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On 3.2.2007, Constable Virender Kumar, Head Constable Krishan Singh and Constable Jai Kumar, appellant nos. 2 to 4 respectively while patrolling in the area found that Sanjeev Kumar Singh and Dalip Gupta, respondent nos.3 and 4 respectively were fighting with each other in an intoxicated condition. The said appellants tried to pacify them but in vein. After realising that they were in drunken condition the aforesaid appellants took both the said respondents to the hospital for medical examination wherein they misbehaved with the Doctor and other staff of the hospital. After medical examination, it was opined that both the said respondents had taken alcohol. B. The said respondents were booked under Sections 107/151 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.’) and were produced before the Special Executive Magistrate (hereinafter called `the Magistrate’) on 4.2.2007. The Magistrate issued show

Delhi High Court

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                                                            REPORTABLE

              IN THE SUPREME COURT OF INDIA

         CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO.  1582   OF 2011

          (Arising out of SLP(Crl.) No.1773 of 2008)

Rajender Singh Pathania & Ors.                                       ... 

Appellants

                                      Vs.

State of N.C.T. of Delhi & Ors.                           ...  Respondents

                               With

          CRIMINAL APPEAL NO. 1583   OF 2011

          (Arising out of SLP(Crl.) No.5702 of 2008)

                           J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.    Leave granted in both the matters.

2.    These   appeals  have  been  preferred  against  the   same  judgment 

and order dated 25.2.2008 passed by the High Court of Delhi in Writ 

Petition (Crl.) No.264 of 2007 by which the High Court has quashed 

the criminal case  registered  against  respondent nos. 3 and 4; directed 

Central Bureau of Investigation (hereinafter called `CBI') to investigate 

the   case   in   respect   of   the   allegations   made   by   the   said   respondents 

against   the   appellant   nos.   2   to   4;   and   awarded   a   compensation   of 

Rs.25,000/- each to the said respondents for wrongful confinement.    

3.      FACTS:

A.      On   3.2.2007,   Constable   Virender   Kumar,   Head   Constable 

Krishan   Singh   and   Constable   Jai   Kumar,   appellant   nos.   2   to   4 

respectively   while   patrolling   in   the   area   found   that   Sanjeev Kumar 

Singh   and   Dalip   Gupta,   respondent   nos.3   and   4   respectively   were 

fighting   with   each   other   in   an   intoxicated   condition.       The   said 

appellants   tried   to   pacify   them   but   in   vein.   After   realising   that   they 

were in drunken condition the aforesaid appellants took both the said 

respondents   to   the   hospital   for   medical   examination   wherein   they 

misbehaved   with   the   Doctor   and   other   staff   of   the   hospital.     After 

medical examination, it was opined that  both the said respondents had 

taken alcohol.

B.      The said respondents were booked under Sections 107/151 of the 

Code   of   Criminal Procedure,   1973   (hereinafter   called   `Cr.P.C.')   and 

were   produced   before   the   Special   Executive   Magistrate   (hereinafter 

called   `the   Magistrate')   on   4.2.2007.     The Magistrate   issued   show 

                                                                                         2

cause notice as to why they should not be ordered to execute personal 

bond   of   Rs.5,000/-   each   with   a   surety   in   the   like   amount   for 

maintaining peace for a period of one year. The said respondents could 

not   furnish   the   bonds   and   thus,   the   Magistrate   sent   both   of  them     to 

judicial   custody.     The   said   respondents   furnished   the   bond   of 

Rs.15,000/- each on the next day, i.e., 5.2.2007 and were released.  

