Raghuvansh Dewanchand Bhasin v. State of Maharashtra (SC) BS269965
SUPREME COURT OF INDIA

Before:- D.K. Jain and H.L. Dattu, JJ.

Criminal Appeal No. 1758 of 2011. (Arising out of S.L.P. (Crl.) No. 5412 of 2008). D/d. 9.9.2011.

Raghuvansh Dewanchand Bhasin - Appellant

Versus

State of Maharashtra and another - Respondents

For the Appearing Parties :- Shankar Chillarge, AAG, R.D. Bhasin (In Person), Jay Savla, Dharmendra, Ashok Shahani, Ms. Renuka Sahu, Ms. Shilpi Choudhary and Ms. Asha G. Nair, Advocates.

IMPORTANT

Non-bailable warrant of arrest of a Practising Advocate in a bailable offence - Police officer arresting the accused on independence day in Public view and fellow members - Action of Public Officer seemed motivated - A fine of Rs. 2000/- imposed on the Police officer.

A. Criminal Procedure Code, Sections 70, 71 and 476 - Failure of accused to appear on date fixed for hearing - Non-bailable warrants issued - Accused a man of status (Practising Advocate) - Police Officer arresting the accused in full public view and chose Independence Day for arrest - Accused suffered unwarranted humiliation and degradation in front of his fellow members - Action of Police Officer seemed motivated - Police fined Rs. 2000/-.

[Para 13]

B. Criminal Procedure Code, Sections 70, 71 and 476 - Failure of accused to appear on date fixed for hearing - Non-bailable warrant to arrest the accused set aside - Held, accused was man of stature and was regularly attending the Court - Attendance of accused could have been secured by issuing summons or at best by a bailable warrant.

[Para 12]

C. Criminal Procedure Code, Sections 70, 71 and 476 - Failure of accused to appear in a bailable offence - Non-bailable warrant issued by Magistrate - Merely because the warrant uses the expression like "non-bailable" and that such terminology is not to be found in either Section 70 or Section 71 of the Code that by itself cannot render the warrant bad in law.

[Para 21]

D. Criminal Procedure Code Sections 70, 71 and 476 - Failure of accused to appear on the date fixed for hearing - Magistrate issuing Non-bailable warrant - But warrant cancelled after two days - Accused arrested because Police had no intimation of cancellation of warrant - It caused humiliation to accused who was a man of status - In order to check possibility of misuse following guidelines, inter alia, be adopted :-

[Para 23]

E. Criminal Procedure Code, Sections 70, 71 and 476 - Non-bailable warrant - Non-appearance of a person on the date fixed - When should Court issue non-bailable warrant - Held :-

[Paras 9 and 11]

Cases Referred :-

1. Bhim Singh, MLA v. State of J&K, 1986(1) RCR (Criminal) 348 : (1985)4 SCC 677.

2. Inder Mohan Goswami v. State of Uttaranchal, 2007(4) RCR (Criminal) 548 : 2007(5) Recent Apex Judgments (R.A.J.) 451 : (2007)12 SCC 1.

3. Nilabati Behera (Smt) Alias Lalita Behera v. State of Orissa, 1994(1) RCR (Criminal) 18 : (1993)2 SCC 746.

4. Rudul Sah v. State of Bihar, (1983)4 SCC 141.

5. State of U.P. v. Poosu, (1976)3 SCC 1.

JUDGMENT

D.K. Jain, J. - Leave granted.

2. This appeal, by special leave, is directed against the judgment and order dated 26th November 2007, rendered by the High Court of Judicature at Bombay, in CRL. W.P. No. 1086/2002. By the impugned judgment, while allowing the writ petition filed by the appellant, alleging harassment on account of his arrest on the strength of a non-bailable warrant, which had been cancelled, the High Court has directed the delinquent police officer to pay by way of costs to the appellant an amount of Rs. 2,000/- from his own account.

3. Shorn of unnecessary details, the facts material for adjudication of the present case, may be stated thus :

4. On 15th August, 2002, the complainant approached the Colaba Police Station and insisted on the arrest of the appellant in pursuance of the said non-bailable warrant. Thereupon, respondent No. 2, who at that point of time was posted as an Inspector of Police at the Colaba Police Station, directed a constable to accompany the complainant, and execute the warrant. When the appellant was sought to be arrested, he informed the constable that the said warrant had already been cancelled. However, as he could not produce any documentary evidence relating to cancellation of warrant, the appellant was arrested before a public gathering which had assembled at the Radio Club, in connection with the Independence day celebrations. He was produced before the duty Magistrate at about 2 P.M., the same day. The Magistrate directed the release of the appellant. It appears that the appellant obtained the necessary confirmation about cancellation of the warrant on the next day i.e. 16th August 2002 and produced the same before respondent No. 2 on the same day. Alleging mala fides and humiliation at the hands of respondent No. 2, in collusion with the complainant, the appellant approached the High Court, inter-alia, praying for suitable disciplinary action against respondent No. 2; adequate compensation; damages and costs by the said respondent from his own pocket.

