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Karnataka High Court
Palecanda Ponnappa @ Vishal vs The State Of Karnataka on 15 July, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.06.2026
Pronounced on : 15.07.2026
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7712 OF 2026
BETWEEN:
PALECANDA PONNAPPA @ VISHAL
S/O LATE SRI P.M.AIYANNA,
AGED ABOUT 55 YEARS,
RESIDING AT FAITH CINCHONA ESTATE, KUTTA,
KODAGU DISTRICT,
KARNATAKA - 571 250.
... PETITIONER
(BY SRI ANGAD KAMATH, ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K 1 . THE STATE OF KARNATAKA
Location: High KUTTA PS KODAGU
Court of Karnataka REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . XXXXXX
XXXXXX
XXXXXX
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BNSS, 2023, PRAYING TO i). QUASH IMPUGNED FIR BEARING
CRIME NO.34/2026 DATED 18.04.2026 REGISTERED AT KUTTA
POLICE STATION, KODAGU DISTRICT PENDING BEFORE THE FILE
OF DISTRICT AND SESSIONS JUDGE KODAGU IN SO FAR AS THE
SAME RELATES TO THE PETITIONER (PALECANDA PONNAPPA @
VISHAL ACCUSED NO.2; ii). ISSUE A DIRECTION IN THE NATURE
OF DECLARATION DECLARING THAT THE ARREST OF THE
PETITIONER ON 19.04.2026 IN CRIME NO.34/2026 OF KUTTA
POLICE STATION AND THE CONSEQUENTIAL DEPRIVATION OF THE
PETITIONER PERSONAL LIBERTY BY WAY OF DETENTION IN
JUDICIAL CUSTODY FROM 19.04.2026 UNTILL HIS RELEASE ON
BAIL ON 02.05.2026 WERE BOTH ILLEGAL, UNCONSTITUTIONAL
AND IN VIOLATION OF THE PETITIONER FUNDAMENTAL RIGHTS
UNDER ARTICLES 14, 21, 22 OF THE CONSTITUTION OF INDIA; iii).
ISSUE A DIRECTION TO RESPONDENT NO.1 (STATE OF
KARNATAKA) TO PAY THE PETITIONER REASONABLE
COMPENSATION IN A SUM OF NOT LESS THAN RS.15,00,000/- OR
SUCH OTHER SUM AS THIS HON'BLE COURT MAY DEEM FIT FOR
THE VIOLATION OF HIS FUNDAMENTAL RIGHTS UNDER ARTICLES
14, 21 AND 22 OF THE CONSTITUTION OF INDIA, AND AS
RESTITUTION FOR THE LOSS OF LIBERTY, DIGNITY, REPUTATION
AND BUSINESS LOSSES OCCASIONED TO THE PETITIONER BY
REASON OF THE ILLEGAL ARREST, THE UNLAWFUL DETENTION IN
JUDICIAL CUSTODY FOR FOURTEEN DAYS FROM 19.04.2026 TO
02.05.2026 AND THE ONGOING PENDENCY OF THE IMPUGNED
FIR;iv). ISSUE A DIRECTION TO THE DIRECTOR GENERAL OF
POLICE, KARNATAKA SEEKING A ENQUIRY TO BE CONDUCTED BY
AN OFFICER NOT BELOW THE RANK OF INSPECTOR GENERAL OF
POLICE, INTO THE CONDUCT OF THE INVESTIGATING OFFICER
AND ALL OTHER OFFICER CONNECTED WITH THE REGISTRATION
OF THE IMPUGNED FIR, THE ARREST OF THE PETITIONER, THE
PREPARATION OF THE REMAND APPLICATION DATED 19.04.2026
AND INSERTION OF SEC.3(5) OF BNS INTO THE CASE FILE; (b)
TAKE SUCH DISCIPLINARY ACTION AGAINST THE OFFICERS
FOUND RESPONSIBLE AS MAY BE WARRANTED ON THE FINDINGS
OF THE ENQUIRY; AND (c) PLACE A REPORT ON THE ACTION
TAKEN BEFORE THIS HON'BLE COURT WITHIN SUCH TIME AS MAY
BE FIXED; v). ISSUE A DIRECTION TO THE ALL CONCERNED
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AUTHORITIES TO FORTH WITH EXPUNGE THE PETITIONER's NAME,
PHOTOGRAPH, FINGERPRINTS, BIOMETRIC DATA, AND ALL
REFERENCES TO THE PETITIONER FROM (a) THE CRIME AND
CRIMINAL TRACKING NETWORK AND SYSTEMS (CCTNs)
DATABASE; (b) THE NATIONAL AUTOMATED FINGERPRINT
IDENTIFICATION SYSTEM (NAFIS); (c) THE POLICE RECORDS OF
KUTTA POLICE STATION, SRIMANGALA POLICE STATION THE
OFFICE OF THE SUPERINTENDENT OF POLICE, KODAGU AND THE
OFFICE OF THE DIRECTOR GENERAL OF POLICE, KARNATAKA;(d)
ANY INTER-STATE OR INTER-AGENCY CRIMINAL RECORDS
DATABASE IN WHICH THE PETITIONER'S DETAILS MAY HAVE BEEN
ENTERED; AND TO CERTIFY TO THIS HON'BLE COURT THE
COMPLETION OF SUCH EXPUNGEMENT WITHIN A STIPULATED
PERIOD.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.06.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.2 is at the doors of this Court
seeking the following prayers:
"(i) Quash impugned First Information Report bearing Crime
No.0034 of 2026 dated 18-04-2026 registered at Kutta
Police Station, Kodagu District pending before the file of
District and Sessions Judge, Kodagu insofar as the same
relates to the petitioner (PalecandaPonnappa @ Vishal -
accused No.2).
(ii) Issue a direction in the nature of declaration declaring
that the arrest of the petitioner on 19-04-2026 in Crime
No.0034 of 2026 of Kutta Police Station and the
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consequential deprivation of the petitioner's personnel
liberty by way of detention in judicial custody from
19-04-2026 until his release on bail on 02-05-2026 were
both illegal, unconstitutional and in violation of the
petitioner's fundamental rights under Articles 14, 21 and
22 of the Constitution of India.
