Two people accused of criminal offenses are arrested and made to travel to another state in sordid conditions (which is very typical in 498a cases !!). Principles enunciated in 41 CrPC are NOT followed. The Hon Sc notices the misuse of power and grants them compensation of Rs. 500,000 each !!
Though this case is NOT for matrimonial offenses, we feel this is a good case to cite wherever arrests are made in contravention of Sec 41 a CrPC !!
“…………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, 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 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 India11. 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”.
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 Lal13, we quash the proceedings initiated at the instance of the 8th 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.
[DIPAK MISRA] ………………………………….J.
[SHIVA KIRTI SINGH] ………………………………….J.
June 03, 2016.
9 (2006) 3 SCC 178
10 (2012) 1 SCC 748
11 (2015) 5 SCC 1
12 (2009) 7 SCC 495
13 1992 Supp. (1) SCC 335