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TMI Blog2016 (6) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... h brazen proclivity. In such a situation, the public law remedy which has been postulated in NILABATI BEHERA @ LALITA BEHERA VERSUS STATE OF ORISSA [ 1993 (3) TMI 355 - SUPREME COURT] , SUBE SINGH VERSUS STATE OF HARYANA AND ORS. [ 2006 (2) TMI 699 - SUPREME COURT] , 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 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. In the present case, it can be stated with certitude that no ingredient of Section 420 Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machine or the laptop. Certain transactions between the informant and the US company have been mentioned and the allegations have been made against the 8th 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 (Indian Penal Code) and Section 66D 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. Cyber Cell, issued an order on 20.11.2012 which is to the following effect: Cyber state police having registered FIR 24/2012 Under Section 420, 34 of Indian Penal Code and 66D of IT Act sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Magistrate has opined that there is prima facie case for the offence punishable Under Section 66A(b) of the Act read with Section 420 and 34 of the Indian Penal Code. 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. 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 thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther steps under the Code of Criminal Procedure 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 41A to 41C of Code of Criminal Procedure. 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: ...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 Indian Penal Code/Code of Criminal Procedure/Police Regulation/Police Act and Evidence Act, IT Act as I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act was imposed. It was found on the preliminary inquiry that Shri Vikram Rajput gave the payment of ₹ 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 Code of Criminal Procedure. 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. (1994) 4 SCC 260 while considering the misuse of police power of arrest, it has been opined: 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 arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly 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 (2015) 1 SCC 192, 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 procedural safeguards which are meant to sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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: ...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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of U.P. (2009) 7 SCC 495, 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. 29. In the present case, it can be stated with certitude that no ingredient of Section 420 Indian Penal Code 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 1992 Supp. (1) SCC 335, we quash the proceedings initiated at the instance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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