(iii) Issue a direction to Respondent No.1 (State of Karnataka)
to pay to the petitioner reasonable compensation in a
sum of not less than ₹15,00,000/- (Rupees fifteen lakhs
only) or such other sum as this Hon'ble Court may deem
fit for the violation of his fundamental rights under
Articles 14, 21 and 22 of the Constitution of India, and as
restitution of the loss of liberty, dignity, reputation, and
business losses occasioned to the Petitioner by reason of
the illegal arrest, the unlawful detention in judicial
custody for fourteen days from 19-04-2026 to 02-05-
2026 and the ongoing pendency of the impugned FIR.
(iv) Issue a direction to the Director General of Police,
Karnataka, seeking a enquiry to be conducted, by an
officer not below the rank of Inspector General of Police,
into the conduct of the Investigating Officer and all other
officers connected with the registration of the impugned
FIR, the arrest of the Petitioner, the preparation of the
remand application dated 19.04.2026, and insertion of
Section 3(5) BNS into the case file; (b) take such
disciplinary action against the officers found responsible
as may be warranted on the findings of the enquiry; and
(c) place a report on the action taken before this Hon'ble
Court within such time as may be fixed; and
(v) Issue a direction to all the concerned authorities to
forthwith expunge the Petitioner's name, photograph,
fingerprints, biometric data, and all references to the
Petitioner from (a) the Crime and Criminal Tracking Net
work and Systems (CCTNS) database; (b) the National
Automated Fingerprint Identification System (NAFIS); (c)
the police records of Kutta Police Station, Srimangala
Police Station, the Office of the Superintendent of Police,
Kodagu and the offices of the Director General of Police,
Karnataka; (d) any inter-state or inter-agency criminal
records database in which the Petitioner's details may
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have been entered; and to certify to this Hon'ble Court
the completion of such expungement within a stipulated
period.
(vi) Pass such other and further orders as this Hon'ble Court
may deem fit and proper in the facts and circumstances
of the case and in the interest of justice."
2. Heard Sri Angad Kamath, learned counsel appearing for
the petitioner and Sri B.N. Jagadeesha, learned Additional State
Public Prosecutor appearing for respondent No.1. The complainant,
a citizen of United States of America ('USA' for short) has stayed
back in USA and as such, is not served. Therefore, the petitioner
and the 1st respondent/State are heard.
3. Sans details, facts necessary are as follows: -
3.1. The petitioner is the principal operator and managing
person of Devi Villa Homestay situated at Faith Cinchona Estate,
Kutta, Kodagu District. The Homestay is said to be registered with
the Department of Tourism, Government of Karnataka under the
Karnataka Tourism Trade (Facilitation and Regulation) Act, 2015
(hereinafter referred to as 'the Act' for short). The Homestay is said
to be operating within the Faith Cinchona Estate which has coffee
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plantation of over sixty years' standing. The villa and the said
premises built in a traditional Kodava architectural style is ranked
one of the most sought after and highly rated Homestays in all the
reviews across multiple international and domestic platforms. It is a
family enterprise of the petitioner, his wife and the mother.
3.2. The genesis of the issue is, the complainant, a citizen of
USA holding a five-year Indian Tourist Visa valid from 14-08-2024
to 13-08-2029 arrives in India on 19-03-2026 for a tourist visit.
She stays in Bengaluru between 22-03-2026 and 24-03-2026,
makes her first visit to Devi Villa Homestay run by the petitioner
along with her co-worker and a personal friend referred to as
Stenita in the complaint. The first visit was booked through Stenita;
payment was made through Bank. No grievance arose in the first
visit. On 06-04-2026, the complainant on her own initiative, wrote
to the petitioner on whatsapp introducing herself as Stenita's sister
describing her first stay as the most unimaginable experience that
had completely changed her life and for that she had cancelled her
flight back to USA and was asking whether she could return. On
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07-04-2026 the conversation went on to ask that she was supposed
to head back to USA and could not be happier to have cancelled the
flight. On 08-04-2026 the petitioner offered two booking windows.
The complainant chose 12th to 18th April, 2026. On 09-04-2026 the
complainant herself selects Garden View tent. She books her own
cab, comes on her own through a Savari app and she was advised
to send a photograph of the driver in front of the registered vehicle
before departure.
3.3. The complainant arrives at Devi Villa at 1-00 p.m. on
12-04-2026. The petitioner was not personally present at that time.
The petitioner's mother receives the complainant, allots a Garden
View tent. The allegation in the complaint springs that accused No.1
enters the tent at about 1.30 p.m. serves her welcome juice
(guava) and after drinking she becomes drowsy and accused No.1
is alleged to have committed sexual offence in the tent between
1.30 p.m. and 3-00 p.m. The petitioner, on the complainant's own
account, was not at the place at the time of alleged offence and did
not know of the overt act. On the morning of 13-04-2026 the
complainant's father in USA is said to have communicated a mail
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expressing concern about her trip and about abrupt discontinuation
of antidepressant medication. Long thereafter, a complaint comes
to be registered on 18-04-2026.
3.4. The registration of complaint led to arrest of the
petitioner; ostensibly he could not be arrested under Section 64(1)
of the Bharatiya Nyaya Sanhita, 2023 ('BNS') which is the offence
of rape nor under Sections 238 or 239 which deal with causing
disappearance of evidence or omission to give information of
offence by a person bound to inform. But, with the permission of
the Magistrate, offence under Section 3(5) of the BNS is added.
Neither offence under Sections 201 and 202 of IPC which are
Sections 238 and 239 of BNS nor Section 3(5) of BNS are
cognizable offences. But, the petitioner is taken into custody and
later enlarged on bail. The petitioner has now preferred the subject
petition seeking quashment of crime and declaration that arrest of
the petitioner is contrary to law and has sought compensation of
₹15,00,000/- for the illegal arrest.
