent No.3. The General Diary entry dated 12.01.2023 shows that, he was arrested and the grounds of arrest are informed to him but except the General Diary entry there is no material to show that the said grounds of arrest are given to him. On the contrary, the notice given under Section 41(1)(b)(ii) nowhere discloses that the grounds of arrest are given to him while arresting him.
28. The arrest panchnama which also not appears to have been drawn by the Respondent No.3. Thus, admittedly, there is no arrest memorandum or panchnama drawn in terms of the directions contained in clause 2 of para 36 of the decision of the Hon'ble Apex Court in the Case of D.K. Basu (supra). In terms of clause 4 of the said directions even an intimation of the arrest of the Petitioner was not given to the Petitioner's relatives and nothing was produced on record to show that there was any entry taken in the arrest register of the Police Station. The grounds of arrest are also not informed to him by way of a notice.
25 CRI.WP.454-2023.JUDGMENT.odt
29. Now, the second question before us is whether the Petitioner is entitled to the compensation or not and if it is held that the Petitioner is entitled what will be the amount of compensation.
30. In the decision of D.K. Basu (supra), the Hon'ble Apex Court has reiterated that in case a person illegally detained without complying the mandatory directions laid down then the aspect of compensation requires to be dealt with.
31. In Veena Sippy Major (supra), wherein in para 25 the Division Bench of this Court has referred the decision of the Hon'ble Apex Court in the case of Neelabati Behera (Smt) Vs. State of Orissa & Ors., [(1993) 2 SCC 746] , wherein in para 17 and 18 the Apex Court observed as under:
"17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for the enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which 26 CRI.WP.454-2023.JUDGMENT.odt justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G. P. Singh, at pages 44 to 48."
(emphasis added)
32. Similarly, this Court in Veena Sippy Major (supra) also considered the usual discussion on the topic on strict liability for violation of fundamental right enabling award of compensation refers the relevant portion of Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992 at pages 44 to 48.
33. It is observed by this Court in the light of the judgment of Neelabati Behera (Smt) (supra) that, if the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must 27 CRI.WP.454-2023.JUDGMENT.odt also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-notes, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. It was further observed that the power and jurisdiction of this Court and the High Courts to grant monetary compensation in exercise of its jurisdiction respectively under Articles 32 and 226 of the Constitution of India to a victim whose fundamental rights under Article 21 of the Constitution are violated are thus, well- established.
34. In view of the above observations, admittedly, the act of the Respondent No.3 is contrary to the same which is established during the departmental enquiry against him though punishment of Censure is imposed on him but it would not compensate the pain and agony which is undergone by the present Petitioner. Admittedly, the said pain and agony cannot be compensated in monetary terms. However, to give him some 28 CRI.WP.454-2023.JUDGMENT.odt solace his prayer for granting compensation requires to be considered.
35. The present Respondent No.3 is a Police Officer well versed with the legal provisions holding public office abused his position which is a matter of great public concern. When the police is violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. The Respondent No.3 who appears to be a violator of the law who had primary responsibility to protect and uphold the law, and thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society
36. It may not be out of context to remind that the motto of Maharashtra State Police is "Sadrakshnaya Khalanighrahanaya" (Sanskrit : "To protect good and to punish evil"), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, 29 CRI.WP.454-2023.JUDGMENT.odt but also to the State and to the community at large. Such incidents involving Police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally consider this aspect while considering the present Petition.
37. In the present case, the Respondent No.3 who is the Police Officer whose primary responsibility was to protect the and uphold the law but he has not only violated the law but violated the guidelines issued by the Hon'ble Apex Court as to the arrest.
38. Now, the only question remains whether he is to be held liable to pay compensation in personal capacity or State is responsible to pay the said compensation.
39. Learned Counsel for the Petitioner, has placed reliance on the decision of State of State of Maharashtra & Ors. Vs. Ravikant S. Patil, (1991) 2 SCC 373 , wherein the similar issue was involved and the High Court has granted compensation regarding the handcuffing. The Hon'ble Apex Court held that, the handcuffing is an act against all norms of 30 CRI.WP.454-2023.JUDGMENT.odt decency and amounts to violation of principles underlying Article 21. It is further observed by the Hon'ble Apex Court that, "we do not propose to interfere with the order directing the payment of compensation. But we think that Shri Prakash Chavan, Inspector of Police, appellant 2 herein, cannot be made personally liable. He has acted only as an official and even assuming that he has exceeded his limits and thus erred in taking the undertrial prisoners handcuffed, still we do not think that he can be made personally liable. In Rudul Sah (supra) this Court directed the State to pay compensation to the person illegally detained. The High Court also having noted this decision observed that the court can order payment of compensation either by the State or persons acting on behalf of the State. Having so observed, the High Court, however, held Shri Prakash Chavan, Inspector of Police personally liable and directed him to pay the compensation. We are of the view that in the instant case also a similar order as one passed in Rudul Sah (supra), will meet the ends of justice. Then the High Court has also directed that an entry should be made in his service record to the effect that he was guilty of violation of fundamental right of an undertrial prisoner. So far this direction 31 CRI.WP.454-2023.JUDGMENT.odt is concerned, it is submitted that such an adverse entry cannot straightway be made without giving the Inspector of Police, appellant 2 herein, an opportunity of being heard."
40. In the light of the above observations and here in the present case also the Respondent No. 3 acted as an official and he has exceeded his limits and thus committed an error in arresting the Petitioner without following due provisions of law. In the case of Rudul Sah (supra), wherein the compensation to the persons was granted as they were illegally detained. Thus, in view of the observations of the Hon'ble Apex Court in the case of State of Maharashtra & Ors. Vs. Ravikant S. Patil (supra), here in the present case also, the State can be directed to pay the compensation to the present Petitioner for the act of the Respondent No. 3 as he was held guilty of violation of the fundamental rights of the present Petitioner. In view of that, we proceed to pass the following order.
ORDER i. The Writ Petition is partly allowed.
ii. The compensation of Rs. 25,000/- (Rs. Twenty Five Thousand Only) shall be paid by the Respondent 32 CRI.WP.454-2023.JUDGMENT.odt No.1 to the present Petitioner within a period of eight weeks from today. The amount of compensation be deposited in this Court.
iii. As far as the other prayer of the Petitioner as to the directions to the enquiry, the departmental enquiry against the Respondent No.3 is already held and the punishment for his misconduct is already imposed, and therefore, the said prayer of the Petitioner in prayer clause (3), is hereby rejected.
41. Pending application/s, if any, shall stand disposed of accordingly.
(NIVEDITA P. MEHTA, J.) (URMILA JOSHI PHALKE, J.) S.D.Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 27/04/2026 17:59:29