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.
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.
310.5 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
10BNSS, 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
11committed 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
14accused 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