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SUBMISSIONS:
PETITIONER:
4. The learned counsel Sri Angad Kamath appearing for the
petitioner would contend that the power to arrest is available to the
State only in respect of offences classified as cognizable appended
to the BNSS. The classification of a cognizable offence in the
Schedule has two-fold implications viz., it enables the Police to
register a FIR and investigate such offence without the permission
of the Magistrate and enables it to make an arrest if justified and
necessary. He would submit that there was no offence against the
petitioner that could lead to his arrest. An offence under Section
3(5) of the BNS is added for the first time in the remand application
and the petitioner is taken into custody. The remand order indicates
basis of the allegation, as the Police have added Sections 238 and
239 and 3(5) of the BNS against the petitioner. The attribution in
the complaint is regarding two accused persons and the power to
arrest was available against accused No.1 who is alleged to have
committed a cognizable offence and not against the petitioner. He
would contend that not only the proceedings against the petitioner
be quashed, but the arrest should be held to be illegal. He would
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emphasize merely because a citizen of USA is the subject of crime
and the consulate has requested action to be taken, the
fundamental rights of the petitioner cannot be given a go-bye.
STATE PUBLIC PROSECUTOR:
5. Per contra, the learned Additional State Public Prosecutor
would place the original file for perusal of the Court and would
contend that accused Nos.1 and 2 are alleged of common intention
under Section 3(5) of the BNS. Therefore, the arrest of the
petitioner was necessary to unearth what happened in the
homestay at the relevant point in time. He would contend that the
petitioner is now out on bail and, therefore, the question with
regard to his illegal arrest need not be gone into. He would submit
that it is a matter of investigation for the petitioner to participate
and if nothing is found against the petitioner it would undoubtedly
lead to filing of a 'B' report against the petitioner, since the offence
involves alleged rape of the citizen of USA. The petitioner must not
be shown any indulgence at this juncture. He would seek dismissal
of the petition.
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6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. In furtherance whereof, the following issues
would arise for consideration:
(i) Whether the crime so registered against the petitioner
warrants interference?
(ii) Whether the arrest of the petitioner was illegal?
(iii) Whether the petitioner is entitled for compensation in
the event his arrest would be held illegal?
CONSIDERATION:
ISSUE NO.1:
"Whether the crime so registered against the petitioner
warrants interference?"
7. The afore-narrated facts that led to registration of crime
are all narrated in detail hereinabove. They would not require any
iteration. The reason for dragging the petitioner into the web of
proceedings is a complaint so registered against him and other
accused for the offences punishable under Sections 64, 238 and
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239 of the BNS. In the light of the fulcrum of the entire issue
getting triggered from registration of the complaint, I deem it
appropriate to notice gist of the complaint. The gist of the complaint
as found in column No.10 of the FIR reads as follows:
"On 18.04.2026 from 12:00 pm to 1:30 pm statement of victim
"A"(name changed) recorded at Dr.Mahesh Rao house of CLV of
US consulate, #861, 14th main road vijayanagar, mysore -
570017 I am a citizen of the USA, Passport holding no. #
A30928952 (United State of America). I am working as a
Administrative Assistant for Meijer, based out of grand rapids
Michigan, USA from the past two years.
I came to Bangalore, India on 19/03/2026 on a tourist visa valid
from August 14, 2024 to 13 August 2029 in order to explore
tourist places of India, for vacation and to see Indian friends
and families. During the vacation I stayed in Bangalore Casa
Cottage from 19/03/2026 to 22/03/2026 and also Devi Villa
Coorg from 22/03/2026 to 24/03/2026 which I booked through
AIRBNB application. I came to know about the home stay
through stenitawho is my friend. she knows about the home
stay and the owners. stenita is my co-worker from past 2 years,
we stayed for about 2 days at the Devi Villa Home stay from
22/03/2026 to 24/03/2026. At the time when we were checking
in the home stay, Vishal welcomed us and took details of us. I
stayed in Devi Villa home stay for 3 days and then I went back
to Stenita house and stayed till 12/04/2026 and then went back
to Bangalore stayed at Casa Cottage, Bangalore.
On same day I left Bangalore towards Devi Villa home stay
through taxi savari vehicle no. KA53D2506 and taxi arrived Devi
villa home stay at 01:00 PM on same day, during this time
nobody received us at home stay. But Grandmother (Vishal's
Mother) was present and allotted a lent house to me.
Grandmother (Vishal's mother) name was anitha and her age is
about 80 to 90 year old. Afterwards I entered the tent all my
luggage was already kept by house keeper's inside the tent.
Because of tiredness I took off my cloths wrapped in the sheet
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and I was lying on the bed, stomach down. About 1:30pm
house keeper entered into my tent and taps me on my left
shoulder and offered me a welcome juice(guava). after I drank
the juice, house keeper left the tent, then I was kind of sleepy
and drowsy. When I woke up the same man was above me and
Raped me, at the time I was not able to move, he ejaculated
over my back and he cleaned himself and also my back during
that time. I was conscious but could not resist or move my
body. due to drowsiness but I could see and feel everything.
This incident happened between 1:00 pm to 3:00 pm. I know
that person from previous stay he was wearing green shirt
which is uniform of the home stay and around 40 to 45 years
old, Stout build, baldness in front and may be 5.5 to 5.7 height
and I don't know his full name but his name starts with letter V,
but I think he is called as Vrijesh. After the incident I finally I
could get up and went to swimming Pool area. during that time
grandmother (Vishal's Mother) was around the pool and Couldn't
connect to the Wifi. around 4:00PM to 5:00PM, When I was in
the pool the same man gave me the Candy bar and I told him to
get away from me. I did not eat but broke it down Kept it aside.
During that time owner of the home stay Vishal came and gave
me the Wifi password but I did not disclose anything to the
owner at that time. Once I was out of the pool hung around
property and sat by the pool texted Collins my good friend who
is my colleague in the USA, I didn't call him because of time
difference.