5. As aforesaid, the High Court, vide impugned judgment has allowed the writ petition, inter alia, observing thus :

6. Thus, having failed to get the desired relief from the High Court, the appellant is before us in this appeal.

7. Arguing the case in person, it was strenuously urged by the appellant that having regard to the nature of offence alleged against him, in the first place, the Additional Chief Metropolitan Magistrate erred in law in issuing non-bailable warrant in a routine manner, without application of mind, merely because the appellant had failed to appear in court on 7th August 2002. It was asserted that since neither Section 70 nor Section 71 of the Code of Criminal Procedure, 1973 (for short "the Code") uses the expression "non-bailable" a Magistrate is not authorised to issue non-bailable warrant of arrest even when an accused fails to appear in the court. It was submitted that having held that the respondent No. 2 was guilty of misconduct, the High Court failed to punish the said respondent under Sections 342 and 345 of the Indian Penal Code. It was argued that the misconduct of respondent No. 2 was so high that he should have been forthwith suspended from his job and ordered to be tried in a competent criminal court. According to the appellant, the direction of the High Court asking respondent No. 2 to pay an amount of Rs. 2,000/- by way of cost to the appellant was no justice at all and if a strict action is not taken against such delinquent officers, they will continue to disregard the orders of the courts with impunity.

8. Per contra, Mr. Jay Savla, learned counsel appearing for respondent No. 2 submitted that since the appellant was unable to furnish any document or order to establish that non-bailable warrant issued against him by the court had been cancelled, the police authorities were left with no option and in fact were duty bound to execute the same. It was also urged that, as per the prevalent practice, whenever any non-bailable warrant is cancelled by the court, either memo or order addressed to the Senior Inspector of Police of the concerned police station is issued and forwarded directly to the concerned police station with a direction to return the said warrant to the court. But in the present case no such memo or order in writing had been received at the police station on or before 15th August 2002, when it was executed. Learned counsel submitted that the said respondent having performed his duty bonafide and in good faith, in pursuance of order issued by the court having jurisdiction, the said respondent had not committed any illegal act warranting any action against him.

9. 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. v. Poosu & Anr., (1976)3 SCC 1).

10. In Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., 2007(4) RCR (Criminal) 548 : 2007(5) Recent Apex Judgments (R.A.J.) 451 : (2007)12 SCC 1, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the Courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the Court should bear in mind while issuing non-bailable warrant, it was observed :

11. We deferentially concur with these directions, and emphasise that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22(1) of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice.

12. Viewed in this perspective, we regret to note that in the present case, having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings, it was not a fit case where non-bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion, the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are, therefore, in complete agreement with the High Court that in the facts and circumstances of the case, issuance of non-bailable warrant was manifestly unjustified.

13. We shall now advert to a more anxious point, viz. the conduct of respondent No. 2, at whose direction the warrant was executed. It needs no emphasis that any form of degrading treatment would fall within the inhibition of Article 21 of the Constitution. In the present case, respondent No. 2 was aware that the non-bailable warrant issued on account of failure on the part of the appellant to attend the court proceedings on 7th August 2002, was returnable only on 31st October 2002. Undoubtedly, respondent No. 2 was duty bound to execute the warrant as expeditiously as possible but we are unable to fathom any justifiable reason for the urgency in executing the warrant on a National holiday, more so when it had been issued more than a week ago and even the complaint against the appellant was in relation to the offence punishable under Section 324 of the Indian Penal Code. The complaint related to the year 2000. At the relevant time, the offence punishable under Section 324 of the Indian Penal Code was a bailable offence. It is apparent from the record that the warrant was executed at the behest of the complainant in order to denigrate and humiliate the appellant at a public place, in public view, during the course of Independence day celebrations at Radio Club. We are convinced that respondent No. 2, in collusion with the complainant, played with the personal liberty of the appellant in a high handed manner. The unfortunate sequel of an unmindful action on the part of respondent No. 2 was that the appellant, a practicing Advocate, with no criminal history, remained in police custody for quite some time without any justification whatsoever and suffered unwarranted humiliation and degradation in front of his fellow members of the Club. Regrettably, he lost his freedom though for a short while, on the Independence day. Here also, we agree with the High Court that respondent No. 2 did not perform his duty in the manner expected of a responsible police officer. As a matter of fact, being the guardian of the liberty of a person, a heavy responsibility devolved on him to ensure that his office was not misused by the complainant to settle personal scores. The so-called urgency or promptness in execution led to undesirable interference with the liberty of the appellant. Such a conduct cannot receive a judicial imprimatur.

14. That takes us to the core issue, namely, whether the appellant is entitled to any compensation for the humiliation and harassment suffered by him on account of the wrong perpetrated by respondent No. 2, in addition to what has been awarded by the High Court. As aforesaid, the grievance of the appellant is that imposition of a fine of Rs. 2,000/- on respondent No. 2 is grossly inadequate. His prayer is that in addition to an adequate amount of compensation, respondent No. 2 should also be prosecuted and proceeded against departmentally for his wrongful confinement.

