Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 30 OF 2015

Dr. Rini Johar & Anr. ... Petitioners

Versus

State of M.P. & Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

The petitioner no.1 is a doctor and she is presently

pursuing higher studies in United States of America (USA).

She runs an NGO meant to provide services for South

Asian Abused Women in USA. Petitioner no.2, a

septuagenarian lady, is a practicing Advocate in the

District Court at Pune for last 36 years. Petitioner no.1 is

associated with M/s. Progen, a US company.

Page 2 2.As the facts would unveil, the informant, respondent

no.8 herein, had sent an email to the company for

purchase of machine Aura Cam, 6000, which is an Aura

Imaging Equipment, in India and the concerned company

sent an email to the respondent making a reference to the

petitioner no.1. Thereafter, the said respondent sent an

email asking her to send the address where he could meet

her and have details for making payment. He also

expressed his interest to become a distributor.

3.The informant visited the petitioner no.1 at Pune and

received a demo of Aura Cam 6000 and being satisfied

decided to purchase a lesser price machine i.e. “Twinaura

Pro” for a total sum of Rs.2,54,800/-. He paid a sum of

Rs.2,50,000/- for which a hand written receipt was given

as the proof of payment. During the course of the said

meeting, the 8

th

respondent expressed his desire to

purchase a laptop of M/s. Progen of which the petitioner

no. 1 was the representative. In pursuance of the

discussion, the laptop was given to him who acknowledged

it by stating that he owed a sum of Rs.4,800/- as balance

consideration towards the Aura Cam and an amount of

2

Page 3 USD 350 towards the laptop. An assurance was given for

remitting the money within a short time. As averred, the

respondent no.8 had never raised any grievance relating

either to the machine or the laptop. Certain transactions

between the informant and the US company have been

mentioned and the allegations have been made against the

8

th

respondent that he represented himself as the sole

distributor in India which was brought to the notice of the

concerned police in the State of M.P. by the competent

authority of the company. The said facts really do not have

much relevance to the lis which we are going to adjudicate

in the present writ petition.

4.When the matter stood thus, the respondent no.8 filed

a complaint before the Inspector General of Police, Cyber

Cell, Bhopal alleging that the petitioner no.1 and Mr. Guy

Coggin had committed fraud of US 10,500. On the basis of

the complaint made, FIR no. 24/2012 under Section 420

and 34 of the Indian Penal Code (IPC) and Section 66-D of

the Information Technology Act, 2000 (for brevity, ‘the Act’)

was registered against the petitioners by Cyber Police

Headquarters, Bhopal, M.P. The respondent no.2, I.G.

3

Page 4 Cyber Cell, issued an order on 20.11.2012 which is to the

following effect:-

“Cyber state police having registered FIR

24/2012 under S 420, 34 of Indian Penal Code

and 66 D of IT Act search and information the

undersigned persons are asked to go to Pune.

1. R.R. Devendra Sisodia

2. R.R. (Lady) Ishrat Praveen Khan

3. RR (Lady) Valari Upadhyay”

5.On 21.11.2012, Dy. S.P. State Cyber Police, Bhopal

proceeded to pass the following order:-

“Cyber state police having registered FIR

24/2012 under S 420, 34 Indian Penal Code and

S 66 D of IT Act accused Rini Johar and Gulshan

Johar should be arrested and for that lady

constable Ishrat Khan has been deputed with

case diary with address from where they are to be

found and arrested and it is ordered that they be

brought to Bhopal. In reference to which you

have been given possession of the said case

diary.”

6.We have reproduced the said orders in entirety as the

same has immense relevance to the relief sought for by the

petitioners.

7.As the narration would unfurl, on 27.11.2012, the

petitioners were arrested from their residence at Pune.

Various assertions have been made as regards the legality

of the arrest which cover the spectrum of non-presence of

4

Page 5 the witnesses at the time of arrest of the petitioners,

non-mentioning of date, and arrest by unauthorized

officers, etc. It is also asserted after they were arrested,

they were taken from Pune to Bhopal in an unreserved

railway compartment marked – ‘ viklang’ (handicapped).