At around 9:50pm I called my friend Collins in USA(+1-610-
848-0930) Spoke for 16 minutes and again spoke for 8 minutes
and walked back to the tent. My friend Collins suggested to
inform the family about the incident. Around that time same
man walked into my tent gave me my own vitamin C. Then I
Scream at around 10:09 pm to 10:19 pm Ran into the main
house where I was asked the owner Vishal, I wanted a safe
place with a lock and not a tent. Vishal finally allowed me stay
in the main house.
On next day Sunday Collins advised me from the USA to consult
doctor and He sent details of how to get help. Collins is my
friend who is in the USA, He contacted the US Consulate as well
as Stenita Lewis but Stenita didn't help at all. Stenita sent me a
text message about the rape and I was not able to connect
properly with US Consulate. Home stay owner were not allowing
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me to even make calls and I was connected through text mode
only. I was very afraid and helpless.
On 14/04/2026 the US Consulate connected with me and Mister
Carlton who is the ACS in Chennai who was helping out and he
was constant touch with me. Since Home stay members were
forced me to stay till Thursday that is from Sunday to Thursday,
They were told me not to inform to the Police, not to consult the
Doctor and not allowing me talk to anybody except texting.
Then on Thursday I left the place with the taxi driver name
Sujith in the vehicle number KA12C4978 and Vishal arranged
the above taxi. I left that place around 9 am and came to the
Mysore by noon. Before leaving the home stay I have collected
some of the evidence such as sheet which was on bed, head
band and tissue papers from the tent and brought it along with
me to the Mysore.
I got help from ACS, Carlton who got me in touch with Dr
Mahesh Rao(+91-98454-22755) who is the CLV for USA citizens
he and His wife have been very helpful. As of now I am eager to
fly back to the USA and as I need to work and I need immediate
medical check-up locally in private hospital like kamakshi or
others to ensure my health is safe. Presently I am staying in
hotel Le Ruchi in Mysore, I am giving this statement at the
house of CLV of USA consulate, Dr Mahesh Rao suggested by
USA consulate #861, 14th main road Vijayanagar, Mysore
570017. I have given this statement in front of the Mufti police
officer with my interest at around 12:00 PM to 1:30 PM on
18/04/2026 at the above-mentioned address."
The allegation is that the complainant comes to Devi Villa through
taxi Savari which she only booked. At that time, nobody received
her at the homestay, but the mother of the petitioner aged about
90 years old was present. Later came the petitioner to enquire
about the petitioner. By drinking a particular juice brought by the
housekeeper, it appears, she felt drowsy and the housekeeper left
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the tent. When she woke up, the same man who served the juice
came back and raped her. He is said to have ejaculated over her
back; he cleaned himself and went away. She was conscious and
could not resist the rape or move the body due to drowsiness. The
incident is said to have happened between 1-00 p.m. and 3-00 p.m.
Other explanation found in the complaint is that once she become
alright, she gets out of the pool, hangs around the property and
walks back to the tent and later informs her friend in USA. The
owners of the property were not immediately at home.
8. The owners of the property after they were informed have
taken all steps that is legally necessary to be done. Certain
whatsapp chats giving all encomiums to the Villa is appended to the
petition including the picture of the travel and the car in which she
comes to the Villa. On 19-04-2026 a communication is made
between the petitioner and the father of the complainant. It
becomes germane to notice the same. It reads as follows:
"To "Aparna Ponnappa"<[email protected]>
Stenita Lewis
----- Forwarded message -----
16
From: Karen Brown <[email protected]>
Date: Tue, 14 Apr, 2026, 01:16
Subject: Re: Mom & Dad Checkin.
To: xxxxxxx<[email protected]>
Cc: Colin Osborne <[email protected]>, Stenita Lewis
<[email protected]>, <[email protected]>,
Michele Varner <[email protected]>,
xxxxx<[email protected]>
You handled this very well. God is so good!
Love you lots.
On Mon, Apr 13, 2026, 9:54 AM xxxxx<[email protected]>
wrote: He sent me this email 16 minutes ago, after a series of
numerous texts and one phone call yesterday afternoon into the
evening causing me so much anxiety, stress and despair. Was
truly concerned that there was a war going on in the US, or that
Johnstown had been bombed. I truly cannot understand why he
is continuing to send me these things. I have no desire to
continue any correspondence with him. Note how he is so close
minded, if he is so concerned, why not come to India for
yourself to see what it's all about? I'm not paying for a flight to
Johnstown because that place makes me miserable. Why would
I continue to put myself through hurt like that when there truly
is another way to live?
Dad/Mom, I would really love it if you could please provide me
with an honest update on Hailey's health. I feel you are using
scare tactics as a way to get me to do what you want (come
back to the US). I am more content than ever before.
Also, for those you mention that are reaching out and you're
fielding calls, etc. - I'm calling bullshit on that. You still have yet
to provide me with a single name of someone that has reached
out with concern. Actually, you have REFUSED multiple times to
tell me who these individuals are. If they're so concerned,
please have them reach out to me directly, as you truly do not
know the very first thing about your own daughter. Yes. This
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hurts me so much to say this, but this is God's honest truth and
you KNOW it in your heart and soul you really don't accept me,
never have, and never will.
Additionally, for context to all on this email - I began this as just
a forward to Colin, Stenita and Karen. Some of my closest and
truest people who I wholeheartedly love, and who know and
understand me in ways you do not. I started the email with
my.....
I'm working my job right now, my work understands me and
they are extremely happy for me and have blessed me to much
by letting me stay here longer, AND that I'm ALLOWED to work.
I don't even HAVE to work, but they are letting me and it's
wonderful I'm able to make my American living here at least for
a few weeks longer.
Why is it you want me to come back to the US so urgently when
I am learning and experiencing first hand that miracles really do
happen, God really does exist, and I am finally for the first time
in my life, feel healthier than I ever have? No constant body
pain, I have no want/thought/desire for abusive/addictive
substances. My bowel movements are aligned. I am so much
physically closer to God/Heaven.
