Rajender Singh Pathania & Ors vs State Of Nct Of Delhi & Ors

Rajender Singh Pathania & Ors. ...

Appellants

Vs.

State of N.C.T. of Delhi & Ors. ... Respondents

With

CRIMINAL APPEAL NO. 1583 OF 2011

(Arising out of SLP(Crl.) No.5702 of 2008)

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted in both the matters.

2. These appeals have been preferred against the same judgment

and order dated 25.2.2008 passed by the High Court of Delhi in Writ

Petition (Crl.) No.264 of 2007 by which the High Court has quashed

the criminal case registered against respondent nos. 3 and 4; directed

Central Bureau of Investigation (hereinafter called `CBI') to investigate

the case in respect of the allegations made by the said respondents

against the appellant nos. 2 to 4; and awarded a compensation of

Rs.25,000/- each to the said respondents for wrongful confinement.

3. FACTS:

A. On 3.2.2007, Constable Virender Kumar, Head Constable

Krishan Singh and Constable Jai Kumar, appellant nos. 2 to 4

respectively while patrolling in the area found that Sanjeev Kumar

Singh and Dalip Gupta, respondent nos.3 and 4 respectively were

fighting with each other in an intoxicated condition. The said

appellants tried to pacify them but in vein. After realising that they

were in drunken condition the aforesaid appellants took both the said

respondents to the hospital for medical examination wherein they

misbehaved with the Doctor and other staff of the hospital. After

medical examination, it was opined that both the said respondents had

taken alcohol.

B. The said respondents were booked under Sections 107/151 of the

Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.') and

were produced before the Special Executive Magistrate (hereinafter

called `the Magistrate') on 4.2.2007. The Magistrate issued show

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cause notice as to why they should not be ordered to execute personal

bond of Rs.5,000/- each with a surety in the like amount for

maintaining peace for a period of one year. The said respondents could

not furnish the bonds and thus, the Magistrate sent both of them to

judicial custody. The said respondents furnished the bond of

Rs.15,000/- each on the next day, i.e., 5.2.2007 and were released.

C. The said respondents filed Criminal Writ Petition No.264 of

2007 on 19.2.2007 before the High Court of Delhi praying mainly for

quashing of the proceedings under Sections 107/151 Cr.P.C. and

further asked to initiate criminal proceedings against the appellant

nos.2 to 4 and award them compensation for illegal detention. The writ

petition came for hearing on 26.2.2007. The standing counsel

appearing for the State took notice on behalf of all the respondents in

the writ petition. The High Court directed the police authorities to

submit the status report. The appellant no.1 after making an inquiry in

the case submitted the status report on 10.7.2007. The petition was

heard on 31.10.2007 and has been allowed vide judgment and order

dated 25.2.2008. Hence, these appeals.

4. Shri P.P. Malhotra, learned Additional Solicitor General

appearing for the State of NCT Delhi and Shri Pradeep Gupta, learned

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counsel appearing for the appellants, have submitted that both the said

respondents had been under the influence of liquor and were fighting

with each other at a public place, thus, there was danger of breach of

peace and tranquillity. Appellant nos.2 to 4 tried to pacify them but the

said respondents did not pay any heed. They had been booked under

Sections 107/151 Cr.P.C. and produced before the Magistrate on the

next day. The Magistrate after completing legal formalities directed

that they may be released on furnishing the bonds to the tune of

Rs.5,000/- each with a surety in the like amount. The said respondents

were not in a position to submit the bail bonds on the said date and

thus, could not be released on 4.2.2007. However, on the next day,

they submitted the bail bonds voluntarily for a sum of Rs.15,000/-

each, and thus, they were released. Factual averments made in the writ

petition were totally false.

Appellants had not been served personal notices and had no

opportunity to defend themselves. The order impugned has been passed

in flagrant violation of the principle of natural justice. Such a petty

matter does not require to be investigated by the CBI. Token

compensation to the tune of Rs.25,000/- has been awarded to each of

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the said respondents without determining the factual controversy.

Hence, the appeals deserve to be allowed.

5. On the contrary, the learned counsel appearing for the

respondent nos. 3 and 4 has opposed the appeals contending that the

appellants had violated fundamental rights of the contesting

respondents and detained them in jail without any justification,

therefore, the matter is required to be investigated by the CBI or some

other independent investigating agency. Token compensation has

rightly been awarded by the High Court. The appeals lack merit and are

liable to be dismissed.

6. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

7. In the writ petition, admittedly, altogether there were seven

respondents, including the present appellants and the Magistrate who

had passed the order under Sections 107/151 Cr.P.C. Record of the

case reveals that the matter was listed for the first time on 26.2.2007

and the learned standing counsel for the State accepted notice on

behalf of all the seven respondents therein. Most of the respondents

before the writ court had been impleaded by name in personal capacity

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making allegations of exceeding their powers and abusing their

positions. There is nothing on record to show that the standing counsel

had any communication with persons against whom allegations of mala

fide had been alleged, particularly, appellant nos. 2 to 4 and the learned

Magistrate, respondent no.5 herein. Thus, none of them had an

opportunity of appearing before the High Court. We do not find any

force in the submission made by learned counsel appearing for the

original writ petitioners that as the State had been representing all of

them, there was no need to hear each and every individual.

Undoubtedly, the judgment and order impugned in these appeals has

been passed in flagrant violation of the principles of natural justice and,

thus, liable to be set aside solely on this ground.

8. The status report had been submitted before the High Court after

having proper investigation, stating that the writ petitioners had been

under the influence of alcohol and been abusing, threatening and

quarrelling each other at the public place. The police personnel could

not control them. When they were taken to the hospital for medical

check up they were found intoxicated, and they misbehaved with the

doctor and staff of the hospital also. It had been brought to the notice of

the High Court that Sanjeev Kumar - respondent no. 3, had been

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threatening the police officials that his cousin Shri Aushutosh Kumar

was a Metropolitan Magistrate in Tis Hazari Courts, Delhi and he

would teach them a lesson for ever. It was further pointed out that Shri

Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No.

9868932336 had a talk with appellant no.1-Rajender Singh Pathania,

SHO, PS Samaipur Badli, at 10.00 P.M. on his mobile No.

9810030663 for more than three minutes on 3.2.2007. The Magistrate

had passed the release order of the said respondents, however, they

could not be released because they failed to furnish the personal bond

with a surety in the like amount. The High Court while passing the

order did not consider it proper to have an investigation on the material

facts regarding demand of bribe to the tune of Rs.500 from the writ

petitioners or regarding the mis-behaviour of the said respondents with

the doctor and staff of the hospital. The medical report reveals that

they were intoxicated. The relevant part of the medical report dated

3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital,

Jahangirpuri, Delhi reads as under:

"Smell of alcohol ++

Patient had been irritating and misbehaving with

the doctor and staff"

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9. No further investigation or inquiry had been conducted on the

charge of abusing, threatening and quarrelling by the writ petitioners

with each other. Though the High Court reached the conclusion that

the said respondents had been kept behind the bar for one day resulting

into violation of their fundamental rights, without realising that since

they failed to furnish bonds, no other option was available and they

were sent to judicial custody in view of the order of the Magistrate. If

the writ petitioners were aggrieved of the same, they could have

challenged the same by filing appeal/revision. We failed to understand

under what circumstances the writ petition has been entertained for

examining the issue of illegal detention, particularly, in a case where

there was a justification for keeping them in judicial custody.

10. The High Court reached the conclusion that in spite of the fact

that the Magistrate passed the order to furnish the bonds of Rs.5,000/-

each, the bonds had been accepted for Rs.15,000/-. There is nothing

on record to show that any of writ petitioners had raised the grievance

before the Magistrate enhancing the amount of personal bonds. In fact,

the said writ petitioners themselves voluntarily submitted bonds for

Rs.15,000/- and therefore, no illegality could be found on that ground.

8 11. The judgment and order impugned herein shocked our judicial

conscience as under what circumstances such a petty incident was

considered by the High Court to be a fit case to be referred to the CBI

for investigation.

12. This very Bench recently in Disha v. State of Gujarat & Ors.,

JT (2011) 7 SC 548, while relying upon earlier judgments of this

Court in Ashok Kumar Todi v. Kishwar Jahan & Ors., JT (2011) 3

SC 50; and Narmada Bai v. State of Gujarat, JT (2011) 4 SC 279,

came to the conclusion that for directing the CBI to hold the

investigation the court must be satisfied that the opposite parties are

very powerful and influential persons or the State authorities like top

police officials are involved and the investigation has not proceeded

with in proper direction or it has been biased. In such an eventuality, in

order to do complete justice a direction to the CBI to investigate the

case can be issued.

13. In the instant case, the grievance of the writ petitioners basically

had been against the two Constables and one Head Constable. It was

not a case where it could be held that the State authorities were

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interested or involved in the incident. Thus, in our opinion, it was not a

fit case where investigation could be handed over to the CBI.

It is not only in the instant case that the High Court has

directed CBI to investigate but it is evident from the other connected

cases which have been heard along with these appeals and are being

disposed of by separate order, that on the same day i.e. 25.2.2008 the

same Hon'ble Judge directed CBI enquiry in another paltry case under

Sections 107/151 Cr.P.C. Further on 28.2.2008 CBI enquiry was

directed in another case also under Sections 107/151 Cr.P.C.. Thus, it

is evident that the High Court has been passing such directions in a

most casual and cavalier manner considering that each and every

investigation must be carried out by some special investigating agency.