Despite request, the petitioner no.2, an old lady, was not

taken to a doctor, and was compelled to lie on the cold floor

of the train compartment without any food and water.

Indignified treatment and the humiliation faced by the

petitioners have been mentioned in great detail. On

28.11.2012, they were produced before the learned

Magistrate at Bhopal and the petitioner no. 2 was enlarged

on bail after being in custody for about 17 days and the

petitioner no.1 was released after more than three weeks.

There is allegation that they were forced to pay Rs.5 lakhs

to respondent no.3, Deepak Thakur, Dy. S.P. Cyber Cell,

Bhopal. On 18.12.2012, chargesheet was filed and

thereafter a petition under Section 482 CrPC has been filed

before the High Court for quashment of the FIR.

8.At this stage, it is pertinent to state that on 19.2.2015

the petitioners filed an application for discharge and the

5

Page 6 learned Magistrate passed an order discharging the

petitioners in respect of the offence punishable under

Section 66-D of the Act. However, learned Magistrate has

opined that there is prima facie case for the offence

punishable under Section 66-A(b) of the Act read with

Section 420 and 34 of the IPC.

9.Ordinarily, we would have asked the petitioners to

pursue their remedy before the High Court. But, a

disturbing one, petitioners while appearing in person,

agonizingly submitted that this Court should look into the

manner in which they have been arrested, how the norms

fixed by this Court have been flagrantly violated and how

their dignity has been sullied permitting the atrocities to

reign. It was urged that if this Court is prima facie

satisfied that violations are absolutely impermissible in

law, they would be entitled to compensation. That apart,

it was contended that no case is made out against them

and the order of discharge is wholly unsustainable. Regard

being had to the said submission, we appointed Mr. Sunil

Fernandes as Amicus Curiae to assist the Court.

6

Page 7 10.In this writ petition, first we shall address to the

challenge relating to the validity and legality of arrest,

advert to the aspect whether the petitioners would be

entitled to any compensation on the bedrock of public law

remedy and thereafter finally to the justifiability of the

continuance of the criminal proceedings. Be it stated here

that this Court on 7.12.2015, taking note of the

submissions of the petitioners that they are not interested

to prosecute their petition under Section 482 CrPC directed

that the said petition is deemed to have been disposed of.

It is also requisite to note here that despite efforts being

made by the petitioners as well as the State of M.P,

respondent no.8, who belongs to Jabalpur, M.P. could not

be served. This Court is inclined to infer that the said

respondent is really not interested to appear and contest.

11.As stated earlier, first we shall advert to the legality of

arrest and detention. Mr. Saurabh Mishra, learned

counsel appearing for the State of M.P. has submitted that

as the State Government had already conducted an enquiry

in this regard and initiated proceedings against the 3

rd

respondent, the matter should not be adjudicated at this

7

Page 8 stage. We are not disposed to accept the said submission,

for initiation of a disciplinary proceeding or criminal

prosecution should not be an impediment for delineation

as regards the violation of procedure of arrest and

curtailment of liberty.

