DATE OF JUDGEMENT:
11th June 2021
Honourable Justice Surya Prakash Kesarwani, Honourable Justice Shamim Ahmed
(Petitioner) - Shiv Kumar Verma and Anr.
(Respondent) – State of U.P. and Ors.
1. Section 107 of CrPC – according to this section, whenever an executive magistrate receives an information which speaks about an individual who is likely to breach the peace or disturb the public tranquillity or commit any wrongful act which may end up in disturbing the peace or tranquillity of the public, and he feels that there are sufficient grounds for proceeding then he can ask that individual to show the cause as to why he should not be not be ordered to execute a bond in order to maintain the peace for such period, which should not exceed a year, or as the Magistrate deems fit.
2. Section 111 of CrPC – as per this section, whenever a magistrate is acting under Sections 107, 108, 109 or 110, feels that it is necessary than an individual shows cause under such section then he shall make an order in writing which shall set forth the substance of the information which is received, along with the amount of the bond which has to be executed and the term for which it has to be in force, and also the number, character and class of sureties (if there are any) required.
3. Section 116 of CrPC – this section states that either after the inquiry has commenced or before it is completed under sub-section (1), if the magistrate feels that there is a necessity for an immediate measure to prevent the breach of the peace or tranquillity of the public, or even for the safety of the public may direct the person to execute a bond, in respect of whom the order has been made (the reasons for this, should be recorded in writing), with or without sureties to keep the peace or maintain good behaviour until the inquiry is concluded, and the magistrate can also detain the individual in custody until a bond like this is either executed or is in default of execution until the inquiry is concluded.
4. Section 151 of CrPC – according to this section, a police officer is entitled to arrest an individual knowing that they might be behind the designing of committing an offence, without even the orders from a magistrate or a warrant, if they feel that the commission of the offence cannot be prevented in any other way. It also states that any individual, who has been arrested on the basis of this situation, can be detained in custody for a period of 24 hours from the time of their arrest until any further detention is required or has been authorised by either this code or any other law.
5. Article 21 of the Constitution – this article states that no individual within our country should be deprived of their right to life and personal liberty, except according to the procedure which has been established by law.
1. Whether the petitioners were detained illegally? [covered from Para 3 to 7]
1. The facts of this case are: - there was a dispute regarding the partition of the ancestral property between the petitioners and their family members, namely Rajendra Prasad, Shiv Kumar Verma and Raj Kumar Verma. The police had arrested the petitioners in the apprehension of breach of public peace under Section 151 of CrPC.
2. It was on 8th of October’2020 that a Challani Report had been submitted by the Sub-Inspector to the Sub-Divisional Magistrate under Sections 107/116/151 of CrPC. On receiving the report, the magistrate registered the case and passed an order of detaining the petitioners. The petitioners had submitted personal bond along with other documents on 12th of October’2020 however, the respondent did not release them and directed the file to be placed on 21st of October, after verification. It was after their release on the 21st of October that the petitioners decided to file for a writ petition claiming compensation, against their illegal detention by the respondent.
3. In their response to this question, the respondent's have stated that the action taken by the state government is correct in nature and they also had put forward the circulars of these actions. After looking at the counter affidavit put forward by the respondents, it was observed that the police authorities were acting in an arbitrary and illegal manner in submitting the Challani reports under Sections 107 and 116 of CrPC.
4. The respondent also submitted that by the application of the petitioners that they are ready to furnish personal bonds along with bail bonds may be released on bail and they had directed the concerned Tehsildar to verify those revenue records which had been submitted by the sureties and on that verification the petitioners were supposed to be released.
5. The court observed that on perusal of the order passed by the respondent there was no satisfaction recorded by the respondent, neither were the petitioners required to show any cause as to why should they not be ordered to execute a bond either with or without sureties. The court thus stated that a breach of mandate of Section 107 of CrPC has been committed by the respondent. It was also observed that all the necessary requirements of Section 111 were absent in the order given by the respondent making his actions arbitrary and hence illegal.
6. Further it was observed that despite the submission of personal bond along with other documents by the petitioner before the respondent, the petitioners were not released by the respondent against his own order that they shall be detained till presentation of personal bond or bail bond. The court said that this non release of the petitioners even after they had submitted the bail bond along with other documents stands as a clear breach of Article 21 of the constitution and makes the detention of the petitioners illegal in nature.
7. The court also cited the case of ‘Lucknow Development Authority V. M.K. Gupta ’ and mentioned that the sovereignty of our constitution vests in the people. And this is the reason why each and every limb of the constitutional machinery is supposed to be people oriented nobody in the name of exercising statutory power can claim immunity except those who are protected by the statute themselves. It has also been stated by the court that the cases where the discretion of power is malafide and the petitioner is entitled to compensation for mental and physical harassment then no officer can claim to be under the protective cover.
8. According to the policy decision of the state government in the month of March, there will be a compensation of Rupees 25,000 for the illegal detention of any citizen by any officer of the state government and there will be initiation of disciplinary proceedings against such officers. The court followed this policy and stated that after this no further direction for payment of compensation is required to be issued for the case at hand. The writ petition was disposed by issuing directions which stated that the state government should ensure that provisions of CrPC which are mentioned in the policy decision are strictly followed by all the officers who are concerned with it and in case where any individual is illegally detained then they will be granted a compensation of ₹25,000 and this information should be circulated largely to the public and all the required officers.
This case stands as one of those milestones which do a commendable job of re storing the fate of the people into the legal system of a country. Our land is one of those pivotal examples which demonstrates the use as well as the abuse of power. No matter how much faith we have in our legal system we cannot deny the fact that there has been a misuse of power not just one but many times in our country but this case helps us in restoring the faith that no power is bigger than the law and no innocent will suffer for the misuse of power of any authority.
When we look at the model of a country where majority people belong to the middle class one fact is very clear to us, that a common man is not equipped with either enough power or resources or even money to match the might of the state and its instrumentalities.
We choose our government, because we stand as a democracy. But when the government chooses the people who will work for them and who will serve the public that it is important that these people add aware of the responsibility that comes with their power. They should understand that the use of their power will always be subordinate to their duty of service and if in a case a public authority acts in a malicious manner or abuses their power to harass any individual then it is not the use of power but mere abuse and it is the duty of the law to protect the citizens against it.
This is why anybody who is responsible for this abuse should suffer and not the individual being harassed and so when an authority practises their discretion of power with a malafide intention then the complainant will be entitled to compensation and the officer will not get the defence of protective cover. So once a competent authority finds out that the complainant is entitled for compensation for the actions of those who are abusing their power then the payment of the compensation has to be made to the complainant from a public fund immediately however this fund should be recovered from those who practise this abuse of power.
The people in our society especially the politicians are hungry of power. And to a point it is also understandable because we cannot deny that power can take any individual from the ground to the clouds but what they fail to look at is that all of this is very temporary. They fail to understand that the tables can turn anytime and they can lose their power and their actions will have repercussions. While a common man might not always have the time, resources or even the courage to put up a fight against these authorities we have to ensure that our legal system is so stern and strict against such people that they don't even think of doing it to any individual.
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