The unenlightened xxxxx would have continued to put up with
this trend of trauma and abuse. I am finally taking a stand and
being who I truly am for the first time in my life.
Why are you pushing so hard for me to go back onto
antidepressants?
Why are you being so close minded to what I'm experiencing
with no want to even understand what I'm talking about.
I honestly thought the drive back from Johnstown to Michigan
would have been nice and given us time to talk and understand
each other more. I clearly was wrong and I am so sad for that
xxxxx who tried and tried and tried even after these years of
mental torment and torture you cast upon me. No father should
ever make her daughter feel such way. I am learning about life,
living, honesty, truth, respect, everything it takes to be a Good
human being.
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I was intensely hurt that you have been so closed off to this
entire wonderful thing that's happening to me. I have been SAD
for you and have been praying for you that you are able to find
peace and take some comfort. Please stop worrying about me...
there is truly no need.
It's 9:44 am ET; 7:14 pm IST, about to get some more solid
work done for my meijer job, because they are good to me,
treat me with respect and encourage me to be my authentic self
by letting me stay on vacation longer and get paid while doing
so.
Enough for now
Namaste
xxxxxxx
------Forwarded message ------
From: <[email protected]>
Date: Mon, Apr 13, 2026 at 9:12AM
Subject: Mom & Dad Checkin.
To: xxxxx<[email protected]>
Cc: <[email protected]>, <[email protected]>
xxxxxxx,
The urgency to connect with you is because we are very
concerned about you and want you to come home soon safely.
Your trip has taken a toll on us..... your Mom is running back
and forth to Haileys weekly, caring for...
this constant worry about you is wearing on her and me. And
then she has to field calls from friends that are seeing your
posts and are also very concerned. You are ½ way around the
world without anyone else we know and in the middle of
nowhere.... Why wouldn't we as loving Parents naturally be very
worried about you - we don't understand why you cannot grasp
that. Also, the issue with antidepressant Meds amplifies this
19
whole concern - I know more than you might believe about this
subject and have known many people that stop them like you
did and end up in a world of "hurt" with extreme mood swings.
Please consider going back to a smaller dose maybe .05 or
10mg of Lex if your experiencing negative thoughts. As far as
me dismissing you that couldn't be further from the truth. I/We
always want you to come home as often as you can especially
Mother's Day. The only thing I had to think about was your (off
the cuff remark) about me driving you back to Michigan. If you
are tight on funds I'll be happy to pay for your plane ticket to
Johnstown. xxxx, please remain safe and healthy and come
home soon - there are a lot of people that deeply Love You and
are concerned about you. You can tell us all day long that things
are fine, but we want you back safely and worry about you
24/7.
Thanks
Please confirm receipt of this message!
Bob Varner (Broker of Record)
V.P. Real Estate & Brokerage
814.418.4495 (Cell Text)
[email protected]
www.pennswoodcommercial.com
Pennswood Commercial Realty LLC.
116 Union Ave.
Altoona Pa. 16602
814.942.6300 (0)
814.942.3903 (F)"
20
9. Crime comes to be registered on 18-04-2026, the
gravamen of the complaint has already been extracted
hereinabove. The communications between them is also extracted
hereinabove. In the light of the said allegations, the crime must be
permitted to be investigated into. There is no warrant of
interference with the investigation. The issue is answered
accordingly.
ISSUE NO.2:
"Whether the arrest of the petitioner was illegal?"
10. To consider this issue of whether the arrest of the
petitioner was warranted at all in the case at hand, it becomes
imperative to notice the offences that are alleged against the
petitioner. The foremost among them is, Section 64(1) of the BNS,
which deals with the offence of rape - a grave and cognizable
offence. Yet, the invocation of the said provision against the
petitioner appears, prima facie, wholly incongruous, for the
petitioner was admittedly nowhere present at the scene of the
21
alleged occurrence and is not attributed with any overt act
constituting the offence.
10.1. The remaining offences alleged are under Sections 238,
239 and 351 of the BNS, all of which are non-cognizable in nature.
Notwithstanding the unmistakable character of these offences as
non-cognizable, the petitioner was picked up by the police on the
evening of 18-04-2026, detained through the night, and formally
arrested at 5:00 a.m. on 19-04-2026. Thereafter, he was produced
before the learned Magistrate only at 11:30 p.m. on the following
day for the purpose of remand.
11. What compounds the infirmity is, the remand application
itself, wherein the Police sought to invoke Section 3(5) of the BNS,
a provision embodying the principle of common intention, as the
fulcrum for seeking remand. The ostensible justification for the
arrest was that the petitioner was required for custodial
interrogation. It is precisely here that the illegality attending
the arrest begins to manifest with stark clarity.
22
12. The offences initially alleged against the petitioner were
those punishable under Sections 238, 239 and 351 of the BNS. At
the stage of remand, Section 3(5) was additionally pressed into
service. Sections 238, 239, 351 and 3(5) of the BNS read as
follows:
"238. Causing disappearance of evidence of
offence, or giving false information to screen offender.--
Whoever, knowing or having reason to believe that an offence
has been committed, causes any evidence of the Commission
of that offence to disappear, with the intention of screening
the offender from legal punishment, or with that intention
gives any information respecting the offence which he knows
or believes to be false shall,--
(a) if the offence which he knows or believes to have been
committed is punishable with death, be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine;
(b) if the offence is punishable with imprisonment for life, or
with imprisonment which may extend to ten years, be
punished with imprisonment of either description for a
term which may extend to three years, and shall also be
liable to fine;
(c) if the offence is punishable with imprisonment for any
term not extending to ten years, be punished with
imprisonment of the description provided for the
offence, for a term which may extend to one-fourth part
of the longest term of the imprisonment provided for
the offence, or with fine, or with both.
Illustration
A, knowing that B has murdered Z, assists B to hide the
body with the intention of screening B from punishment. A is
23
liable to imprisonment of either description for seven years,
and also to fine.
239. Intentional omission to give information of
offence by person bound to inform.--Whoever, knowing or
having reason to believe that an offence has been committed,
intentionally omits to give any information respecting that
offence which he is legally bound to give, shall be punished
with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to five
thousand rupees, or with both.
... ... ...
351. Criminal intimidation.--(1) Whoever threatens
another by any means, with any injury to his person, reputation
or property, or to the person or reputation of any one in whom
that person is interested, with intent to cause alarm to that
person, or to cause that person to do any act which he is not
legally bound to do, or to omit to do any act which that person
is legally entitled to do, as the means of avoiding the execution
of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any
deceased person in whom the person threatened is interested, is
within this section.
Illustration
A, for the purpose of inducing B to resist from prosecuting
a civil suit, threatens to burn B's house. A is guilty of criminal
intimidation.
(2) Whoever commits the offence of criminal intimidation
shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
(3) Whoever commits the offence of criminal intimidation
by threatening to cause death or grievous hurt, or to cause the
destruction of any property by fire, or to cause an offence
punishable with death or imprisonment for life, or with
imprisonment for a term which may extend to seven years, or to
impute unchastity to a woman, shall be punished with
24
imprisonment of either description for a term which may extend
to seven years, or with fine, or with both.
(4) Whoever commits the offence of criminal intimidation
by an anonymous communication, or having taken precaution to
conceal the name or abode of the person from whom the threat
comes, shall be punished with imprisonment of either
description for a term which may extend to two years, in
addition to the punishment provided for the offence under sub-
section (1).
3. General explanations. ... ...
...
(5) When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were
done by him alone."
None of these provisions render the alleged acts cognizable. They
remain non-cognizable offences. Section 3(5) of BNS, akin to
Section 34 of the erstwhile Indian Penal Code, 1860, does not
create a substantive offence by itself; it is merely a rule of
attribution of liability. It extends culpability to those who may not
have physically committed the act, but who are shown to have
shared the dual elements of mens rea and actus reus with the
principal offender. Such a provision, standing alone, could never
furnish legal foundation for the arrest of the petitioner, unless the
foundational offences themselves were cognizable and carried
25
punishment beyond the threshold warranting such coercive action.
Arrest is not a ritualistic exercise to be undertaken at the
whim of the investigating agency; it is a grave intrusion into
personal liberty, sanctioned only upon strict compliance with
statutory safeguards and constitutional limitations.
13. In this backdrop, it becomes apposite to traverse the
judicial landscape governing the circumstances in which the liberty
of a citizen may be curtailed by arrest. The law has consistently
underscored that arrest is not to be treated as the first
instinct of investigation, but as a measure of last resort, to
be employed only when compelling necessity demonstrably
exists.
JUDICIAL LANDSCAPE:
ON ARREST:
13.1. The Apex Court in the case of D.K. BASU v. STATE OF
WEST BENGAL1 has held as follows:
".... .... ....
1
(1997) 1 SCC 416
26
17. Fundamental Rights occupy a place of pride in
the Indian Constitution. Article 21 provides "no person
shall be deprived of his life or personal liberty except
according to procedure established by law". Personal
liberty, thus, is a sacred and cherished right under the
Constitution. The expression "life or personal liberty" has
been held to include the right to live with human dignity
and thus it would also include within itself a guarantee
against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest
and detention in certain cases and declares that no person who
is arrested shall be detained in custody without being informed
of the grounds of such arrest and he shall not be denied the
right to consult and defend himself by a legal practitioner of his
choice. Clause (2) of Article 22 directs that the person arrested
and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest, excluding
the time necessary for the journey from the place of arrest to
the Court of the Magistrate. Article 20(3) of the Constitution
lays down that a person accused of an offence shall not be
compelled to be a witness against himself. These are some of
the constitutional safeguards provided to a person with a view
to protect his personal liberty against any unjustified assault by
the State. In tune with the constitutional guarantee a number of
statutory provisions also seek to protect personal liberty, dignity
and basic human rights of the citizens. Chapter V of the Criminal
Procedure Code, 1973 deals with the powers or arrest of a
person and the safeguards which are required to be followed by
the police to protect the interest of the arrested person. Section
41 CrPC confers powers on any police officer to arrest a person
under the circumstances specified therein without any order or a
warrant of arrest from a Magistrate. Section 46 provides the
method and manner of arrest. Under this section no formality is
necessary while arresting a person. Under Section 49, the police
is not permitted to use more restraint than is necessary to
prevent the escape of the person. Section 50 enjoins every
police officer arresting any person without warrant to
communicate to him the full particulars of the offence for which
he is arrested and the grounds for such arrest. The police officer
is further enjoined to inform the person arrested that he is
entitled to be released on bail and he may arrange for sureties
in the event of his arrest for a non-bailable offence. Section 56
contains a mandatory provision requiring the police officer
27
making an arrest without warrant to produce the arrested
person before a Magistrate without unnecessary delay and
Section 57 echoes clause (2) of Article 22 of the Constitution of
India. There are some other provisions also like Sections 53, 54
and 167 which are aimed at affording procedural safeguards to
a person arrested by the police. Whenever a person dies in
custody of the police, Section 176 requires the Magistrate to
hold an enquiry into the cause of death.
18. However, in spite of the constitutional and
statutory provisions aimed at safeguarding the personal
liberty and life of a citizen, growing incidence of torture
and deaths in police custody has been a disturbing factor.
Experience shows that worst violations of human rights
take place during the course of investigation, when the
police with a view to secure evidence or confession often
resorts to third-degree methods including torture and
adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of
liberty merely as a prolonged interrogation. A reading of
the morning newspapers almost everyday carrying reports of
de-humanising torture, assault, rape and death in custody of
police or other governmental agencies is indeed depressing. The
increasing incidence of torture and death in custody has
assumed such alarming proportions that it is affecting the
credibility of the rule of law and the administration of criminal
justice system. The community rightly feels perturbed. Society's
cry for justice becomes louder.