12.We consider it imperative to refer to the enquiry made

by the State and the findings arrived at by the enquiry

officer. It is asserted in the counter affidavit that the

petitioners had made a complaint to the Lokayukta Police

(M.P. Special Police Establishment) alleging that Deepak

Thakur, respondent no.3 herein, demanded a bribe of

Rs.10 lakhs for letting them go and pursuant to the said

demand, initially a sum of Rs.2,50,000/- was paid and

subsequently a sum of Rs.2,50,000/- was also given. The

Lokayukta Police had already registered a preliminary

enquiry no. 33/2015 and after enquiry submitted an

enquiry report dated 18.6.2015 stating that prima facie

case had been made out against Deepak Thakur, Dy. S.P.,

Cyber Cell, Bhopal, Ishrat Khan, Head Constable, Cyber

Cell, Bhopal, Inderpal, Writer, Cyber Cell Bhopal and

Saurabh Bhat, Clerk, Cyber Cell, Bhopal under Section

8

Page 9 13(1)(d) and Section 13(2) of the Prevention of Corruption

Act, 1988 and Section 120B IPC. Based on the said

preliminary enquiry report, FIR No. 273/2015 dated

27.3.2015 has been registered against the accused persons

in respect of the said offences and further steps under the

CrPC are being taken. Be it clarified, we are not at all

concerned with the launching of said prosecution and

accordingly we shall not advert to the same.

13. It is perceivable that the State in its initial affidavit

had stated that the Director General of Police by its order

dated 8.7.2015 had appointed Inspector General of Police,

CID to enquire into the allegations as regards the violation

of the provisions enshrined under Section 41-A to 41-C of

CrPC. It needs to be stated here that in pursuance of the

order passed by the Director General, an enquiry has been

conducted by Inspector General of Police Administration,

CID, Bhopal. It has been styled as “preliminary enquiry”.

The said report dated 19.08.2015 has been brought on

record. The Inquiring Authority has recorded the statement

of Ms. Ishrat Praveen Khan. The part of her statement

reads as follows:-

9

Page 10 “… When I received the order, I requested DSP

Shri Deepak Thakur that I was not in the District

Police Force. I do not have any knowledge about

IPC/Cr.P.C./Police Regulation/Police Act and

Evidence Act, IT Act as I have not obtained any

training in Police Training School, nor do I have

any knowledge in this regard, nor do I have any

knowledge to fill up the seizure memo and arrest

memo. Even after the request, DSP Shri Deepak

Thakur asked in strict word that I must follow

the order. The duty certificate was granted to me

on 26.11.2012, on which Report No.567 time

16.30 was registered, in which there are clear

directions. In compliance with this order, we

reached Kondwa Police Station in Pune

Maharashtra on 27.11.2012 with my team and 2

constables and 1 woman constable were sent to

assist us from there. The persons of the police

station Kondwa came to know reaching Lulla

Nagar that the said area does not fall under their

police station area so the police of Kondwa

phoning Banwari Police Station got to bring the

force for help Banwari Police Station. I had given

the written application in PS Banwari. The entire

team reached the house of Rini Johar and 01

laptop of Dell Company and 1 data card of

Reliance Company were seized. Rini Johar called

her mother Gulshan Johar from the Court

furnishing information to her about her custody.

Thereafter, Shri Rini Johar had called up the

Inspector General of Police, State Cyber Police

Shri Anil Kumar Gupta. I and my team had taken

Miss Rini Johar and Smt. Gulshan in our

custody. I and Constable Miss Hemlata Jharbare

conduced robe search of Miss Rini Johar and

Smt. Gulshan Johar. Nothing was found on their

body.”

14.He has also recorded the statement of Devender

Sisodia, Ms. Vallari Upadhyay, Ms. Hemlata Jharbare and

10

Page 11 thereafter recorded his findings. The findings arrived at in

the preliminary enquiry read thus:-

“24. Finding of the preliminary inquiry:- It was

found during the preliminary enquiry that Crime

No.24/12 had been registered after the inquiry of

one written complaint of the applicant Shri

Vikram Rajput, but this complaint inquiry report

during the investigation of the offence has been

kept as the relevant evidence. The crime was

registered on 27.11.2012 under Section 420, 34

IPC read with Section 66D IT Act, 2000 against

the named accused persons. The offence was to

the effect that though the alleged accused

persons obtained Rs.5.00 lakh, they did not

supply the camera etc and they supplied the

defective articles. This sale – purchase was

conducted through the online correspondence,

due to which the section of IT Act was imposed.