C.      The   said   respondents   filed   Criminal   Writ   Petition   No.264   of 

2007 on 19.2.2007 before the High Court of Delhi praying mainly for 

quashing   of   the   proceedings   under   Sections   107/151   Cr.P.C.   and 

further   asked   to   initiate   criminal   proceedings   against   the   appellant 

nos.2 to 4 and award them compensation for illegal detention. The writ 

petition   came   for   hearing   on   26.2.2007.     The   standing   counsel 

appearing for the State took notice on behalf of all the respondents in 

the   writ   petition.   The   High   Court   directed   the   police   authorities   to 

submit the status report. The appellant no.1 after making an inquiry in 

the   case   submitted   the   status   report   on   10.7.2007.   The   petition   was 

heard   on   31.10.2007   and   has   been   allowed   vide   judgment   and   order 

dated 25.2.2008.  Hence, these appeals.  

4.      Shri   P.P.   Malhotra,   learned   Additional   Solicitor   General 

appearing for the State of NCT Delhi and Shri Pradeep Gupta, learned 

                                                                                         3

counsel appearing for the appellants, have submitted that both the said 

respondents had been under the influence of liquor and were fighting 

with each other at a public place, thus, there was danger of breach of 

peace and tranquillity. Appellant nos.2 to 4 tried to pacify them but the 

said respondents did not pay any heed. They had been booked under 

Sections   107/151   Cr.P.C.   and   produced   before   the   Magistrate   on   the 

next   day.   The   Magistrate   after   completing   legal   formalities   directed 

that   they   may   be   released   on   furnishing   the   bonds   to   the   tune   of 

Rs.5,000/- each with a surety in the like amount.  The said respondents 

were   not   in   a   position   to   submit   the   bail   bonds   on   the   said   date   and 

thus,   could   not   be   released   on   4.2.2007.     However,   on   the   next   day, 

they   submitted     the   bail   bonds   voluntarily   for   a   sum   of   Rs.15,000/- 

each, and thus, they were released.  Factual averments made in the writ 

petition were totally false.  

       Appellants   had   not   been   served   personal   notices   and   had   no 

opportunity to defend themselves. The order impugned has been passed 

in   flagrant   violation   of   the   principle   of   natural   justice.   Such   a   petty 

matter   does   not   require   to   be   investigated   by   the   CBI.     Token 

compensation to the tune of Rs.25,000/- has been awarded to each of 

                                                                                             4

the   said   respondents   without   determining   the   factual   controversy. 

Hence, the appeals deserve to be allowed.

5.     On   the   contrary,   the   learned   counsel   appearing   for   the 

respondent  nos.  3 and  4 has  opposed   the appeals   contending that  the 

appellants   had   violated   fundamental   rights   of   the   contesting 

respondents   and   detained   them   in   jail   without   any   justification, 

therefore, the matter is required to be investigated by the CBI or some 

other   independent   investigating   agency.   Token   compensation   has 

rightly been awarded by the High Court. The appeals lack merit and are 

liable to be dismissed. 

6.     We   have   considered   the   rival   submissions   made   by   learned 

counsel for the parties and perused the record.   

7.     In   the   writ   petition,   admittedly,   altogether   there   were   seven 

respondents,   including   the   present   appellants   and  the  Magistrate   who 

had   passed   the   order   under     Sections   107/151   Cr.P.C.   Record   of   the 

case reveals that the matter  was listed for the first time on 26.2.2007 

and   the   learned   standing   counsel   for   the     State   accepted   notice   on 

behalf  of all  the seven   respondents  therein.     Most of the  respondents 

before the writ court had been impleaded by name in personal capacity 

                                                                                    5

making   allegations   of   exceeding   their   powers   and   abusing   their 

positions. There is nothing on record to show that the standing counsel 

had any communication with persons against whom allegations of mala 

fide had been alleged, particularly, appellant nos. 2 to 4 and the learned 

Magistrate,   respondent   no.5   herein.       Thus,   none   of   them   had   an 

opportunity  of  appearing   before  the  High  Court.  We   do  not  find   any 

force   in   the   submission   made   by   learned   counsel   appearing   for   the 

original  writ  petitioners that as the State had been representing all of 

them,   there   was   no   need   to   hear   each   and   every   individual. 

Undoubtedly,   the   judgment   and   order   impugned  in   these   appeals   has 

been passed in flagrant violation of the principles of natural justice and, 

thus, liable to be set aside solely on this ground. 

8.     The status report had been submitted before the High Court after 

having proper  investigation,  stating that the writ  petitioners  had been 

under   the   influence   of   alcohol   and   been   abusing,   threatening   and 

quarrelling each other at the public place.   The police personnel could 

not   control   them.   When   they   were   taken   to   the   hospital   for   medical 

check up they were found intoxicated,  and they misbehaved  with the 

doctor and staff of the hospital also. It had been brought to the notice of 

the   High   Court   that   Sanjeev   Kumar   -   respondent   no.   3,   had   been 

                                                                                     6

threatening  the police officials that his cousin Shri Aushutosh Kumar 

was   a   Metropolitan   Magistrate   in   Tis   Hazari   Courts,   Delhi   and   he 

would teach them a lesson for ever. It was further pointed out that Shri 

Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No. 

9868932336   had   a   talk   with   appellant   no.1-Rajender   Singh   Pathania, 

SHO,   PS   Samaipur   Badli,   at   10.00   P.M.   on   his   mobile   No. 

9810030663 for more than three minutes on 3.2.2007.  The Magistrate 

had   passed   the   release   order   of   the   said   respondents,   however,   they 

could not be released because they failed to furnish the personal bond 

with   a   surety   in   the   like   amount.   The   High   Court   while   passing   the 

order did not consider it proper to have an investigation on the material 

facts   regarding   demand   of   bribe   to   the   tune   of   Rs.500   from   the   writ 

petitioners or regarding the mis-behaviour of the said respondents with 

the   doctor   and   staff   of   the   hospital.     The   medical   report   reveals   that 

they   were  intoxicated.    The   relevant   part  of  the  medical  report  dated 

3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital, 

Jahangirpuri, Delhi reads as under: 

            "Smell of alcohol  ++

             Patient had been irritating and misbehaving with  

            the doctor and staff"

                                                                                          7

9.      No   further   investigation   or   inquiry   had   been   conducted   on   the 

charge of abusing,   threatening   and  quarrelling  by  the writ  petitioners 

with each other.   Though the High Court reached the conclusion that 

the said respondents had been kept behind the bar for one day resulting 

into violation  of their fundamental  rights, without  realising  that since 

they   failed   to   furnish   bonds,   no   other   option   was   available   and   they 

were sent to judicial custody in view of the order of the Magistrate.  If 

the   writ   petitioners   were   aggrieved   of   the   same,   they   could   have 

challenged the same by filing appeal/revision. We failed to understand 

under   what   circumstances   the   writ   petition   has   been   entertained   for 

examining the issue of illegal  detention, particularly, in a case  where 

there was a justification for keeping them in judicial custody.    

10.     The High Court reached the conclusion that in spite of the fact 

that the Magistrate passed the order to furnish the bonds of Rs.5,000/- 

each,   the bonds had been accepted for Rs.15,000/-.   There is nothing 

on record to show that any of writ petitioners had raised the grievance 

before the Magistrate enhancing the amount of personal bonds. In fact, 

the   said   writ   petitioners   themselves   voluntarily   submitted   bonds   for 

Rs.15,000/- and therefore, no illegality could be found on that ground. 

                                                                                       8

11.     The   judgment  and   order   impugned   herein   shocked   our   judicial 

conscience   as   under   what   circumstances   such   a   petty   incident   was 

considered by the High Court to be a fit case to be referred to the CBI 

for investigation.

12.     This very Bench recently in Disha v. State of Gujarat & Ors., 

JT   (2011)   7   SC   548,   while   relying   upon     earlier   judgments   of   this 

Court in Ashok Kumar Todi v. Kishwar Jahan & Ors., JT (2011) 3 

SC 50;   and  Narmada Bai v. State of Gujarat,  JT (2011) 4 SC 279, 

came   to   the   conclusion   that   for   directing   the   CBI   to   hold   the 

investigation   the   court   must   be   satisfied   that   the   opposite   parties   are 

very powerful and influential persons or the State authorities like top 

police   officials   are   involved   and   the   investigation   has   not   proceeded 

with in proper direction or it has been biased. In such an eventuality, in 

order  to do complete justice  a direction  to the CBI to investigate  the 

case can be issued. 

13.     In the instant case, the grievance of the writ petitioners basically 

had been against the two Constables and one Head Constable. It was 

not   a   case   where   it   could   be   held   that   the   State   authorities   were 

                                                                                        9

interested or involved in the incident.  Thus, in our opinion, it was not a 

fit case where investigation could be handed over to the CBI. 

                It is not only in the instant case  that the High Court has 

directed CBI to investigate but it is evident from the other connected 

cases  which have  been  heard  along with  these   appeals  and  are being 

disposed of by separate order, that on the same day i.e. 25.2.2008 the 

same Hon'ble Judge directed CBI enquiry in another paltry case under 

Sections   107/151   Cr.P.C.     Further   on   28.2.2008   CBI   enquiry   was 

directed in another case also under Sections 107/151 Cr.P.C..  Thus, it 

is   evident   that   the   High   Court   has   been   passing   such   directions   in   a 

most   casual   and   cavalier   manner   considering   that   each   and   every 

investigation must be carried out by some special investigating agency.

14.      The   object   of   the   Sections   107/151   Cr.P.C.   are   of   preventive 

justice and not punitive. S.151 should only be invoked when there is 

imminent   danger   to   peace   or   likelihood   of   breach   of   peace   under 

Section 107 Cr.P.C. An arrest under S.151 can be supported when  the 

person   to   be   arrested   designs   to   commit   a   cognizable   offence.     If   a 

proceeding under Sections 107/151 appears to be absolutely necessary 

to   deal   with   the   threatened   apprehension   of   breach   of   peace,   it   is 

                                                                                         1

incumbent   upon   the   authority   concerned   to   take   prompt   action.   The 

jurisdiction   vested    in  a  Magistrate  to  act  under  Section  107  is   to  be 

exercised in emergent situation.

15.   A mere perusal of Section  151 of the Code of Criminal Procedure 

makes   it   clear   that   the   conditions   under   which   a   police   officer   may 

arrest   a   person   without   an   order   from   a   Magistrate   and   without   a 

warrant have been laid down in Section 151. He can do so only if he has 

come   to   know   of   a   design   of   the   person   concerned   to   commit   any 

cognizable offence. A further condition for the exercise of such power, 

which must also be fulfilled, is that the arrest should be made only if it 

appears   to   the   police   officer   concerned   that   the   commission   of   the 

offence   cannot   be   otherwise   prevented.   The   Section,   therefore, 

expressly   lays   down   the   requirements   for   exercise   of   the   power   to 

arrest without an order from a Magistrate and without warrant. If these 

conditions are not fulfilled and, a person is arrested under Section  151 

Cr.P.C., the arresting authority may  be exposed to proceedings under 

the law for violating the fundamental rights inherent in Articles 21 and 

22 of Constitution.  (Vide:  Ahmed Noormohmed  Bhatti    v.  State of 

Gujarat and Ors., AIR 2005 SC 2115).

                                                                                      1

  (See   also:  Joginder   Kumar  v.  State   of   U.P.   and   Ors.,  AIR   1994   SC 

1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610).

16.     In   the   instant   case   the   proceedings   under   Sections   107/151 

Cr.P.C. were initiated on 4.2.2007 and the High Court has quashed the 

proceedings.     At   such   a   belated   stage,   correctness   of   the   decision   to 

that   extent   does   not   require   consideration.   Even   otherwise   the   issue 

regarding   quashing   of  those   proceedings   at   this   stage   remains   purely 

academic. So, we uphold the impugned judgment to that extent. 