19. The Third Report of the National Police Commission in
India expressed its deep concern with custodial violence and
lock-up deaths. It appreciated the demoralising effect which
custodial torture was creating on the society as a whole. It
made some very useful suggestions. It suggested:
"... An arrest during the investigation of a
cognizable case may be considered justified in one
or other of the following circumstances:
(i) The case involves a grave offence like
murder, dacoity, robbery, rape etc., and it is
necessary to arrest the accused and bring his
28
movements under restraint to infuse confidence
among the terror-stricken victims.
(ii) The accused is likely to abscond and
evade the processes of law.
(iii) The accused is given to violent
behaviour and is likely to commit further offences
unless his movements are brought under restraint.
(iv) The accused is a habitual offender and
unless kept in custody he is likely to commit
similar offences again. It would be desirable to
insist through departmental instructions that a
police officer making an arrest should also record
in the case diary the reasons for making the
arrest, thereby clarifying his conformity to the
specified guidelines. ..."
The recommendations of the Police Commission (supra) reflect
the constitutional concomitants of the fundamental right to
personal liberty and freedom. These recommendations,
however, have not acquired any statutory status so far.
20. This Court in Joginder Kumar v. State of U.P.
[(1994) 4 SCC 260: 1994 SCC (Cri) 1172] (to which one
of us, namely, Anand, J. was a party) considered the
dynamics of misuse of police power of arrest and opined:
(SCC p. 267, para 20)
"No arrest can be made because it is lawful
for the police officer to do so. The existence of the
power to arrest is one thing. The justification for
the exercise of it is quite another. ... No arrest
should be made without a reasonable satisfaction
reached after some investigation as to the
genuineness and bona fides of a complaint and a
reasonable belief both as to the person's
complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious
matter."
21.Joginder Kumar case [(1994) 4 SCC 260: 1994
SCC (Cri) 1172] involved arrest of a practising lawyer
who had been called to the police station in connection
29
with a case under inquiry on 7-1-1994. On not receiving
any satisfactory account of his whereabouts, the family
members of the detained lawyer preferred a petition in the
nature of habeas corpus before this Court on 11-1-1994 and in
compliance with the notice, the lawyer was produced on 14-1
1994 before this Court. The police version was that during 7-1
1994 and 14-1-1994 the lawyer was not in detention at all but
was only assisting the police to detect some cases. The detenu
asserted otherwise. This Court was not satisfied with the police
version. It is noticed that though as on that day the relief in
habeas corpus petition could not be granted but the questions
whether there had been any need to detain the lawyer for 5
days and if at all he was not in detention then why was this
Court not informed, were important questions which required
an answer. Besides, if there was detention for 5 days, for what
reason was he detained. The Court, therefore, directed the
District Judge, Ghaziabad to make a detailed enquiry and
submit his report within 4 weeks. The Court voiced its concern
regarding complaints of violations of human rights during and
after arrest. It said: (SCC pp. 263-64, paras 8 and 9)
"The horizon of human rights is expanding.
At the same time, the crime rate is also increasing.
Of late, this Court has been receiving complaints
about violations of human rights because of
indiscriminate arrests. How are we to strike a
balance between the two?
A realistic approach should be made in this
direction. The law of arrest is one of balancing individual
rights, liberties and privileges, on the one hand, and
individual duties, obligations and responsibilities on the
other; of weighing and balancing the rights, liberties and
privileges of the single individual and those of
individuals collectively; of simply deciding what is
wanted and where to put the weight and the emphasis;
of deciding which comes first -- the criminal or society,
the law violator or the law abider ...."
This Court then set down certain procedural
"requirements" in cases of arrest."
30
13.2. The Apex Court in the case of ARNESH KUMAR v.
STATE OF BIHAR2, holds as follows:
".... .... ....
7. As the offence with which we are concerned in the
present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine,
Section 41(1)(b) CrPC which is relevant for the purpose reads as
follows:
"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) ***
(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
extend to seven years whether with or without fine, if
the following conditions are satisfied, namely--
(i)***
(ii) the police officer is satisfied that such arrest is
necessary--
(a) to prevent such person from committing any
further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the
evidence of the offence to disappear or tampering
with such evidence in any manner; or
(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
2
(2014) 8 SCC 273
31
(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:
Provided that a police officer shall, in all cases
where the arrest of a person is not required
under the provisions of this sub-section, record
the reasons in writing for not making the arrest."
7.1. From a plain reading of the aforesaid provision, it is
evident that a person accused of an 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 his satisfaction that
such person had 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."
.........
9. Another provision i.e. Section 41-A CrPC aimed to
avoid unnecessary arrest or threat of arrest looming
large on the accused requires to be vitalised. Section 41-
A as inserted by Section 6 of the Code of Criminal
Procedure (Amendment) Act, 2008 (5 of 2009), which is
relevant in the context reads as follows:
"41-A. 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 sub section (1) of Section 41,
issue a notice directing the person against whom a
32
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 officer is of the opinion that the
arrest is necessary. At this stage also, the condition
precedent for arrest as envisaged under Section 41 CrPC
has to be complied and shall be subject to the same
scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section
41 CrPC which authorises the police officer to arrest an accused
without an order from a Magistrate and without a warrant are
scrupulously enforced, the wrong committed by the police
officers intentionally or unwittingly would be reversed and the
number of cases which come to the Court for grant of
anticipatory bail will substantially reduce. We would like to
emphasise that the practice of mechanically reproducing in the
33
case diary all or most of the reasons contained in Section 41
CrPC for effecting arrest be discouraged and discontinued.
11. Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we
have observed above, we give the following directions:
11.1. All the State Governments to instruct its
police officers not toautomatically arrest when a case
under Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section
41(1)(b)(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of
the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from the
date of institution of the case, which may be extended by
the Superintendent of Police of the district for the
reasons to be recorded in writing;
34
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to
be punished for contempt of court to be instituted before
the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as
aforesaid by the Judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court."
13.3. In the case of MOHAMMED ZUBAIR V. STATE (NCT
OF DELHI) AND OTHERS3, the Apex Court holds as follows:
".... .... ....