15. It is trite principle of law that in matters involving infringement or deprivation of a fundamental right; abuse of process of law, harassment etc., the courts have ample power to award adequate compensation to an aggrieved person not only to remedy the wrong done to him but also to serve as a deterrent for the wrong doer.

16. In Rudul Sah v. State of Bihar & Anr., (1983)4 SCC 141, Y.V. Chandrachud, C.J., speaking for a Bench of three learned Judges of this Court had observed thus :

17. In Bhim Singh, MLA v. State of J&K & Ors., 1986(1) RCR (Criminal) 348 : (1985)4 SCC 677, holding illegal detention in police custody of the petitioner Bhim Singh to be violative of his rights under Articles 21 and 22(2) of the Constitution, this Court, in exercise of its power to award compensation under Article 32, directed the State to pay monetary compensation to the petitioner. Relying on Rudal Sah (supra), O. Chinnappa Reddy, J. echoed the following views :

18. In Nilabati Behera (Smt) Alias Lalita Behera v. State of Orissa & Ors., 1994(1) RCR (Criminal) 18 : (1993)2 SCC 746, clearing the doubt and indicating the precise nature of the constitutional remedy under Articles 32 and 226 of the Constitution to award compensation for contravention of fundamental rights, which had arisen because of the observation that "the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial" in Rudul Sah (supra), J.S. Verma, J. (as His Lordship then was) stated as under :

In the same decision, in his concurring judgment, Dr. A.S. Anand, J. (as His Lordship then was), explaining the scope and purpose of public law proceedings and private law proceedings stated as under :

19. 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. However, the question now is whether on facts in hand, the appellant is entitled to monetary compensation in addition to what has already been awarded to him by the High Court. Having considered the case in the light of the fact situation stated above, we are of the opinion that the appellant does not deserve further monetary compensation.

20. It is true that the appellant not only suffered humiliation in the public gathering, and remained in judicial custody for some time but we feel that for what he had undergone on 15th August 2002, some blame lies at his door as well. Being a practicing Advocate himself, the appellant was fully conversant with the court procedure and, therefore, should have procured a copy of memo/order dated 12th August 2002, whereby the non-bailable warrant was cancelled by the court. As noticed above, admittedly, the appellant applied and obtained a copy of such order only on 16th August 2002. Though the conduct of respondent No. 2 in arresting the appellant, ignoring his plea that the non-bailable warrant issued by the court in a bailable offence had been cancelled, deserves to be deplored, yet, strictly speaking the action of respondent No. 2 in detaining the appellant on the strength of the warrant in his possession, perhaps motivated, cannot be said to be per se without the authority of law. In that view of the matter, in our opinion, no other action against respondent No. 2 is warranted. He has been sufficiently reprimanded.

21. The last issue raised that remains to be considered is whether the Courts can at all issue a warrant, called a "non-bailable" warrant because no such terminology is found in the Code as well as in Form 2 of the Second Schedule to the Code. It is true that neither Section 70 nor Section 71, appearing in Chapter VI of the Code, enumerating the processes to compel appearance, as also Form 2 uses the expression like "non-bailable". Section 70 merely speaks of form of warrant of arrest, and ordains that it will remain in force until it is cancelled. Similarly Section 71 talks of discretionary power of Court to specify about the security to be taken in case the person is to be released on his arrest pursuant to the execution of the warrant issued under Section 70 of the Code. Sub-section (2) of Section 71 of the Code specifies the endorsements which can be made on a warrant. Nevertheless, we feel that the endorsement of the expression "non-bailable" on a warrant is to facilitate the executing authority as well as the person against whom the warrant is sought to be executed to make them aware as to the nature of the warrant that has been issued. In our view, merely because Form No. 2, issued under Section 476 of the Code, and set forth in the Second schedule, nowhere uses the expression bailable or non-bailable warrant, that does not prohibit the Courts from using the said word or expression while issuing the warrant or even to make endorsement to that effect on the warrant so issued. Any endorsement/variation, which is made on such warrant for the benefit of the person against whom the warrant is issued or the persons who are required to execute the warrant, would not render the warrant to be bad in law. What is material is that there is a power vested in the Court to issue a warrant and that power is to be exercised judiciously depending upon the facts and circumstances of each case. Being so, merely because the warrant uses the expression like "non-bailable" and that such terminology is not to be found in either Section 70 or Section 71 of the Code that by itself cannot render the warrant bad in law. The argument is devoid of substance and is rejected accordingly.

22. In view of the aforegoing discussion, no ground is made out warranting our interference with the impugned judgment of the High Court. We confirm the judgment and dismiss the appeal accordingly, but with no order as to costs.

23. However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be appropriate to issue the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts :-

Format of the Register

S.No. The number printed on the form used Case title and particulars Name & particulars of the person against whom warrant of arrest is issued (accused/witness) The officer/person to whom directed Date of judicial order directing Arrest Warrant to be issued Date of issue Date of cancellation, if any Due date of return Report returned on The action taken as reported Remarks

24. We expect and hope that all the High Courts will issue appropriate directions in this behalf to the Subordinate Courts, which shall endeavour to put into practice the aforesaid directions at the earliest, preferably within six months from today.

.