Chattisgarh High Court
Smt. Meghibai vs State Of Chhattisgarh on 8 February, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2024:CGHC:4311-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 40 of 2024
• Smt. Meghibai W/o Shri Panchram Aged About 73 Years R/o
Village Khairtal Thana Nawagarh, District- Janjgir-Champa,
Chhattisgarh.
---- Petitioner
Versus
• State Of Chhattisgarh Through The District Magistrate, District-
Janjgir-Champa, Chhattisgarh.
---- Respondent
For Petitioner : Mr. Guarav Singhal, Advocate
For Respondent/State : Mr. Sangharsh Pandey, Govt. Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
Per Arvind Kumar Verma, J.
08/02/2024 The present writ petition has been filed by the petitioner with the following prayers:
"10.1 It is prayed that this Hon'ble Court may kindly be pleased to call the entire records pertaining to the case of the petitioner.
10.2. It is prayed that this Hon'ble Court may kindly be pleased to pass an order whereby the responsible authorities/State may kindly be directed to pay sum of Rs. 5,00,000/- to the petitioner as compensation for mental harassment and illegal detention.
Neutral Citation 2024:CGHC:4311-DB 2 10.3 Any other relief/order/direction which may deem fit and just in the facts and circumstances of the case, including award of the costs of the petition may be given.
10.4. It is prayed that the cost of the petition may kindly be awarded in favour of the petitioner"
2. Mr. Singhal learned counsel for the petitioner submits that the petitioner is challenging the order dated 22.06.2022 passed by the Judicial Magistrate First Class, Janjgir, District Janjgir-Champa authorizing detention to the petitioner without having any authority under the law and against the order dated 7.12.2023 passed by the Judicial Magistrate First Class rejecting the application under Section 436 of the Code of Criminal Procedure 1976.
3. He submits that the petitioner is old lady aged about 73 years and was arrested by the Excise Sub Inspector, Circle Shivrinarayan on 16.09.2021 for the offence under Section 34 (1)(a) of the Chhattisgarh Excise Act,1915 as she was found in possession of 3 liters of illicit Mahua liquor and was released on the same day after furnishing bail bonds for her appearance before the Judicial Magistrate First Class, Janjgir on the next date ie. on 3.10.2021. But the Excise Department did not file charge sheet on that day. The Excise Department did not issue notice to the petitioner about filing of charge-sheet against her on 14.03.2022. In the absence of petitioner, Excise Sub Inspector, Shivrinarayan filed the charge sheet before the Chief Judicial Magistrate, Janjgir, District Janjgir-Champa and wrongly stated before the Magistrate that the petitioner/accused that " vkjksfi;k dks U;k;ky; ds Neutral Citation 2024:CGHC:4311-DB 3 le{k mifLFkr jgus ckcr~ uksfVl tkjh fd;k x;k gS fdarq og U;k;ky; ds le{k mifLFkr ughs gks jgh gS vr% vuqifLFkfr esa vfHk;ksx i= Lohdkj djus dk fuosnu fd;k x;kA fopkj ckn fuosnu Lohdkj dj vfHk;ksx i+= Lohsdkj fd;k x;kA"
4. On 22.04.2022, learned Magistrate ordered to issue notice to the petitioner for her appearance. From the records, it transpires that the notice has not been issued and non bailable arrest warrant against the petitioner was issued for her appearance before the Court on 25.08.2022 however, due to strike of employees, the court proceedings have been postponed to 08.09.2022. Thereafter on 08.09.2022, service report of the warrant was not received, again arrest warrant was issued against the petitioner for her appearance on 25.11.2022. However, the warrant was not served and on 10.05.2023, the case was transferred from the Court of Chief Judicial Magistrate to the Court of Judicial Magistrate First Class, Janjgir to issue warrant against the petitioner for her appearance on the next date i.e. 02.06.2023 and the warrant was issued several times but for one or the other reason as mentioned in the order sheet, the arrest warrant could not be served upon the petitioner.
5. Thereafter, on 7.12.2023, the petitioner herself surrendered before the Court along with her counsel and filed application for cancellation of the warrant issued against her and to be released on bail. The learned Judicial Magistrate First Class, Janjgir after hearing, rejected the application and sent her in judicial custody. Thereafter, application under Section 439 of the Code of Criminal Procedure was filed before the learned Sessions Judge, Janjgir which was heard and Neutral Citation 2024:CGHC:4311-DB 4 case diary was called for and the matter was adjourned. Ultimately on 14.12.2023, bail application under Section 439 Cr.P.C. was heard by the learned Sessions Judge and the petitioner was released on her furnishing bail bond before the Judicial Magistrate First Class, Janjgir on 15.12.2023.
6. Contention of the learned counsel for the petitioner is that the petitioner was arrested even after she surrendered before the Judicial Magistrate First Class and that the Magistrate has no power to reject the bail application therefore the order dated 7.12.2023 is arbitrary and against the provisions of the Code of Criminal Procedure and the detention of the petitioner is in violation of Article 21 of the Constitution of India. He placed his reliance in the matter of Inder Mohan Goswami @ Another Vs. State of Uttaranchal and Others 2007 (12) SCC 1, wherein the Supreme Court has held as under:
" The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued to bring a person to court when summons of bailable warrants Neutral Citation 2024:CGHC:4311-DB 5 would be unlikely to have the desired result. This could be when:
it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon;
or * it is considered that the person could harm someone if not placed into custody immediately.
