MANU/CG/0845/2024

Equivalent/Neutral Citation: 2024:C GHC :31660-DB

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

WPCR No. 237 of 2024
Decided On: 21.08.2024
Laxman Saket Vs. State of Chhattisgarh and Ors.
Hon'ble Judges/Coram:
Ramesh Sinha, C.J. and Bibhu Datta Guru, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ashutosh Shukla, Advocate
For Respondents/Defendant: Sangharsh Pandey, Government Advocate
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO PREVENTIVE DETENTION,
TADA/POTA AND NATIONAL SECURITY - COFEPOSA - SAFEMA
ORDER
Ramesh Sinha, C.J.
1 . Heard Mr. Ashutosh Shukla, learned counsel for the petitioner. Also heard Mr.
Sangharsh Pandey, learned Government Advocate, appearing for respondents No. 1 to
5/State.
2. The present writ petition has been filed by the petitioner with the following prayers:
"10.1 This Hon'ble Court may kindly be pleased to directed the respondents No.
2, 4 and 5 to call relevant records, pertaining to the instant matter.
10.2 This Hon'ble Court may kindly be pleased to issue an appropriate writ or
direction to respondent No. 1 to take appropriate legal or disciplinary action
against the liable officer and also appropriate legal action.
10.3 This Hon'ble Court may kindly be pleased to direct the respondent No.
1/State, taking note of suffering and humiliation suffered by the petitioner by
granting a sum of Rs. 5,00,000/- (Rupees five lakhs) towards compensation to
petitioner to be paid by the 'State of Chhattisgarh'.
10.4 This Hon'ble Court may kindly be pleased to quash the proceedings of
Case No. 193 of 2024, pending before respondent No. 2.
10.5 Any other relief, which this Hon'ble Court deems, fit in the facts and
circumstances may also be granted in favour of the petitioner."
3. Learned counsel for the petitioner submits that the petitioner and respondent No. 6
got married at Rewa (M.P.) on 20.03.2023, and thereafter, the petitioner joined his
family at District Korba (C.G.). The matrimonial life of petitioner became worse day by
day as the respondent No. 6/wife complaining to him that he is influenced by his family
07-04-2025 (Page 1 of 8) www.manupatra.com Sastra University
members (in-laws), and he will separate her from his married life. He also submits that
the respondent No. 6/wife is under apprehension that the petitioner will desert her soon
under influence of in-laws and for this reason also, the respondent No. 6/wife started
acting against the wishes of petitioner and without understanding the petitioner's
wishes and love affection towards her, the respondent No. 6/wife has started torturing
in a cruel and abusive manner.
4 . It is further submitted by the learned counsel for the petitioner that the petitioner
filed an application under Section 10 of the Hindu Marriage Act, 1955 before the learned
Family Court, Korba for judicial separation. The respondent No. 6/wife has disturbed the
professional life of petitioner by making so many complaints in society and before
Police authorities. Thereafter, the respondent No. 6/wife has made written complaint
before respondent No. 5 upon which the Police has recorded the statement of
respondent No. 6/wife under Section 161 of the Cr.P.C. on 08.04.2024, where she had
made false ominous allegation regarding beating and physical abuse. Therefore, on
such complaint, the respondent No. 5 has arrested/detained the petitioner on
09.04.2024 for the offences under Sections 151/107 and 116(3) of the Cr.P.C.
5 . Learned counsel for the petitioner states that on the same day the information of
arrest was given by respondent No. 5 to respondent No. 6/wife. The Police was also
required to give information to family members or relative of arrestee, which the
respondent No. 5 failed to do, as per the guidelines of Police procedure and mandate of
Hon'ble Supreme Court in the matter of D.K. Basu V. State of West Bengal, reported in
MANU/SC/0157/1997 : 1996:INSC:1508 : 1997(1) SCC 416. He also states that the
respondent No. 5 has prepared 'Istagasa' registered at Istagasa No. 42/254 of 2024 and
then the respondent No. 5 has produced the petitioner before the District
Magistrate/respondent No. 2 after 1.40 p.m. where the petitioner counsel has applied
for bail. The respondent No. 6/wife has moved an objection application for rejection of
bail application filed by the petitioner.
6 . It is further contended by the learned counsel for the petitioner that the District
Magistrate/respondent No. 2 passed the order of bail, on the same day i.e. on
09.04.2024, in favour of petitioner on fulfilling one condition. The bail condition which
was imposed by District Magistrate in its order was (a) bond of Rs. 20,000/- and (b)
restrict the non-applicant on same amount. He also contended that as per order of
District Magistrate dated 09.04.2024, the petitioner's counsel has produced 'bail bond'
of Rs. 20,000/- before the District Magistrate on 09.04.2024 itself, but the District
Magistrate has intentionally asked for 'Solvent Surety' and without giving any
opportunity to being 'Solvent Surety' and further without informing the petitioner and
petitioner's counsel, about lack of 'Solvent Surety' has directly passed order for jail and
sent the petitioner to District Jail, Korba. Therefore, the order dated 09.04.2024,
whereby the petitioner has been sent jail, is totally illegal and without jurisdiction.
7. It is further submitted by the learned counsel for the petitioner that the petitioner is
entitled to get compensation for his wrongful detention as the Hon'ble Supreme Court
has awarded appropriate compensation to the persons compelled to face humiliation for
wrongful detention in violation of Article 21 of the Constitution of India.
8 . Learned counsel for the petitioner submits that the impugned order sending the
petitioner behind the bar is beyond jurisdiction and the Police has no power to produce
the petitioner before the learned District Magistrate without having any case diary and
in the present case, the petitioner has been arrested in connection with Istgasa No.
42/254 of 2024 for the offences under Sections 151/107 and 116(3) of the Cr.P.C. He