It was found on the preliminary inquiry that Shri

Vikram Rajput gave the payment of Rs.2.50 lakh

by the bank draft and the remaining payment by

cash. The facts of the payment and supply are

now disputed and the trial of Crime No.24/12 is

pending in the competent Court. Therefore, to

give any inquiry finding on it would not be

proper. It is clear from the documents attached

to the case diary and the statement of Shri

Deepak Thakur that Shri Deepak Thakur sent 2

notices respectively by the post and through the

Deputy Commissioner, Economic Crime and

Cyber Pune respectively to Miss Rini Johar on

01.06.2012 and 02.07.2012 in the investigation

of the offence, but they did not appear before the

Investigator. It has not been written above both

the notices if the notice has been issued under

Section 41A of Cr.P.C. It is also not clear whether

or not these both notices were severed to Miss

Rini Johar.

25. This case is related to the alleged cheating

between two persons in respect of sale and

11

Page 12 purchase of goods. The maximum sentence in

Section 420 is the period upto 7 years and

similarly when the reasons mentioned in Section

41 (1)(B) are not found, the suspects of the crime

should be made to appear for the interrogation in

the investigation issuing notice to them. Justice

Late Krishna Ayyer has held in Jolly George

Varghese v. Bank of Cochin

1

that “No one shall

be imprisoned merely on the ground of inability

to fulfill a contractual obligation”. Section 41(2)

of Cr.P.C. grants power to the Investigator that if

the suspect does not appear for the investigation

despite the notice, he can be arrested, though

this reason having been mentioned in the case

diary should have been produced before the

Magistrate, but no reason for the arrest has been

mentioned in the case diary. No notice has been

sent to the old woman Smt. Gulshan Johar (aged

about 70 years), nor has she played any role in

committing any offence. Only the draft of Rs.2.50

lakh had been deposited in her account. No

binding ground has been mentioned in respect of

her arrest in the case diary.”

And again:-

“28. It has not been mentioned anywhere in the

arrest memo and case diary that the information

of the arrest of both women was furnished to any

of their relatives and friends. It has become clear

from the statements that when both the women

were arrested physically they were brought to PS

Banwari Pune, where the arrest memo was

prepared. There is the signature of Shri Amol

Shetty as the witness of the seizure memo. Shri

Deepak Thakur has stated in his statement that

the handwriting of the seizure memo is of the

constable Shri Indrapal. Shri Indrapal did not go

as a member of the arresting persons to Pune.

The seizure memo does not have the signature of

1

AIR 1980 SC 470

12

Page 13 Amol Shetty as well, which proves prima facie

that the seizure memo was not prepared on

27.11.2012 in Pune. The report no.29/12 dated

27.11.2012 of seeking police help in PS Banwari

is recorded, but no information is recorded at the

police station that MP Police are taking by

arresting these citizens with them. As a result,

the information of the arrested persons was

neither furnished in the District Police Control

Room Pune, nor was it published there. It has

also been clarified in the preliminary inquiry that

the accused persons after they were arrested

were not produced before the Local Judge and

they were brought to Bhopal by rail. Miss Ishrat

Khan stated that she did not obtain the rail

warrant of neither the policepersons nor the

accused during return due to paucity of time.”

And finally:-

“As such, the facts of arresting both the

suspected women and making seizure memo

searching their houses not fully following the

procedure of arrest by the Investigator and police

team have come to the fore in the preliminary

enquiry prima facie.”

15.Keeping the aforesaid facts in view, we may refer to

the decisions in the field and the submissions canvassed

by Mr. Fernandes, learned Amicus Curiae.

16.In Joginder Kumar v. State of U.P.

2

while

considering the misuse of police power of arrest, it has

been opined:-

2

(1994) 4 SCC 260

13

Page 14 “No arrest can be made because it is lawful for

the police officer to do so. The existence of the

power to arrest is one thing. The justification

for the exercise of it is quite another. … No

arrest should be made without a reasonable

satisfaction reached after some investigation

as to the genuineness and bona fides of a

complaint and a reasonable belief both as to

the person’s complicity and even so as to the

need to effect arrest. Denying a person of his

liberty is a serious matter.”

17. In the said case, the Court also voiced its concern

regarding complaints of human rights pre and after arrests

and in that context observed:-

“The horizon of human rights is expanding. At

the same time, the crime rate is also

increasing. Of late, this Court has been

receiving complaints about violations of

human rights because of indiscriminate

arrests. How are we to strike a balance

between the two?

A realistic approach should be made in this

direction. The law of arrest is one of balancing

individual rights, liberties and privileges, on

the one hand, and individual duties,

obligations and responsibilities on the other; of

weighing and balancing the rights, liberties

and privileges of the single individual and

those of individuals collectively; of simply

deciding what is wanted and where to put the

weight and the emphasis; of deciding which

comes first — the criminal or society, the law

violator or the law abider ….”

14

Page 15 After so stating, certain procedural requirements were

set down.

18.In D.K. Basu v. State of W.B.

3

, after referring to the

authorities in Joginder Kumar (supra), Nilabati Behera

v. State of Orissa

4

and State of M.P. v. Shyamsunder

Trivedi

5

the Court laid down certain guidelines to be

followed in cases of arrest and detention till legal provisions

are made in that behalf as preventive measures. The said

guidelines read as follows:-

“(1) The police personnel carrying out the

arrest and handling the interrogation of the

arrestee should bear accurate, visible and

clear identification and name tags with their

designations. The particulars of all such police

personnel who handle interrogation of the

arrestee must be recorded in a register.

(2) That the police officer carrying out the

arrest of the arrestee shall prepare a memo of

arrest at the time of arrest and such memo

shall be attested by at least one witness, who

may either be a member of the family of the

arrestee or a respectable person of the locality

from where the arrest is made. It shall also be

countersigned by the arrestee and shall

contain the time and date of arrest.

(3) A person who has been arrested or detained

and is being held in custody in a police station

or interrogation centre or other lock-up, shall

be entitled to have one friend or relative or

other person known to him or having interest

3

(1997) 1 SCC 416

4

(1993) 2 SCC 746

5

(1995) 4 SCC 262

15

Page 16 in his welfare being informed, as soon as

practicable, that he has been arrested and is

being detained at the particular place, unless

the attesting witness of the memo of arrest is

himself such a friend or a relative of the

arrestee.

(4) The time, place of arrest and venue of

custody of an arrestee must be notified by the

police where the next friend or relative of the

arrestee lives outside the district or town

through the Legal Aid Organisation in the

District and the police station of the area

concerned telegraphically within a period of 8

to 12 hours after the arrest.

(5) The person arrested must be made aware of

this right to have someone informed of his

arrest or detention as soon as he is put under

arrest or is detained.

(6) An entry must be made in the diary at the

place of detention regarding the arrest of the

person which shall also disclose the name of

the next friend of the person who has been

informed of the arrest and the names and

particulars of the police officials in whose

custody the arrestee is.

(7) The arrestee should, where he so requests,

be also examined at the time of his arrest and

major and minor injuries, if any present on

his/her body, must be recorded at that time.

The “Inspection Memo” must be signed both by

the arrestee and the police officer effecting the

arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical

examination by a trained doctor every 48

hours during his detention in custody by a

doctor on the panel of approved doctors

appointed by Director, Health Services of the

State or Union Territory concerned. Director,

Health Services should prepare such a panel

for all tehsils and districts as well.

16

Page 17 (9) Copies of all the documents including the

memo of arrest, referred to above, should be

sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his

lawyer during interrogation, though not

throughout the interrogation.

(11) A police control room should be provided

at all district and State headquarters, where

information regarding the arrest and the place

of custody of the arrestee shall be

communicated by the officer causing the

arrest, within 12 hours of effecting the arrest

and at the police control room it should be

displayed on a conspicuous notice board.”

19. Mr. Fernandes, learned Amicus Curiae, in a tabular

chart has pointed that none of the requirements had been

complied with. Various reasons have been ascribed for the

same. On a scrutiny of enquiry report and the factual

assertions made, it is limpid that some of the guidelines

have been violated. It is strenuously urged by Mr.

Fernandes that Section 66-A(b) of the Information

Technology Act, 2000 provides maximum sentence of three

years and Section 420 CrPC stipulates sentence of seven

years and, therefore, it was absolutely imperative on the

part of the arresting authority to comply with the

procedure postulated in Section 41-A of the Code of

Criminal Procedure. The Court in Arnesh Kumar v. State

17

Page 18 of Bihar and another

6

, while dwelling upon the concept of

arrest, was compelled to observe thus:-

“Arrest brings humiliation, curtails freedom

and casts scars forever. Lawmakers know it so

also the police. There is a battle between the

lawmakers and the police and it seems that

the police has not learnt its lesson: the lesson

implicit and embodied in CrPC. It has not

come out of its colonial image despite six

decades of Independence, it is largely

considered as a tool of harassment, oppression

and surely not considered a friend of public.

The need for caution in exercising the drastic

power of arrest has been emphasised time and

again by the courts but has not yielded desired

result. Power to arrest greatly contributes to

its arrogance so also the failure of the

Magistracy to check it. Not only this, the power

of arrest is one of the lucrative sources of

police corruption. The attitude to arrest first

and then proceed with the rest is despicable. It

has become a handy tool to the police officers

who lack sensitivity or act with oblique

motive.”

20. Thereafter, the Court referred to Section 41 CrPC and

analyzing the said provision, opined that a person accused

of an offence punishable with imprisonment for a term

which may be less than seven years or which may extend

to seven years with or without fine, cannot be arrested by

the police officer only on his satisfaction that such person

had committed the offence. It has been further held that a

6

(2014) 8 SCC 273

18

Page 19 police officer before arrest, in such cases has to be further

satisfied that such arrest is necessary to prevent such

person from committing any further offence; or for proper

investigation of the case; or to prevent the accused from

causing the evidence of the offence to disappear; or

tampering with such evidence in any manner; or to prevent

such person from making any inducement, threat or

promise to a witness so as to dissuade him from disclosing

such facts to the court or the police officer; or unless such

accused person is arrested, his presence in the court

whenever required cannot be ensured. These are the

conclusions, which one may reach based on facts.

Eventually, the Court was compelled to state:-

“In pith and core, the police officer before

arrest must put a question to himself, why

arrest? Is it really required? What purpose it

will serve? What object it will achieve? It is

only after these questions are addressed and

one or the other conditions as enumerated

above is satisfied, the power of arrest needs to

be exercised. In fine, before arrest first the

police officers should have reason to believe on

the basis of information and material that the

accused has committed the offence. Apart from

this, the police officer has to be satisfied

further that the arrest is necessary for one or

the more purposes envisaged by sub-clauses

(a) to (e) of clause (1) of Section 41 CrPC.”

19

Page 20 21. In the said authority, Section 41-A CrPC, which has

been inserted by Section 6 of the Code of Criminal

Procedure (Amendment) Act, 2008 (5 of 2009) was

introduced and in that context, it has been held that

Section 41-A CrPC makes it clear that where the arrest of a

person is not required under Section 41(1) CrPC, the police

officer is required to issue notice directing the accused to

appear before him at a specified place and time. Law

obliges such an accused to appear before the police officer

and it further mandates that if such an accused complies

with the terms of notice he shall not be arrested, unless for

reasons to be recorded, the police officer is of the opinion

that the arrest is necessary. At this stage also, the

condition precedent for arrest as envisaged under Section

41 CrPC has to be complied and shall be subject to the

same scrutiny by the Magistrate as aforesaid.

22.We have referred to the enquiry report and the legal

position prevalent in the field. On a studied scrutiny of the

report, it is quite vivid that the arrest of the petitioners was

not made by following the procedure of arrest. Section

41-A CRPC as has been interpreted by this Court has not

20

Page 21 been followed. The report clearly shows there have been

number of violations in the arrest, and seizure.

