Chattisgarh High Court
Sanau Ram Potai vs State Of Chhattisgarh on 16 July, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 322 of 2023
1. Sanau Ram Potai S/o Pando Ram Potai, Aged About 45 Years R/o
Village Chindali, Bhasabod, Police Station Bade Dongar Tahsil
Pharasgaon, District Kondagaon (Chhattisgarh)
---- Petitioner
Versus
1. State of Chhattisgarh Through The Collector Kondagaon, District
Kondagaon (Chhattisgarh)
2. District Collector Kondagaon Collector Office Kondagaon, District
Kondagaon (Chhattisgarh)
3. Sub Divisional Magistrate, Farasgaon, Post Farasgaon District
Kondagaon (Chhattisgarh)
4. Superintendent of Police Kondagaon District Kondagaon
(Chhattisgarh)
5. Station House Officer, P.S. Bade Dongar, District Kondagaon
(Chhattisgarh)
---- Respondents
(Cause-title taken from Case Information System) For Petitioner : Mr. Pravin Kumar Tulsyan, Advocate For State/Respondents No.1 to 5 : Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 16.07.2024
1. Heard Mr. Pravin Kumar Tulsyan, learned counsel for the petitioner 2 as well as Mr. Shashank Thakur, leanred Dy. Advocate General appearing for the State/respondents No.1 to 5.
2. The present writ petition has been filed by the petitioner with the following prayers:
"10.1. Issue a writ, order or direction in the nature of MANDAMUS commanding/directing the Respondents to pay adequate compensation of Rs.50,000/- (Per Day) to the petitioner for his illegal detention.
10.2. Issue a writ, order or direction in the nature of MANDAMUS commanding the respondent No.1 to hold a high level enquiry in the entire matter of implication and detention of the petitioner and place its report before the Hon'ble Court.
10.3. Issue a writ, order or direction in the nature of MANDAMUS commanding/directing the Respondent No 1 & 2 to take disciplinary and departmental action against the 3 and 5 for the illegal detention of the petitioner. 10.4. Pass any other suitable order or direction which is deemed just and proper in the circumstances of the case.
10.5. To award cost of the Petition to the Petitioner."
3. The facts of the present case are that on 07.01.2023 at around 11:00 p.m. the petitioner was taken by the police of Police Station - Bade Dongar, District - Kondagaon (C.G.) in connection with Istgasha No. 02/2023 under Section 151, 107, 116(3) of the CrPC and he was produced before the learned Sub Divisional Magistrate 3 of Farasgaon, District - Kondagaon only to harass and dis-humiliate whereupon the petitioner was asked about the facts recorded in the Istgasha and the case was registered. The petitioner was directed to deposit Rs.5,000/- along with a security by writing a bond of Rs.5,000/- giving capable security to maintain the peace for a period of 6 months, but he has not complied the order, the learned Sub Divisional Magistrate without appreciating the scope of limit of Section 107/116(3) of Cr.P.C., directed to send the petitioner directly to Jail on 08.01.2023 and also directed the Jail Superintendent to keep him there for the period from 08.01.2023 to 16.01.2023, thereafter to produce him before the Court on 16.01.2023.
Further, the wife of the petitioner had also given written complaint to the Collector, District - Kondagaon regarding the non- compliance of the mandatory provisions by the police authority during the arrest and also for giving no correct information about his husband till 17.01.2023. She had also stated about the atrocities done by the local residents of the village Bhaisabodh upon them to adopt Hindu religion.
4. On 18.01.2023 the counsel for the petitioner has moved an application under Section 436 of CrPC before the learned Sub Divisional Magistrate, thereby learned Sub Divisional Magistrate directed the Jail Superintendent, Narayanpur to release the 4 petitioner on completion of period of jail custody.
5. As the arrest and detention in police lock-up of a person has caused incalculable harm to the reputation and self-esteem of petitioner, 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.