As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.
In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged Neutral Citation 2024:CGHC:4311-DB 6 with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.
The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. "
7. He has further placed his reliance in the case of Raghuvansh Dewanchand Bhasin Vs. State of Maharastra & Another (2012) 9 SCC 791 whrerein the Supreme Court has observed thus:
It needs little emphasis that since the execution of a non- bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non- bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice." Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.
Neutral Citation 2024:CGHC:4311-DB 7
8. It is further submitted by the petitioner that he is entitled to get compensation for his wrongful detention as the Hon'ble Supreme Court has awarded appropriate compensation to the persons compelled to face humiliation for wrongful detention in violation of Article 21 of The Constitution of India. Hence, this petition.
9. Learned counsel for the petitioner next submits that the petitioner has preferred an application under Section 436 of the Cr.P.C before the learned Judicial Magistrate First Class, Janjgir even after surrender by the petitioner on 07.12.2023 and has been sent in judicial custody, therefore, the detention of the petitioner in bailable offence is not only bad and illegal but it is against the law and in violation of Section 21 of the Constitution of India. As such, the writ petition deserves to be allowed and the respondents authorities may be directed to pay a sum of Rs.5,00,000/- as compensation to the petitioner for mental harassment and illegal detention for a period of 7 days.
10. On the other hand, Mr.Sangrash Pandey, learned Government Advocate appearing for respondent/State submits that the petitioner was arrested by the police for the offence under Section 34(1)(a) of the CG Excise Act and enlarged on bail. The petitioner did not appear before the trial court on the date of filing of the charge sheet and the learned Magistrate passed a judicial order for sending her to jail. The petitioner was sent behind the bar under the judicial order passed by the learned Magistrate. The custody of the petitioner was judicial custody and cannot be named or termed as illegal detention. He further submits that the judicial order cannot violate the fundamental Neutral Citation 2024:CGHC:4311-DB 8 right of the petitioner and against the judicial order, a writ petition in nature of criminal under Article 226 of the Constitution of India is not maintainable and liable to be dismissed.
11. We have heard learned counsel for the parties and perused the records of the case.
12. It is well settled principle of law that life and liberty of a citizen guaranteed under Article 21 of the Constitution of India includes life with dignity and liberty with dignity. The petitioner moved an application under Section 436 of the Cr.P.C and same was rejected by learned Judicial Magistrate First Class,Janjgir-Champa (CG). Section 436 of Cr.P.C. reads as under :
"436. In what cases bail to be taken. (1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person,discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446 .
(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any Neutral Citation 2024:CGHC:4311-DB 9 person bound by such bond to pay the penalty thereof under section 446. "
13. The petitioner has sought compensation for wrongful detention and the Hon'ble Supreme Court in violation of Article 21 of the Constitution of India has awarded appropriate compensation to the persons compelled to face humiliation for wrongful detention. The word 'harassment' has been dealt by the Hon'ble Supreme Court in the matter of Mehmood Nayyar Azam V. State of Chhattisgarh, reported in 2012(8) SCC 1 in para 22 as under :
"22. At this juncture, it becomes absolutely necessary to appreciate what is meant by the term "harassment". In P. Ramanatha Aiyar's Law Lexicon, Second Edition, the term "harass" has been defined, thus: -
"Harass. "injure" and "injury" are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word "harass"excluding the latter from being comprehended within the word "injure" or "injury". The synonyms of "harass" are: to weary, tire, perplex, distress tease, vex,molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit."
The term "harassment" in its connotative expanse includes torment and vexation. The term "torture" also engulfs the concept of torment. The word "torture" in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment. "
14. The Hon'ble Supreme Court while emphasizing on dignity in the same judgment held in para 36 as under :
"36. From the aforesaid discussion, there is no shadow of doubt that any treatment meted out to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity.
The majesty of law protects the dignity of a citizen in asociety governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has Neutral Citation 2024:CGHC:4311-DB 10 paramountcy. It has been said by Edward Biggon "the laws of a nation form the most instructive portion of its history." The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about therights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. That is why, an investigator to a crime is required to possess the qualities of patience and perseverance as has been stated in Nandini Sathpathy v. P.L. Dani, 1978(2) SCC
424."
15. In bailable offences, such person should be released on bail by invoking power under Section 436 of the Cr.P.C. treating the case as bailable one. In the instant case, the petitioner was arrested by the Investigating Agency and enlarged on bail thereafter she surrendered before the trial Court from where she was sent to judicial custody for a period of seven days. The above facts clearly reveal that the right of life and liberty of the petitioner enshrined under Article 21 of the Constitution of India has been violated, therefore, the petitioner is entitled to get appropriate compensation. We deem it fit to award compensation of Rs.25,000/- to the petitioner, and same shall be payable by the State Government to the petitioner within a period of 30 days from today.
16. With the aforesaid observations, this writ petition is disposed of.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
suguna