Circumstances in no case justify the manner in which the

petitioners were treated.

23.In such a situation, we are inclined to think that the

dignity of the petitioners, a doctor and a practicing

Advocate has been seriously jeopardized. Dignity, as has

been held in Charu Khurana v. Union of India

7

, is the

quintessential quality of a personality, for it is a highly

cherished value. It is also clear that liberty of the

petitioner was curtailed in violation of law. The freedom of

an individual has its sanctity. When the individual liberty

is curtailed in an unlawful manner, the victim is likely to

feel more anguished, agonized, shaken, perturbed,

disillusioned and emotionally torn. It is an assault on

his/her identity. The said identity is sacrosanct under the

Constitution. Therefore, for curtailment of liberty, requisite

norms are to be followed. Fidelity to statutory safeguards

instil faith of the collective in the system. It does not

require wisdom of a seer to visualize that for some invisible

reason, an attempt has been made to corrode the

7

(2015) 1 SCC 192

21

Page 22 procedural safeguards which are meant to sustain the

sanguinity of liberty. The investigating agency, as it seems,

has put its sense of accountability to law on the ventilator.

The two ladies have been arrested without following the

procedure and put in the compartment of a train without

being produced before the local Magistrate from Pune to

Bhopal. One need not be Argus – eyed to perceive the

same. Its visibility is as clear as the cloudless noon day. It

would not be erroneous to say that the enthusiastic

investigating agency had totally forgotten the golden words

of Benjamin Disraeli:

“I repeat …. that all power is a trust – that we are

accountable for its exercise – that, from the

people and for the people, all springs and all

must exist.”

24.We are compelled to say so as liberty which is

basically the splendor of beauty of life and bliss of growth,

cannot be allowed to be frozen in such a contrived winter.

That would tantamount to comatosing of liberty which is

the strongest pillar of democracy.

25.Having held thus, we shall proceed to the facet of

grant of compensation. The officers of the State had played

with the liberty of the petitioners and, in a way,

22

Page 23 experimented with it. Law does not countenance such kind

of experiments as that causes trauma and pain. In

Mehmood Nayyar Azam v. State of Chhattisgarh

8

, while

dealing with the harassment in custody, deliberating on the

concept of harassment, the Court stated thus:-

“22. At this juncture, it becomes absolutely

necessary to appreciate what is meant by the

term “harassment”. In P. Ramanatha Aiyar’s Law

Lexicon, 2nd Edn., the term “harass” has been

defined thus:

“Harass.—‘Injure’ and ‘injury’ are words

having numerous and comprehensive

popular meanings, as well as having a legal

import. A line may be drawn between these

words and the word ‘harass’, excluding the

latter from being comprehended within the

word ‘injure’ or ‘injury’. The synonyms of

‘harass’ are: to weary, tire, perplex, distress

tease, vex, molest, trouble, disturb. They all

have relation to mental annoyance, and a

troubling of the spirit.”

The term “harassment” in its connotative expanse

includes torment and vexation. The term

“torture” also engulfs the concept of torment. The

word “torture” in its denotative concept includes

mental and psychological harassment. The

accused in custody can be put under tremendous

psychological pressure by cruel, inhuman and

degrading treatment.”

26.In the said case, emphasizing on dignity, it has been

observed:-

8

(2012) 8 SCC 1

23

Page 24 “…..The majesty of law protects the dignity of a

citizen in a society governed by law. It cannot be

forgotten that the welfare State is governed by the

rule of law which has paramountcy. It has been

said by Edward Biggon “the laws of a nation form

the most instructive portion of its history”. The

Constitution as the organic law of the land has

unfolded itself in a manifold manner like a living

organism in the various decisions of the court

about the rights of a person under Article 21 of

the Constitution of India. When citizenry rights

are sometimes dashed against and pushed back

by the members of City Halls, there has to be a

rebound and when the rebound takes place,

Article 21 of the Constitution springs up to action

as a protector….”