14. The object of the Sections 107/151 Cr.P.C. are of preventive

justice and not punitive. S.151 should only be invoked when there is

imminent danger to peace or likelihood of breach of peace under

Section 107 Cr.P.C. An arrest under S.151 can be supported when the

person to be arrested designs to commit a cognizable offence. If a

proceeding under Sections 107/151 appears to be absolutely necessary

to deal with the threatened apprehension of breach of peace, it is

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incumbent upon the authority concerned to take prompt action. The

jurisdiction vested in a Magistrate to act under Section 107 is to be

exercised in emergent situation.

15. A mere perusal of Section 151 of the Code of Criminal Procedure

makes it clear that the conditions under which a police officer may

arrest a person without an order from a Magistrate and without a

warrant have been laid down in Section 151. He can do so only if he has

come to know of a design of the person concerned to commit any

cognizable offence. A further condition for the exercise of such power,

which must also be fulfilled, is that the arrest should be made only if it

appears to the police officer concerned that the commission of the

offence cannot be otherwise prevented. The Section, therefore,

expressly lays down the requirements for exercise of the power to

arrest without an order from a Magistrate and without warrant. If these

conditions are not fulfilled and, a person is arrested under Section 151

Cr.P.C., the arresting authority may be exposed to proceedings under

the law for violating the fundamental rights inherent in Articles 21 and

22 of Constitution. (Vide: Ahmed Noormohmed Bhatti v. State of

Gujarat and Ors., AIR 2005 SC 2115).

1 (See also: Joginder Kumar v. State of U.P. and Ors., AIR 1994 SC

1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610).

16. In the instant case the proceedings under Sections 107/151

Cr.P.C. were initiated on 4.2.2007 and the High Court has quashed the

proceedings. At such a belated stage, correctness of the decision to

that extent does not require consideration. Even otherwise the issue

regarding quashing of those proceedings at this stage remains purely

academic. So, we uphold the impugned judgment to that extent.

17. The issue of award of compensation in case of violation of

fundamental rights of a person has been considered by this Court time

and again and it has consistently been held that though the High Courts

and this Court in exercise of their jurisdictions under Articles 226 and

32 can award compensation for such violations but such a power

should not be lightly exercised. These Articles cannot be used as a

substitute for the enforcement of rights and obligations which could be

enforced efficaciously through the ordinary process of courts. Before

awarding any compensation there must be a proper enquiry on the

question of facts alleged in the complaint. The court may examine the

report and determine the issue after giving opportunity of filing

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objections to rebut the same and hearing to the other side. Awarding of

compensation is permissible in case the court reaches the same

conclusion on a re-appreciation of the evidence adduced at the enquiry.

Award of monetary compensation in such an eventuality is permissible

"when that is the only practicable mode of redress available for the

contravention made by the State or its servants in the purported

exercise of their powers."

(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026;

Bhim Singh, MLA v. State of J&K & Ors., AIR 1986 SC 494; Smt.

Nilabati Behera v. State of Orissa & Ors., AIR 1993 SC 1960; D.K.

Basu v. State of W.B.,AIR 1997 SC 610; Chairman, Railway Board

& Ors. v. Mrs. Chandrima Das & Ors., AIR 2000 SC 988; and

S.P.S. Rathore v. State of Haryana & Ors., (2005) 10 SCC 1).

18. In Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117,

while dealing with similar issue this Court held as under:

"In cases where custodial death or custodial

torture or other violation of the rights guaranteed

under Article 21 is established, the courts may

award compensation in a proceeding under Article

32 or 226. However, before awarding

compensation, the Court will have to pose to itself

the following questions: (a) whether the violation

of Article 21 is patent and incontrovertible, (b)

whether the violation is gross and of a magnitude

to shock the conscience of the court, (c) whether

the custodial torture alleged has resulted in

death..... Where there are clear indications that

the allegations are false or exaggerated fully or in

part, the courts may not award compensation as a

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public law remedy under Article 32 or 226, but

relegate the aggrieved party to the traditional

remedies by way of appropriate civil/criminal

action."

(See also: Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR

2005 SC 402; and Bharat Amratlal Kothari v. Dosukhan

Samadkhan Sindhi & Ors., AIR 2010 SC 475).

19. In view of the above, we are of the considered opinion that the

High Court erred in awarding even token compensation to the tune of

Rs.25,000/- each as the High Court did not hold any enquiry and

passed the order merely after considering the status report submitted by

the appellant no.1 without hearing any of the persons against whom

allegations of abuse of power had been made. Such an order is liable

to be set aside.

20. In view of the above, appeals succeed and are allowed.

Judgment and order impugned herein is set aside except to the extent

that the proceedings under Sections 107/151 Cr.P.C. against the

contesting respondents stood quashed.

...............................

J. (P. SATHASIVAM)

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

New Delhi, (Dr. B.S. CHAUHAN)

August 12, 2011

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