07-04-2025 (Page 2 of 8) www.manupatra.com Sastra University

further submits that the petitioner has not been arrested in connection with any offence
under IPC as there is no report either in Police Station Civil Line Rampur, Korba
regarding beating and physical abuse of respondent No. 6/wife against the petitioner.
Thus, it is clear that no offence has been committed by the present petitioner. He also
submits that as the petitioner was arrested merely on suspicion under Sections 151/107
and 116(3) of the Cr.P.C. which does not amount an offence, much less, a cognizable or
non-cognizable offence. There were absolutely no warrant of the Magistrate to order the
detention of the petitioner in judicial custody. In such a situation, if at all the Magistrate
could make any assumption, it could only be that no offence was made out against the
petitioner and accordingly release him either on self bond or on sureties under Section
436 of the CrPC. He contended that Section 167 of the CrPC does not permit the
Magistrate to remand any arrested person to custody merely as a matter of routine. The
Magistrate must satisfy himself that a non-cognizable offence appears to have been
committed by the arrested person and that an investigation into such offence has been
commenced and that detention of the arrested person in custody is really necessary.
Thus, it is clear that in the case of the petitioner as there is no report of commission of
any cognizable offence, the Police has no power to investigate the matter and the
Magistrate has no power to send the person to jail. Thus, the Police and learned
Magistrate erred in sending the petitioner in jail. He also contended that Section 151 of
the Cr.P.C. only provides for arrest of a person to prevent the commission of a
cognizable offence and the person so arrested can be detained in custody only upto 24
hours and in the absence of anything else, such person should be released by the
arresting officer himself on the expiry of the said 24 hours. If no offence is made
against a person arrested under Section 151 of the Cr.P.C., there cannot be any
investigation and consequently Section 167 of the CrPC cannot have any application so
as to enable the Magistrate to remand the arrested person to custody. Therefore, the
Magistrate has no jurisdiction to send the petitioner under Section 167(2) of the CrPC.
He lastly contended that the petitioner has been arrested not for an offence, but on a
suspicion of beating and physical abuse to respondent No. 6/wife, therefore, he cannot
be detained for a period more than 24 hours and he cannot be sent in judicial custody
in exercise of Section 167 (2) of the CrPC, therefore, the arrest and detention of the
petitioner are not only bad and illegal, but it is against the law and in violation of
Section(sic Article) 21 of the Constitution of India. As such, the writ petition deserves to
be allowed and the respondents authorities may be directed to pay a sum of Rs.
5,00,000/- as compensation to the petitioner for mental harassment and illegal
detention from 09.04.2024.
9. On the other hand, learned State counsel submits that the petitioner was arrested by
the police personnel on suspicion, thereafter he was produced before the Magistrate and
the learned Magistrate passed a judicial order of granting remand of the petitioner to
the police. The petitioner was sent behind the bar under the judicial order passed by the
learned Magistrate. The custody of the petitioner was judicial custody and cannot be
named or termed as illegal detention. He further submits that the judicial order cannot
violate the fundamental right of the petitioner and against the judicial order, a writ
petition in nature of criminal under Article 226 of the Constitution of India is not
maintainable and liable to be dismissed.
10. We have heard learned counsel for the parties and perused the records of the case.
11. Section 41 of the Cr.P.C. reads as under :-
"41. When police may arrest without warrant. (1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person-
07-04-2025 (Page 3 of 8) www.manupatra.com Sastra University
 (a) who commits, in the presence of a police officer, a cognizable
offence;
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may extent to seven
years whether with or without fine, if the following conditions are
satisfied, namely:-
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured; and the police officer
shall record while making such arrest, his reasons in writing;
[provided that a police officer shall, in all cases, where the
arrest of a person is not required under the provisions of the
sub-section; record the reasons in writing for not making the
arrest.]
(ba) against whom credible information has been received that
he has committed a cognizable offence punishable without
imprisonment for a term which may extent to more than seven
years whether with or without fine or with death sentence and
the police officer has reason to believe on the basis of that
information that such person has committed the said offence;],
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his
07-04-2025 (Page 4 of 8) www.manupatra.com Sastra University
 duty, or who has escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable
complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India
which, if committed in India, would have been punishable as
an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained
in custody in India; or
(h) who, being a released convict, commits a breach of any
rule made under sub- section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided that
the requisition specifies the person to be arrested and the
offence or other cause for which the arrest is to be made and it
appears therefrom that the person might lawfully be arrested
without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of section 42, no person
concerned in a non cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order of
a Magistrate.]"
12. From bare perusal of Section 41 of the CrPC, it is apparent that the Police can
exercise power given in the above section as preventive measure and this Section does
not include penal provision. It is well settled principle of law that life and liberty of a
citizen guaranteed under Article 21 of the Constitution of India includes life with dignity
and liberty with dignity. Liberty must mean freedom from humiliation and
unnecessary/false/mischievous arrest, indignities at the hand of the authority would
include police excesses in a given case. The petitioner was arrested in connection with
non-cognizable offence as till filing of the return, State could not bring any material to
establish that the petitioner had committed any cognizable offence, therefore, there was
no need for the petitioner to furnish any security for his enlargement on bail.
1 3 . Further Section 167 of the CrPC does not permit the Magistrate to remand an
arrested person to custody merely as a matter of routine. The Magistrate must satisfy
himself that a non-bailable offence appears to have been committed by the arrested
person and that an investigation into such offence has commenced and that detention of
the arrested person in custody is really necessary. The duty of the Magistrate becomes
all the more insistent in the case of a person who has been arrested on a mere
suspicion under Section 41(1)(d) of the CrPC. The Magistrate has to be watchful since
the power to arrest on suspicion under Section 41(1)(d) of the CrPC without a warrant
is liable to be abused by the police.
14. Section 41 of the CrPC has been dealt at length by the Hon'ble Supreme Court in
07-04-2025 (Page 5 of 8) www.manupatra.com Sastra University
the matter of Arnesh Kumar v. State of Bihar, reported in MANU/SC/0559/2014 :
2014:INSC:463 : (2014) 8 SCC 273 and the Hon'ble Supreme Court observed in para 5,
7.1, 7.3, 9 as under :
"5. Arrest brings humiliation, curtails freedom and cast scars forever.
Lawmakers know it so also the police. There is a battle between the lawmakers
and the police and it seems that police has not learnt its lesson; the lesson
implicit and embodied in the Cr.P.C. It has not come out of its colonial image
despite six decades of independence, it is largely considered as a tool of
harassment, oppression and surely not considered a friend of public. The need
for caution in exercising the drastic power of arrest has been emphasized time
and again by the courts but has not yielded desired result. Power to arrest
greatly contributes to its arrogance so also the failure of the Magistracy to
check it. Not only this, the power of arrest is one of the lucrative sources of
police corruption. The attitude to arrest first and then proceed with the rest is
despicable. It has become a handy tool to the police officers who lack
sensitivity or act with oblique motive.
7.1 From a plain reading of the aforesaid provision, it is evident that a person
accused of offence punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years with or without fine,
cannot be arrested by the police officer only on its satisfaction that such person
had committed the offence punishable as aforesaid. A police officer before
arrest, in such cases has to be further satisfied that such arrest is necessary to
prevent such person from committing any further offence; or for proper
investigation of the case; or to prevent the accused from causing the evidence
of the offence to disappear; or tampering with such evidence in any manner; or
to prevent such person from making any inducement, threat or promise to a
witness so as to dissuade him from disclosing such facts to the Court or the
police officer; or unless such accused person is arrested, his presence in the
court whenever required cannot be ensured. These are the conclusions, which
one may reach based on facts.
7.3 In pith and core, the police officer before arrest must put a question to
himself, why arrest? Is it really required? What purpose it will serve? What
object it will achieve? It is only after these questions are addressed and one or
the other conditions as enumerated above is satisfied, the power of arrest
needs to be exercised. In fine, before arrest first the police officers should have
reason to believe on the basis of information and material that the accused has
committed the offence. Apart from this, the police officer has to be satisfied
further that the arrest is necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.P.C.
9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest
or threat of arrest looming large on accused requires to be vitalised. Section
41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment)
Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
"41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub- section (1) of Section 41, issue a notice directing
the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion

07-04-2025 (Page 6 of 8) www.manupatra.com Sastra University

 exists that he has committed a cognizable offence, to appear before
him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to in
the notice unless, for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of
the notice or is unwilling to identify himself, the police officer may,
subject to such orders as may have been passed by a competent Court
in this behalf, arrest him for the offence mentioned in the notice."
The aforesaid provision makes it clear that in all cases where the arrest of a
person is not required under Section 41(1), CrPC, the police officer is required
to issue notice directing the accused to appear before him at a specified place
and time. Law obliges such an accused to appear before the police officer and it
further mandates that if such an accused complies with the terms of notice he
shall not be arrested, unless for reasons to be recorded, the police office is of
the opinion that the arrest is necessary. At this stage also, the condition
precedent for arrest as envisaged under Section 41 Cr.PC has to be complied
and shall be subject to the same scrutiny by the Magistrate as aforesaid."
1 5 . The petitioner has sought compensation for wrongful detention and the Hon'ble
Supreme Court in violation of Article 21 of the Constitution of India, has awarded
appropriate compensation to the persons compelled to face humiliation for wrongful
detention. The word 'harassment' has been dealt by the Hon'ble Supreme Court in the
matter of Mehmood Nayyar Azam v. State of Chhattisgarh, reported in
MANU/SC/0615/2012 : 2012:INSC:319 : 2012(8) SCC 1 in para 22 as under :
"22. At this juncture, it becomes absolutely necessary to appreciate what is
meant by the term "harassment". In P. Ramanatha Aiyar's Law Lexicon, Second
Edition, the term "harass" has been defined, thus: -
"Harass. "injure" and "injury" are words having numerous and
comprehensive popular meanings, as well as having a legal import. A
line may be drawn between these words and the word "harass"
excluding the latter from being comprehended within the word "injure"
or "injury". The synonyms of "harass" are: to weary, tire, perplex,
distress tease, vex, molest, trouble, disturb. They all have relation to
mental annoyance, and a troubling of the spirit."
The term "harassment" in its connotative expanse includes torment and
vexation. The term "torture" also engulfs the concept of torment. The word
"torture" in its denotative concept includes mental and psychological
harassment. The accused in custody can be put under tremendous psychological
pressure by cruel, inhuman and degrading treatment. "
16. The Hon'ble Supreme Court while emphasizing on dignity in the same judgment
held in para 36 as under :

