Raghuvansh Dewachand Bhasin V. State of Maharashtra & Another

FACTS :

A complaint case no. 163/P/2000 was filed by Mr. Prem Harchandrai against the appellant (a practicing advocate), under section 324 IPC. Where at the preliminary stage the case was heard by the Additional Chief Metropolitan Magistrate and due to the absence of the appellant on the date of hearing i.e. on 7-8-2002, the court issued a non-bailable warrant against him. However, on 12th of August, 2002 the warrant was cancelled as the appellant appeared before the court. This was challenged by the complainant on 15th of August, 2002 and approached the Colaba Police Station for the same and upon his insistence, respondent 2 (who was a police inspector) executed the warrant through a constable. When the appellant was sought to be arrested, he informed the constable about the cancellation of warrant, but due to the lack of documentary evidence relating to cancellation of the warrant, he was arrested before a public gathering, which had assembled in connection with the Independence Day celebrations at his club(Radio Club). He was then produced before the Magistrate who directed his release. 

The appellant then approached the High Court alleging mala fide and humiliation by the Respondent 2 in collusion with the complainant, and seeking disciplinary action against Respondent 2, compensation and damages to be paid by Respondent 2 personally. Therefore, the High Court, in its judgment ordered the police inspector to pay Rs 2000 to the appellant. Unsatisfied with this judgment the appellant filed an appeal in the Hon’ble Supreme Court. 

ISSUES : Two major issues which arise before the court to decide are : 

1. Whether aggrieved person is entitled to any compensation for humiliation and harassment suffered by him on account of wrong perpetrated by delinquent police officer, in addition to what was awarded by High Court and in addition to adequate amount of compensation, police officer should also be prosecuted and proceeded against departmentally for his wrongful confinement.
2. Whether the trial court was justified in ordering non-bailable warrant against the appellant merely because the appellant failed to appear in the court on 7th August, 2002 in relation to criminal case against him.

LAW INVOLVED : Section 204, 70, 71, 74, and 76 of CrPC ; Article 21 and 22(1) of the Constitution of India and Section 324 of IPC, 1860.

ARGUMENTS ON BEHALF OF THE PETITIONER : The petitioner argued that having regard to the nature of offence alleged against him, the Additional Chief Metropolitan Magistrate erred in law in the first place in issuing non-bailable warrant in a routine manner, without application of mind, merely because the appellant had failed to appear in court on 7th of August, 2002. It was asserted that since neither Section 70 nor 71 of CrPC, 1973  uses the term “non-bailable” a Magistrate is not authorised to issue non-bailable warrant merely because an accused failed to appear in Court. It was also urged by the petitioner that Respondent-2 was guilty of misconduct and the High Court failed to punish him under Sections 342 and 345 of IPC, 1860.

It was argued that the misconduct of the Respondent-2 was so high that he should have been forthwith suspended from his job and ordered to be tried in a competent criminal court. According to the appellant, the direction of the High Court asking Respondent 2 to pay an amount of Rs 2000 by way of costs to the appellant was no justice at all and if a strict action is not taken against such delinquent officers, they will continue to disregard the orders of the court with impunity.

ARGUMENTS ON BEHALF OF THE RESPONDENT : The learned counsel on behalf of the respondent is Mr. Jay Savla, he argued that since the appellant was unable to furnish any document or order to establish that non-bailable warrant issued against him by the court had been cancelled, the police authorities were left with no option and in fact were duty-bound to execute the same. It was also urged that, as per the prevalent practice, whenever any non-bailable warrant is cancelled by the court, either memo or order addressed to the senior Inspector of Police of the police station concerned is issued and forwarded directly to the police station concerned with a direction to return the said warrant to the court, But in the present case no such memo or order in writing had been received at the police station on or before 15th of August, 2002 when it was executed. The learned counsel submitted that the said respondent having performed  his duty bona fide and in good faith, in pursuance of the order issued by the court having jurisdiction, the said respondent had not committed any illegal act warranting any action against him.

It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction in the facts and circumstances of the case it is warranted. The courts have to be extra-cautiousand careful while directing issue of non-bailable warrant else a wrongful detentionwould amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Cardozo, J. puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.”

JUDGMENT : The hon’ble Supreme Court while dismissing this appeal held that, since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, a warrant of arrest cannot be issued mechanically, but only after recording satisfaction, that in the facts and circumstances of the case, it is warranted. The courts have to be extra-cautious and careful while directing issuance of an NBW, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion judiciously, dispassionately and without prejudice. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other.

Referring to Inder Mohan Goswami v. State of Uttaranchal, a bench of three learned judges of this Court cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed : (SCC pp. 17-18 paras 53-55)

“Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: 

• It is reasonable to believe that the person will not voluntarily appear in court; or

• The police authorities are unable to find the person to serve him with a summon; or

• It is considered that the person could harm someone if not placed into custody immediately.”