'Violation Of Fundamental Rights': Bombay High Court Directs ₹2 Lakh Compensation To Man Detained Without Notice, Grounds Of Arrest

The Nagpur Bench of the Bombay High Court has directed the Maharashtra government to pay Rs. 2 Lakh as compensation to a 26-year-old man who was arrested without being informed of the grounds of arrest or being issued a proper notice.

A Division Bench of Justice Urmila Joshi-Phalke and Justice Raj D. Wakode reiterated the well-settled principle that High Courts under Article 226 of the Constitution have jurisdiction to grant monetary compensation to a victim whose fundamental rights under Article 21 have been violated by State officials.

The Court relied on the Supreme Court's judgement in Satender Kumar Antil vs Central Bureau of Investigation and another (2022), and observed that while making arrests for cognizable offences punishable with a jail-term not exceeding seven years under Section 41 of the Code of Criminal Procedure (CrPC), a police officer is “duty-bound” to record reasons in writing for making or not making an arrest.

“Section 41 deals with the procedure when police may arrest without warrant. Section 41-A deals with notice of appearance before the Police Officer. Here, in the present case, neither notice is issued under Section 41 or 41-A to the petitioner,” the Court said.

The Bench further noted that the general diary entry neither disclose the grounds of arrest being communicated to the petitioner nor the receipt of “secret information”, based on which the police officials raided the petitioner's hotel and detained him over alleged commercial misuse of domestic gas cylinder under Essential Commodities Act.

“Here, in the present case, neither general diary entry nor arrest panchanama is placed on record to show that any grounds of arrest were communicated to the petitioner before he was taken into custody and brought to the police station. There is no entry as to receipt of the secret information also,” the Court said.

The Court also took into account that the police officials made the false statement before the High Court, denying that they had seized the petitioner's mobile phone. However, a subsequent departmental inquiry established that the officers had retained the phone without drawing a seizure panchanama.

“As already observed, during the departmental enquiry the charge against respondent Nos.3 and 4 to the extent that they have kept the mobile-cell of the petitioner without drawing seizure panchanama is established and, therefore, they were punished. Increment of respondent No.3 was withheld for one year, whereas deduction of Rs.1500/- was effected from monthly pension of respondent No.4 for two years,” the Court said.

The Bench added, “The observations of the Superintendent of Police, while conducting the enquiry, are that respondent No.4 has not observed guidelines issued and admittedly has not communicated grounds of arrest to the petitioner, which is clearly violation of his personal liberty under Article 21 of the Constitution of India.”

Invoking the motto of Maharashtra State Police “Sadrakshnaya Khalanighrahanaya”, which means to protect good and to punish evil, the Court said that the police have a duty not merely to the individual accused before them, but also to the State and to the community at large.

“In the present case, respondent Nos.3 and 4 who are the Police Officers whose primary responsibility was to protect the and uphold the law. However, not only they have violated the law but also violated guidelines issued by the Hon'ble Apex Court as to the arrest,” the Court said.

The Court relied on the Apex Court's judgements in Neelabati Behera (Smt) vs. State of Orissa & Ors., (1993) and Rudul Sah vs. State of Bihar and another (1983), which ruled that the Supreme Court and the High Courts have jurisdiction to grant compensation to a person whose fundamental rights under Article 21 have been violated.

Finding the police officials to be guilty of violating fundamental rights of the petitioner and committing an “error” in arresting him without following due process of law, the Court directed the state to pay compensation of Rupees two lakh to the petitioner within eight weeks.

Case: Vaibhav vs State of Maharashtra & others

CRIMINAL WRIT PETITION NO.389 OF 2024

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