Mewa Ram And Ors vs State Of Rajasthan And Ors

Petitioners by way of this writ petition have made the following prayer:

"(a) by an appropriate writ, order or direction, the respondents may be directed to pay compensation to the tune of Rupees One Lac for each of the petitioners or as deemed just and proper in the facts and circumstances of the case by the Hon'ble Court.

(b) by an appropriate writ, order or direction, it may kindly be directed to register a criminal case for the offensive acts covering the forcible abduction from Bus stand and illegal confinement in the horrible atmosphere of the Police Station against respondent No.5.

(c) by an appropriate writ, order or direction, to direct the State (Resp. No.1) to ensure due compliance of the Law with regard to arrest without warrant and to comply with the specific directions of the Hon'ble Supreme Court as enumerated above in letter and spirit.

(d) by an appropriate writ, order or direction, respondent No.1 and 2 be directed to initiate proceedings for enhancement of the punishment already imposed upon respondent No.5.

(e) Any other writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the petitioners.

(f) Exemplary costs of the writ petition may kindly be awarded in favour of the petitioners."

Learned counsel appearing for the petitioners submits that the Police authorities have wrongly abducted the petitioners from Bus Stand and wrongly detained them in Police Station all through out the night and thereby deprived the petitioners of their fundamental right of liberty at the instance of the Bus Driver Jagdish Singh. Respondent No.5 Narpat Singh, who was C.I. at Shastri Nagar Police Station, without following provisions of law and on the askance of the Bus Driver detained petitioners for the entire night and up to 11:30AM, when they were produced before the court of Additional District Magistrate, Jodhpur where a complaint was submitted under sec.151 CrPC and 107 CrPC.

Petitioners submitted that in this regard a complaint was also registered with the Superintendent of Police, Jodhpur, who conducted a departmental inquiry and complaints were also made to the Chief Minister. The petitioners submitted that the punishment of censure was imposed against respondent No.5 for his wrongful act and the petitioners ought to be compensated by this Court.

The writ petition was admitted and notices were issued to respondents. An Additional Affidavit has been filed by the Assistant Commissioner of Police, placing on record certain documents, who refused the averments made by the petitioners and it has been stated that while no FIR was lodged, a complaint was filed under Sections 151, 107, 116(3) CrPC against petitioners- Mewa Ram and his son Anand Prakash on 07.09.1992. It was on account of Driver of the Bus in which petitioners were travelling, who complained that the petitioners had threatened with serious consequences and had also engaged in quarreling with the Driver; it was at the instance of Bus Driver that the SHO took action against the petitioners who were found to have been threatening the Bus Driver, resulting in the Driver not proceeding with the Bus tour and had brought the Bus to the Police Station.

The Assistant Commissioner of Police conducted a fact finding inquiry and found that the petitioners had threatened the Bus Driver, resulting in disallowing him to perform public duty and also causing inconvenience to all other passengers. The fact finding inquiry report also mentions that the Police Inspector, namely respondent No.5 Narpat Singh ought to have registered a case under secs.332, 352 IPC, who had taken a lenient approach and only submitted complaint under secs.151, 107 & 116 CrPC. On account of the same, the respondent No.5 was punished with the penalty of censure. The petitioners, therefore, can not take advantage of such punishment and it was not a case of harassment.

The respondent No.5 has also filed his reply and counsel for the respondent No.5 pointed out that the petitioners were continuously threatening Driver of the Bus and even in the Police Station they were threatening him of taking dire action. They were themselves at fault and therefore, there is no occasion to pay them any compensation.

Learned counsel submitted that in terms of sec.151 CrPC, if a Police Officer has reasonable apprehension of any untoward incident which a person is likely to cause, which may result in a cognizable offence, he would be entitled to exercise his jurisdiction and proceed for arrest without orders from a Magistrate. Such exercise of power is at the sole discretion & decision of the Inspector of Police at that particular moment. It has also come on record that the respondent No.5 had no previous enmity with the petitioners and they were stranger to him. The discretion exercised by him was on the basis of complaint by concerned Driver of the Bus and the action can not be said in any manner to be unjustified.

Learned counsel submits that the respondent No.5 has had outstanding career and has retired from the post of Additional Superintendent of Police. His record of service has been clean and that the petition, being frivolous, be dismissed.

I have considered rival submissions and find that the complaint was registered against petitioners under secs.151, 107 and 116 CrPC and they submitted bail bonds before the ADM. The counsel for the petitioners has relied on some order dated 18.11.1993 (Annx.11) but is neither a certified copy nor a photocopy of the original order and is a mere typed document in Hindi submitted without affidavit. Similarly, other documents which are neither original nor photostat copies of original have been filed along with the writ petition and ##{no affidavit in support of the documents is on record. The documents annexed in the writ petition, thus, are without any affidavit and therefore, it would be unfair and unjustified to rely upon such documents.}

As regard reply by the respondents, I am satisfied that the action taken by the then SHO was in accordance with the provisions contained in sec.151 CrPC. The opinion of the SHO for arresting a person who is likely to commit any cognizable offence can not be substituted by any other person. In D.K. Basu vs. State of West Bengal: (1997) 1 SCC 416, guidelines have been laid down by Hon'ble Supreme Court for exercise of such powers.

"We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs 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 a such memo shall be attested by atleast one witness. who may be either 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 counter signed 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 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 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 he 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 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 concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaka 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.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed."

Examining case of the petitioners on said foothold also, I find that no fault can be attributed to the actions of the SHO who had found petitioners to be threatening the Bus Driver of dire consequences after reaching at Balotra, which resulted also in quarreling with him. Witnesses and Police Constables had reported about agitated condition of the petitioners. The SHO was also informed of the rude behaviour of the petitioners. Considering all the aspects, the SHO arrested both of them for the night and has provided them necessary requirements. They were not put in jail and were allowed to have food brought from relatives. They were not subjected to any cruelty or manhandling and proper course was adopted for producing them before concerned ADM next day. Thus, role of the SHO in this case can not be doubted.

The claim of the petitioners, thus, not made out. The writ petition is devoid of merit. The same is dismissed.