6. Learned counsel for the petitioner submits that the impugned order sending the petitioner behind the bar without being fully conversant with the facts and without appreciating the scope of limit of Section 107/116(3) of CrPC is not justified and in the present case, the petitioner has been arrested in connection with Istgasa No. 02/2023 under section 151, 107, 116(3) of the CrPC. He further submits that the petitioner has not been arrested in connection with any offence under IPC as there is no report either to any person or in any police station. Thus the police and learned Sub Divisional Magistrate erred in sending the petitioner in jail. He also contended that Section 151 of the CrPC only provides for arrest of a person to prevent the commission of a cognizable offence and the person so arrested can be detained in custody only upto 24 hours and in the absence of anything else, such person should be released by the arresting officer himself on the expiry of the said 24 hours. Thus, 5 the arrest and detention of the petitioner are 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.50,000/- (per day) as compensation to the petitioner for mental harassment and illegal detention.
7. On the other hand learned State counsel submits that the petitioner was arrested by the police personnel on suspicion, thereafter he was produced before the learned Sub Divisional Magistrate and the learned learned Sub Divisional Magistrate directed to deposit Rs.5,000/- along with a security by writing a bond of Rs.5,000/- giving capable security to maintain the peace for a period of 6 months, but he has not complied the said order, therefore the learned Sub Divisional Magistrate directed to send the petitioner directly to the Narayanpur Jail from 08.01.2023 to 16.01.2023 for maintaining spiritual harmony in the society. The petitioner was sent behind the bar under the order of learned Sub Divisional Magistrate. The custody of the petitioner cannot be named or termed as illegal detention. He further submits that the said order cannot violate the fundamental right of the petitioner and a writ petition under Article 226 of the Constitution of India is not maintainable and liable to be dismissed.
8. We have heard learned counsel for the parties and perused the 6 records of the case.
9. Section 151 of the CrPC reads as under :-
"1. A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
2. No person arrested under Sub-Section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.
10. From bare perusal of Section 151 of the CrPC, it is apparent that the Police can exercise power given in the above section as preventive measure and this Section does not include penal provision.
11. 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. Liberty must mean freedom from humiliation and unnecessary/false/mischievous arrest, indignities at the hand of the authority would include police excesses in a given case.
12. The petitioner has sought compensation for wrongful detention and the Hon'ble Supreme Court in violation of Article 21 of the 7 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. "
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13. 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 a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It has been said by Edward Biggon "the laws of a nation form the most instructive portion of its history." The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. 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."
14. The Hon'ble Supreme Court in the matters of Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa and others, 1993 (2) SCC 746, D.K. Basu V. State of West Bengal, 1997(1) SCC 416, Sube Singh Vs. State of Haryana and others, 2006(3) SCC 178, Hardeep Singh Vs. State of Madhya Pradesh, 2012(1) SCC 748 and Shreya Singhal Vs. Union of India, 2015(5) SCC 1, held 9 that the Investigating Officers in no circumstances can flout the law with brazen proclivity. It is also observed that the constitutional Courts taking note of suffering and humiliation are entitled to grant compensation.
15. From above discussion, in the light of the judgments passed by the Hon'ble Supreme Court in the matters of Nilabati Behera (Smt.) Alias Lalita Behera (supra), D.K. Basu (supra), Sube Singh (supra), Hardeep Singh (supra) and Shreya Singhal (supra), and the provision of law, it is quite vivid that on mere suspicion, a person cannot be arrested against whom the commission of cognizable or non-bailable ofence is not made out and he cannot be remanded to judicial custody and under Section 107 of the Cr.P.C. of sub-section (1) provides that whenever Executive Magistrate receives information under sub-section (1) such person has to be show-caused why he/she shall not be ordered to execute bond, but in the reply of the State in this regard it is submitted that the petitioner was directed to produce Jamanatnama, i.e. Bail Bond, however, he did not submit any Jamanatnama, for his release, consequently, the learned Sub Divisional Magistrate has left with no option to send the petitioner to Jail. 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 10 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/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi