Ashraf Beg vs State Of Chhattisgarh on 21 July, 2026

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    Chattisgarh High Court

    Ashraf Beg vs State Of Chhattisgarh on 21 July, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

    Digitally signed by
                                                             1
    MOHAMMED
    AADIL KHAN
    Date: 2026.07.23
    18:02:57 +0530
    
    
    
    
                          CGHC010465112025                                     2026:CGHC:30886-DB
    
                                                                                           NAFR
    
                                      HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                                                    WPCR No. 564 of 2025
    
                          1 - Ashraf Beg S/o Rajjab Beg Aged About 49 Years R/o Ward No. 6,
                          Chhal Road, Gharghoda, Tahsil and P.S. Gharghoda, District Raigarh
                          Chhattisgarh
                                                                                     ... Petitioner
                                                          versus
                          1 - State of Chhattisgarh, Through Secretary Home and Jail
                          Department, Mahanadi Bhawan Atal Nagar, Raipur (C.G.)
    
    
                          2 - Sub Divisional Magistrate Gharghoda, District- Raigarh (C.G.)
    
    
                          3 - Executive Magistrate/ Tahsildar Gharghoda, District- Raigarh (C.G.)
    
    
                          4 - Station House Officer Police Station Gharghoda, District- Raigarh
                          C.G
                                                                                 ... Respondents
    
                                      (Cause-title taken from Case Information System)
    
                          For Petitioner : Mr. Ashutosh Mishra, Advocate.
                          For State       : Mr. S.S. Baghel, Govt. Advocate.
    
                                         Hon'ble Shri Ramesh Sinha, Chief Justice
                                       Hon'ble Shri Ravindra Kumar Agrawal, Judge
                                                      Order on Board
                          Per Ramesh Sinha, C.J.
    

    21-07-2026
    2

    1. Heard Mr. Ashutosh Mishra, learned counsel for the petitioner.

    SPONSORED

    Also heard Mr. S.S. Baghel, learned Govt. Advocate appearing for

    the State-respondents.

    2. The present writ petition has been filed by the petitioner seeking

    the following relief(s):

    “10.1 That, the Hon’ble High Court may kindly be

    pleased call the relevant records pertaining to

    Istgasha No. 63/2025 registered by the

    Executive Magistrate Gharghoda, District –

    Raigarh (C.G.).

    10.2 That, the Hon’ble Court may kindly be pleased

    to direct the respondent authorities to release

    the petitioner from jail immediately.

    10.3 That, the Hon’ble Court may kindly be pleased

    to direct to take suitable action against the

    officers misusing their official position in order

    to harass the petitioner.

    10.4 That, the Hon’ble High Court may kindly be

    pleased to direct the respondent/state to grant

    a sum of rupees 5,00,000/- (Rs. Five Lakh)

    towards compensation to the petitioner for

    suffering harassment and humiliation by him

    due to inaction of respondent authorities.
    3

    10.5 That, the Hon’ble High Court may kindly be

    pleased to grant any other relief(s), which the

    Hon’ble Court deems fit & proper in favour of

    petitioner.”

    3. Learned counsel for the petitioner would submit on a complaint

    made by one Feroz Kashyap and taking cognizance of the

    complaint, the petitioner was called by the police at police station

    Gharghoda where the police pressurized the petitioner to

    compromise with the complainant Feroj Kashyap, when he denied

    the same, the petitioner was arrested with the allegation that he is

    creating nuisance in the police station and by his act there is

    apprehension of breach of peace and to maintain law and order

    situation, one Istgasa under Section 170/126, 135(3) of Bharatiya

    Nagarik Suraksha Sanhita, 2023 (in short ‘BNSS, 2023’) was

    prepared on 25-10-2025 and he was produced before the

    Executive Magistrate, Ghaghoda where he was directed to be

    released on furnishing bail bond of rupees one lakh. The

    petitioner, though furnished bail bond as per the order passed by

    the Executive Magistrate dated 25-10-2025, but instead of

    releasing the petitioner on bail bond, the bail bond furnished by the

    petitioner was sent for its verification to the Revenue Inspector and

    fixed the case for 28-10-2025 and till then the petitioner was sent

    to jail. He would further submit that on 28-10-2025 the presiding

    officer was on leave and the case was fixed for 29-10-2025,

    whereas the other persons have been produced before the
    4

    another Magistrate and they were released after furnishing bail

    bond and sureties. It is also submitted that on 29-10-2025 only the

    petitioner could be released on bail bond. He would also submit

    that there is no cognizable offence registered against the petitioner

    for which he was called to police station that too without any

    written notice and he was intentionally sent to jail by the police

    authorities as well as the State authorities. Despite furnishing the

    bail bond and sureties, the act of the respondents authorities is

    violative of Article 21 of the Constitution of India. He would also

    submit that the petitioner is entitled to get compensation for his

    wrongful detention as the Hon’ble Supreme Court has awarded

    appropriate compensation to the person compelled to face

    humiliation for wrongful detention in violation of Article 21 of the

    Constitution of India. The order dated 25-10-2025 is totally illegal

    and arbitrary. Therefore, the petitioner is entitled for compensation

    for his humiliation and wrongful detention.

    4. Learned counsel for the petitioner would further submit 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 Executive Magistrate without having any case

    diary and in the present case, the petitioner has been arrested in

    connection with Istgasha for the offence under Sections 170/126

    and 135(3) of BNSS. He would further submits that the petitioner

    has not been arrested in connection with any offence under IPC as

    there is no report in Police Station Gharghoda, regarding any
    5

    offence against the complainant Firoj Kashyap. Thus, it is clear

    that no offence has been committed by the present petitioner and

    he was arrested merely on suspicion under Sections 170/126 and

    135(3) of BNSS, 2023 which does not amount an offence, much

    less, a cognizable or non-cognizable offence. 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 Executive Magistrate erred in

    sending the petitioner in jail. He would also submit that Section

    151 of the Cr.P.C. (170 of BNSS, 2023) 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. (170 of BNSS, 2023), there cannot be

    any investigation and consequently Section 167 of the CrPC (187

    of BNSS, 2023) 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
    6

    Section 167(2) of the CrPC [187(2) of BNSS, 2023]. Therefore, the

    arrest and detention of the petitioner are not only bad and illegal,

    but it is against the law and in violation of 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 25-10-2025 to 29-10-2025.

    5. 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 Executive Magistrate and

    the learned Executive 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

    Executive Magistrate. The custody of the petitioner was judicial

    custody and cannot be named or termed as illegal detention. He

    would also submit that against the petitioner as many as 8 criminal

    antecedents are there. 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.

    6. Regarding the criminal antecedents learned counsel for the

    petitioner has submitted that those criminal antecedents are prior

    to year 2020 and are of the nature of trivial offences.
    7

    7. We have heard learned counsel for the parties and perused the

    records of the case.

    8. Section 41 of the Cr.P.C. [Section 35(1) and (2) of BNSS, 2023]

    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-
    a.a who commits, in the presence of a police officer,
    a cognizable offence;

    a.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:-

    a.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;
    a.ii the police officer is satisfied that such arrest is
    necessary-

    9.a to prevent such person from committing any
    further offence; or

    9.b for proper investigation of the offence; or

    9.c to prevent such person from causing the
    evidence of the offence to disappear or
    tampering with such evidence in any manner; or

    9.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

    9.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;
    8

    [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 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.

    9

    [(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.]”

    9 From bare perusal of Section 41 of the CrPC [Section 35(1) and

    (2) of BNSS, 2023], 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.

    10 Further Section 167 of the CrPC (187 of BNSS, 2023) 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 [35(1)(d) of
    10

    BNSS, 2023]. The Magistrate has to be watchful since the power

    to arrest on suspicion under Section 41(1)(d) of the CrPC [35(1)(d)

    of BNSS, 2023] without a warrant is liable to be abused by the

    police.

    11 Section 41 of the CrPC has been dealt at length by the Hon’ble

    Supreme Court in the matter of Arnesh Kumar v. State of Bihar ,

    reported in (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
    11

    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:

    12

    “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
    subsection (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 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
    13

    envisaged under Section 41 Cr.PC has to be complied
    and shall be subject to the same scrutiny by the
    Magistrate as aforesaid.”

    12. 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 vs. State of

    Chhattisgarh, reported in 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. ”
    13 The Hon’ble Supreme Court while emphasizing on dignity in the

    same judgment held in para 36 as under :

    “36. From the aforesaid discussion, there is no
    shadow of doubt that any treatment meted out to an
    14

    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
    , 1978(2) SCC 424.”

    14 The Hon’ble Supreme Court in the matters of Nilabati Behera

    (Smt.) Alias Lalita Behera Vs. State of Orissa and others, 1993

    (2) SCC 746, D.K. Basu V. State of West Bengal, 1997(1) SCC

    416, Sube Singh Vs. State of Haryana and others, 2006(3)

    SCC 178, Hardeep Singh Vs. State of Madhya Pradesh,

    2012(1) SCC 748 and Shreya Singhal Vs. Union of India,

    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.

    15 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
    15

    (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 (478 of BNSS, 2023) treating the case as

    bailable one.

    16 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.

    17 With the aforesaid observations and directions, this writ petition is

    allowed.

                                 Sd/-                                           Sd/-
                   (Ravindra Kumar Agrawal)                          (Ramesh Sinha)
                            Judge                                     Chief Justice
    Aadil
     



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