27.In the case at hand, there has been violation of Article

21 and the petitioners were compelled to face humiliation.

They have been treated with an attitude of insensibility.

Not only there are violation of guidelines issued in the case

of D.K. Basu (supra), there are also flagrant violation of

mandate of law enshrined under Section 41 and Section

41-A of CrPC. The investigating officers in no

circumstances can flout the law with brazen proclivity. In

such a situation, the public law remedy which has been

postulated in Nilawati Behra (supra), Sube Singh v.

State of Haryana

9

, Hardeep Singh v. State of M.P.

10

,

9

(2006) 3 SCC 178

10

(2012) 1 SCC 748

24

Page 25 comes into play. The constitutional courts taking note of

suffering and humiliation are entitled to grant

compensation. That has been regarded as a redeeming

feature. In the case at hand, taking into consideration the

totality of facts and circumstances, we think it appropriate

to grant a sum of Rs.5,00,000/- (rupees five lakhs only)

towards compensation to each of the petitioners to be paid

by the State of M.P. within three months hence. It will be

open to the State to proceed against the erring officials, if

so advised.

28.The controversy does not end here. Mr. Fernandes,

learned Amicus Curiae would urge that it was a case for

discharge but the trial court failed to appreciate the factual

matrix in proper perspective. As the matter remained

pending in this court for some time, and we had dealt with

other aspects, we thought it apt to hear the learned

counsel for the aspect of continuance of the criminal

prosecution. We have narrated the facts at the beginning.

The learned Magistrate by order dated 19.2.2015 has found

existence of prima facie case for the offences punishable

under Section 420 IPC and Section 66-A(b) of I.T. Act, 2000

25

Page 26 read with Section 34 IPC. It is submitted by Mr. Fernandes

that Section 66-A of the I.T. Act, 2000 is not applicable.

The submission need not detain us any further, for Section

66-A of the I.T. Act, 2000 has been struck down in its

entirety being violative of Article 19(1)(a) and not saved

under Article 19(2) in Shreya Singhal v. Union of India

11

.

The only offence, therefore, that remains is Section 420

IPC. The learned Magistrate has recorded a finding that

there has been no impersonation. However, he has opined

that there are some material to show that the petitioners

had intention to cheat. On a perusal of the FIR, it is clear

to us that the dispute is purely of a civil nature, but a

maladroit effort has been made to give it a criminal colour.

In Devendra v. State of U.P.

12

, it has been held thus:-

“.. it is now well settled that the High Court

ordinarily would exercise its jurisdiction under

Section 482 of the Code of Criminal Procedure if

the allegations made in the first information

report, even if given face value and taken to be

correct in their entirety, do not make out any

offence. When the allegations made in the first

information report or the evidences collected

during investigation do not satisfy the ingredients

of an offence, the superior courts would not

encourage harassment of a person in a criminal

court for nothing”.

11

(2015) 5 SCC 1

12

(2009) 7 SCC 495

26

Page 27 29.In the present case, it can be stated with certitude

that no ingredient of Section 420 IPC is remotely attracted.

Even if it is a wrong, the complainant has to take recourse

to civil action. The case in hand does not fall in the

categories where cognizance of the offence can be taken by

the court and the accused can be asked to face trial. In

our considered opinion, the entire case projects a civil

dispute and nothing else. Therefore, invoking the principle

laid down in State of Haryana v. Bhajan Lal

13

, we quash

the proceedings initiated at the instance of the 8

th

respondent and set aside the order negativing the prayer

for discharge of the accused persons. The prosecution

initiated against the petitioners stands quashed.

30.Consequently, the writ petition is allowed to the

extent indicated above. There shall be no order as to costs.

........................................J.

[DIPAK MISRA]

........................................J.

[SHIVA KIRTI SINGH]

NEW DELHI

June 03, 2016.

13

1992 Supp. (1) SCC 335

27