07-04-2025 (Page 7 of 8) www.manupatra.com Sastra University

 "36. From the aforesaid discussion, there is no shadow of doubt that any
treatment meted out to an accused while he is in custody which causes
humiliation and mental trauma corrodes the concept of human dignity. The
majesty of law protects the dignity of a citizen in a society governed by law. It
cannot be forgotten that the Welfare State is governed by rule of law which has
paramountcy. It has been said by Edward Biggon "the laws of a nation form the
most instructive portion of its history." The Constitution as the organic law of
the land has unfolded itself in manifold manner like a living organism in the
various decisions of the court about the rights of a person under Article 21 of
the Constitution of India. When citizenry rights are sometimes dashed against
and pushed back by the members of City Halls, there has to be a rebound and
when the rebound takes place, Article 21 of the Constitution springs up to
action as a protector. That is why, an investigator to a crime is required to
possess the qualities of patience and perseverance as has been stated in
Nandini Sathpathy v. P.L. Dani, MANU/SC/0139/1978 : 1978:INSC:80 :
1978(2) SCC 424."
17. The Hon'ble Supreme Court in the matters of Nilabati Behera (Smt.) Alias Lalita
Behera v. State of Orissa and others, MANU/SC/0307/1993 : 1993:INSC:113 : 1993 (2)
SCC 746, D.K. Basu V. State of West Bengal, MANU/SC/0157/1997 : 1996:INSC:1508 :
1997(1) SCC 416, Sube Singh v. State of Haryana and others, MANU/SC/0821/2006 :
2006:INSC:67 : 2006(3) SCC 178, Hardeep Singh v. State of Madhya Pradesh,
MANU/SC/1468/2011 : 2012(1) SCC 748 and Shreya Singhal v. Union of India,
MANU/SC/0329/2015 : 2015:INSC:257 : 2015(5) SCC 1, held that the Investigating
Officers in no circumstances can flout the law with brazen proclivity. It is also observed
that the constitutional Courts taking note of suffering and humiliation are entitled to
grant compensation.
1 8 . From above discussion, in the light of the judgments passed by the Hon'ble
Supreme Court in the matters of Nilabati Behera (Smt.) Alias Lalita Behera (supra), D.K.
Basu (supra), Sube Singh (supra), Hardeep Singh (supra) and Shreya Singhal (supra)
and the provision of law, it is quite vivid that on mere suspicion, a person cannot be
arrested against whom the commission of cognizable or non-bailable offence is not
made out and he cannot be remanded to judicial custody. On the contrary, such person
should be released on bail by invoking power under Section 436 of the CrPC treating the
case as bailable one. In the instant case, the petitioner was arrested by the
Investigating Agency, he was produced before the concerned Court and from where he
was sent to judicial custody. The above facts clearly reveal that the right of life and
liberty of the petitioner enshrined under Article 21 of the Constitution of India has been
violated, therefore, the petitioner is entitled to get appropriate compensation. We deem
it fit to award compensation of Rs. 25,000/- to the petitioner, and same shall be
payable by the State Government to the petitioner within a period of 30 days from
today.
19. With the aforesaid observations and directions, this writ petition is allowed.
© Manupatra Information Solutions Pvt. Ltd.

07-04-2025 (Page 8 of 8) www.manupatra.com Sastra University