Amit Kumar Meegi vs State Of Uttarakhand And Others

Ramesh Ranganathan, C.J.

This writ petition was filed on 13.11.2018 seeking a writ of mandamus to direct the State of Uttarakhand, the District Magistrate, Dehradun and the Senior Superintendent of Police, Dehradun to provide protection to the petitioner, both to his life and liberty, from the unlawful and criminal acts of respondent nos. 4, 5 & 6. While respondent no. 4 is the Police Chowki In-charge, respondent no. 5 is the Police Inspector, and respondent no. 6 is the Police Constable. Grave and serious allegations have been made, in the affidavit filed in support of the writ petition, of the petitioner having been physically assaulted, beaten black and blue, and to have been threatened that, if he failed to vacate the house, he would face dire consequences.

When the matter was listed before us on 14.11.2018, the learned Deputy Advocate General sought time to obtain instructions. We had granted him time till 16.11.2018. On 16.11.2018, we had passed an elaborate order recording the submission of the learned Deputy Advocate General that the petitioner was called to the police station, even without an FIR being registerd against him; and had recorded our, prima facie, satisfaction that the respondents had violated the petitioner's fundamental rights under Article 21 of the Constitution of India. However, before directing action to be initiated against respondent nos. 4 & 5 for their, prima facie, highhanded act, we thought it appropriate to direct the Senior Superintendent of Police, Dehradun to cause an inquiry, and to submit a report to this Court within one week. We had called upon respondent nos. 4 & 5 to file their counter affidavits within one week, and to be present with the entire records on the next date of hearing.

The Senior Superintendent of Police, Dehradun has submitted his report to this Court wherein she acknowledges that the petitioner was called to the Police Station on 24.10.2018 long before the writ petition came to be filed on 13.11.2018. While denying having assaulted the petitioner, both respondent nos. 4 & 5 admit that respondent no. 4 had called the petitioner to the police station on 24.10.2018. Yet another relevant fact is that FIR No. 245 was registered only on 23.11.2018, just three days prior to the date on which respondent nos. 4 & 5 were called upon to file their counter affidavits, and the Senior Superintendent of Police was called upon to submit her inquiry report. The FIR registered on 23.11.2018 is for the cognizable offences under Sections 420, 465, 466, 467, 468 and 471 read with Section 120-B of the Indian Penal Code.

The question, which necessitates examination, is whether the petitioner could have been forcibly called upon to come to the police station without even a complaint being registered under Section 154(1) Cr.P.C. Since the stand initially taken by the learned Deputy Advocate General was that the police officials had such a power, it is necessary for us to examine the validity of his contention.

Section 154 Cr.P.C. relates to information in cognizable cases and, under sub-section (1) thereof, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe. Section 156 Cr.P.C. relates to the police officer's power to investigate cognizable cases and, under sub-section (1) thereof, any officer, in charge of a police station, may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. The power of the police officer to commence investigation under Section 156(1) Cr.P.C., into a cognizable offence, can be exercised only after an information is registered under Section 154(1) Cr.P.C. The provisions of the Code do not confer any power on the police officers to summon a suspect to the police station, or to investigate into a cognizable offence, even without the information being registered under Section 154(1) Cr.P.C.

Every citizen of this country has the fundamental right of life and liberty, and he / she cannot be deprived of such a right, save by authority of law. It is only if the law confers such a power on the officials to summon a suspect, even without registering a complaint under Section 154(1), can the police officials claim not to have violated Article 21 of the Constitution of India. Any action of the police officials to summon an accused to the police station, contrary to the provisions of the Criminal Procedure Code or any other law in force, would violate the fundamental rights of the petitioner, more particularly under Article 21 of the Constitution of India.

Even after registration of the information under Section 154(1) Cr.P.C., Section 41A Cr.P.C. requires a notice of appearance before the police officer to be given and, under sub-section (1) thereof, the police officer shall, in all cases where the arrest of a person is not required under the provisions of Section 41(1), issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists.

In the present case, the police officials have not exercised their powers of arrest under Section 41(1) Cr.P.C. They have summoned the petitioner to the police station, admittedly, even without a notice being issued under Section 41-A(1) of the Code of Criminal Procedure. Even to arrest an individual, the power conferred under Section 41(1) Cr.P.C. is hedged by several restrictions. In this context, it is useful to take note of the judgment of this Court in Smt. Reena vs. State of Uttarakhand 2013(2) U.D. 362, wherein one of us (Alok Singh, J.) has dealt with the power of arrest under Section 41 in great detail.

In Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, the Supreme Court observed:

"........... We are of the opinion that if the provisions of Section 41, Code of Criminal Procedure which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Code of Criminal Procedure for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;

All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

It is disconcerting that, despite the Supreme Court having marked a copy of the aforesaid judgment to all District Magistrates, as also the Director General of Police of all the State Governments and Union Territories, and having observed that compliance of the directions therein must be ensured, we still find that police officials are not only brazenly violating the law, but are also taking the law into their own hands. While fairly stating that the provisions of the Criminal Procedure Code would not give any such power to the police officials to summon a suspect to the police station (except in grave and serious cases, where it is impossible to register an FIR before detaining a suspect), learned Deputy Advocate General would place reliance on the provisions of Section 52(1) of the Uttarakhand Police Act. It is necessary, therefore, to examine whether or not this submission of the learned Deputy Advocate General has any force.

Section 52(1) of the Uttarakhand Police Act stipulates that, in respect of a Police District, the Superintendent of Police, in concurrence with the District Magistrate, may issue general or special orders in such manner, as may be prescribed, in respect of Clauses (a) to (e) thereunder. Firstly, the Superintendent of Police is required, under Section 52(1), to obtain the concurrence of the District Magistrate, and it is only thereafter is he empowered to issue general or special orders, that too only with respect to what is enumerated in Clauses (a) to (e) thereunder. Learned Deputy Advocate General is not able to show us under which of Clauses (a) to (e) the petitioner's case falls, nor is he in a position to state whether the Superintendent of Police had obtained the concurrence of the District Magistrate.

Section 52(3) of the Uttarakhand Police Act, on which great stress is placed by the learned Deputy Advocate General, enables the Superintendent of Police, by an order published in prominent local newspapers, to require every owner of a household or a shop or a public premises to furnish details of the tenant or domestic help in the specified format. Publication of an order in the local newspaper is a prerequisite under Section 52(3) of the Uttarakhand Police Act. Further, even in terms of this publication, the owner of a household or a shop or a public premises can only be called upon to furnish details of a tenant or a domestic help in the specified format. No power is conferred, even by Section 52(3) of the Uttarakhand Police Act, to summon an individual to the police station for the mere asking.

While we were initially inclined to direct the Director General of Police of the State of Uttarakhand to initiate disciplinary action forthwith against respondent nos. 4 and 5, and to submit an action taken report to this Court as to what action he proposes to take to ensure that the law enforcers do not take law into their hands, and are not permitted to act in flagrant violation of the law, the learned Deputy Advocate General would request us to take a lenient view. Pursuant to his assurance that respondent nos. 4 & 5 would not resort to such acts in future, both respondent nos. 4 & 5 have filed supplementary affidavits.

In his supplementary affidavit, respondent no. 4 admits that he had erred in law in calling the petitioner to the police station, and that he expresses his regret and contrition. In his supplementary affidavit, respondent no. 5, while admitting that the action taken was contrary to law, does not however admit that he had called the petitioner to the police station.

Be that as it may, since both the officers have expressed regret, and they appear to be at the threshold of their long career, we are inclined to show some indulgence and to, instead, warn them to be more careful in future. That does not, however, mean that the petitioner should be left remediless, for if the allegations made by him in the writ petition are true (and we may not be understood to have held that they are true), then he is entitled not only to take legal action against the police officials for their criminal act of having indulged in physical assault, but also to claim damages for the physical injury and mental agony which he may have suffered in the process. Suffice it, while closing the writ petition, to leave it open to the petitioner to avail his remedies of filing a complaint before the Magistrate under Section 156(3) Cr.P.C. and to file a suit claiming damages for the physical injury and the mental agony, if any, which he may have suffered in the process.

The writ petition is, accordingly, disposed of with exemplary costs, which we quantify at Rs.10,000/-. Respondent nos. 4 & 5 shall pay costs of Rs.5,000/- each to the petitioner within four weeks from today, failing which it is open to the petitioner to initiate appropriate action for recovery of the said amount in accordance with law.