17.     The   issue   of   award   of   compensation   in   case   of   violation   of 

fundamental rights of a person has been considered by this Court time 

and again and it has consistently been held that though the High Courts 

and this Court in exercise of their jurisdictions under Articles 226 and 

32   can   award   compensation   for   such   violations   but   such   a   power 

should   not   be   lightly   exercised.     These   Articles   cannot   be   used   as   a 

substitute for the enforcement of rights and obligations which could be 

enforced efficaciously through the ordinary process of courts.   Before 

awarding   any   compensation   there   must   be   a   proper   enquiry   on   the 

question of facts alleged in the complaint.  The court may examine the 

report   and   determine   the   issue   after   giving   opportunity   of   filing 

                                                                                        1

objections to rebut the same and hearing to the other side.  Awarding of 

compensation   is   permissible   in   case   the   court   reaches   the   same 

conclusion on a re-appreciation of the evidence adduced at the enquiry. 

Award of monetary compensation in such an eventuality is permissible 

"when   that   is   the   only   practicable   mode   of   redress   available   for   the 

contravention   made   by   the   State   or   its   servants   in   the   purported 

exercise of their powers."

(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026; 

Bhim Singh, MLA v. State of J&K & Ors., AIR 1986 SC 494; Smt. 

Nilabati Behera v. State of Orissa & Ors., AIR 1993 SC 1960; D.K. 

Basu v. State of W.B.,AIR 1997 SC 610; Chairman, Railway Board 

&   Ors.  v.   Mrs.  Chandrima   Das   &   Ors.,   AIR   2000   SC   988;   and 

S.P.S. Rathore v. State of Haryana & Ors., (2005) 10 SCC 1).

18.     In Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117, 

while dealing  with similar issue this Court held as under:

            "In   cases   where   custodial   death   or   custodial  

            torture or other violation of the rights guaranteed  

            under   Article   21   is   established,   the   courts   may  

            award compensation in a proceeding under Article  

            32   or   226.   However,   before   awarding  

            compensation, the Court will have to pose to itself  

            the following questions: (a) whether  the violation  

            of   Article   21   is   patent   and   incontrovertible,   (b)  

            whether the violation is gross and of a magnitude  

            to  shock   the   conscience   of  the   court,   (c)  whether  

            the   custodial   torture   alleged   has   resulted   in  

            death.....   Where   there   are   clear   indications   that  

            the allegations are false or exaggerated fully or in  

            part, the courts may not award compensation as a  

                                                                                       1

                public   law   remedy   under   Article   32   or   226,   but  

                relegate   the   aggrieved   party   to   the   traditional  

                remedies   by   way   of   appropriate   civil/criminal  

                action."

(See also:  Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR 

2005   SC   402;   and  Bharat   Amratlal   Kothari   v.   Dosukhan 

Samadkhan Sindhi & Ors., AIR 2010 SC 475).

19.          In view of the above, we are of the considered opinion that the 

High Court erred in awarding even token compensation to the tune of 

Rs.25,000/-   each   as   the   High   Court   did   not   hold   any   enquiry   and 

passed the order merely after considering the status report submitted by 

the   appellant   no.1   without   hearing   any   of   the   persons   against   whom 

allegations of abuse of power had been made.   Such an order is liable 

to be set aside. 

20.          In   view   of   the   above,   appeals   succeed   and   are   allowed. 

Judgment and order impugned herein is set aside except to the extent 

that   the   proceedings   under   Sections   107/151   Cr.P.C.   against   the 

contesting respondents stood quashed. 

                                                               ...............................

       J.                                                      (P. SATHASIVAM)

                                                            ...............................J.

 New Delhi,                                                    (Dr. B.S. CHAUHAN)

 August 12, 2011                                                                                     1

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