29. Police officers are vested with the power to arrest
individuals at various stages of the criminal justice process,
including during the course of investigation. However, this
power is not unbridled. In terms of Section 41(1)(b)(ii)CrPC, the
police officer in question must be satisfied that such arrest is
necessary to prevent the person sought to be arrested from
committing any further offence, for proper investigation of the
offence, to prevent the arrestee from tampering with or
destroying evidence, to prevent them from influencing or
intimidating potential witnesses, or when it is not possible to
ensure their presence in court without arresting them.
30. Police officers have a duty to apply their mind to the
case before them and ensure that the condition(s) in Section 41
are met before they conduct an arrest. This Court has time and
again, reiterated the importance of doing so, including in Arnesh
Kumar v. State of Bihar [Arnesh Kumar v. State of Bihar, (2014)
8 SCC 273 : (2014) 3 SCC (Cri) 449] , where the Court
observed : (SCC p. 277, para 6)
"6. ... The existence of the power to arrest is
one thing, the justification for the exercise of it is
3
2022 SCC OnLine SC 897
35
quite another. Apart from power to arrest, the
police officers must be able to justify the reasons
thereof. No arrest can be made in a routine
manner on a mere allegation of commission of an
offence made against a person."
31. We once again have occasion to reiterate that
the guidelines laid down in Arnesh Kumar [Arnesh Kumar
v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri)
449] must be followed, without exception. The raison
d'être of the powers of arrest in relation to cognizable
offences is laid down in Section 41. Arrest is not meant to
be and must not be used as a punitive tool because it
results in one of the gravest possible consequences
emanating from criminal law : the loss of personal liberty.
Individuals must not be punished solely on the basis of
allegations, and without a fair trial. When the power to
arrest is exercised without application of mind and
without due regard to the law, it amounts to an abuse of
power. The criminal law and its processes ought not to be
instrumentalised as a tool of harassment. Section 41CrPC
as well as the safeguards in criminal law exist in
recognition of the reality that any criminal proceeding
almost inevitably involves the might of the State, with
unlimited resources at its disposal, against a lone
individual."
13.4. Later, the Apex Court in the case of SATENDER
KUMAR ANTIL V. CBI4 has held as follows:
".... .... .....
27. On the scope and objective of Sections 41 and 41-A,
it is obvious that they are facets of Article 21 of the
Constitution. We need not elaborate any further, in light of the
judgment of this Court in Arnesh Kumar v. State of Bihar
[Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: (2014) 3
SCC (Cri) 449] : (SCC pp. 278-81, paras 7-12)
4
(2022) 10 SCC 51
36
"7.1. From a plain reading of the aforesaid
provision, it is evident that a person accused of an
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 his
satisfaction that such person had 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.
7.2. The law mandates the police officer to state
the facts and record the reasons in writing which led him
to come to a conclusion covered by any of the provisions
aforesaid, while making such arrest. The law further
requires the police officers to record the reasons in
writing for not making the arrest.
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 41CrPC.
8. An accused arrested without warrant by the
police has the constitutional right under Article 22(2) of
the Constitution of India and Section 57CrPC to be
37
produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours
excluding the time necessary for the journey:
8.1. During the course of investigation of a case,
an accused can be kept in detention beyond a period of
24 hours only when it is authorised by the Magistrate in
exercise of power under Section 167CrPC. The power to
authorise detention is a very solemn function. It affects
the liberty and freedom of citizens and needs to be
exercised with great care and caution. Our experience
tells us that it is not exercised with the seriousness it
deserves. In many of the cases, detention is authorised
in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention
under Section 167CrPC, he has to be first satisfied that
the arrest made is legal and in accordance with law and
all the constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does
not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further
detention and release the accused. In other words, when
an accused is produced before the Magistrate, the police
officer effecting the arrest is required to furnish to the
Magistrate, the facts, reasons and its conclusions for
arrest and the Magistrate in turn is to be satisfied that
the condition precedent for arrest under Section 41CrPC
has been satisfied and it is only thereafter that he will
authorise the detention of an accused.
8.3. The Magistrate before authorising detention
will record his own satisfaction, may be in brief but the
said satisfaction must reflect from his order. It shall
never be based upon the ipse dixit of the police officer,
for example, in case the police officer considers the
arrest necessary to prevent such person from
committing any further offence or for proper
investigation of the case or for preventing an accused
from tampering with evidence or making inducement,
etc. the police officer shall furnish to the Magistrate the
facts, the reasons and materials on the basis of which
the police officer had reached its conclusion. Those shall
be perused by the Magistrate while authorising the
detention and only after recording his satisfaction in
writing that the Magistrate will authorise the detention
of the accused.
38
8.4. In fine, when a suspect is arrested and
produced before a Magistrate for authorising detention,
the Magistrate has to address the question whether
specific reasons have been recorded for arrest and if so,
prima facie those reasons are relevant, and secondly, a
reasonable conclusion could at all be reached by the
police officer that one or the other conditions stated
above are attracted. To this limited extent the
Magistrate will make judicial scrutiny.
9. ... 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 officer is of the
opinion that the arrest is necessary. At this stage also,
the condition precedent for arrest as envisaged under
Section 41CrPC has to be complied and shall be subject
to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of
Section 41CrPC which authorises the police officer to
arrest an accused without an order from a Magistrate
and without a warrant are scrupulously enforced, the
wrong committed by the police officers intentionally or
unwittingly would be reversed and the number of cases
which come to the Court for grant of anticipatory bail
will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case
diary all or most of the reasons contained in Section
41CrPC for effecting arrest be discouraged and
discontinued.
11. Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we
have observed above, we give the following directions:
11.1. All the State Governments to instruct its
police officers not to automatically arrest when a case
under Section 498 AIPC is registered but to satisfy
themselves about the necessity for arrest under the
39
parameters laid down above flowing from Section
41CrPC;
11.2. All police officers be provided with a check
list containing specified sub-clauses under Section
41(1)(b)(ii);
11.3. The police officer shall forward the check
list duly filled and furnish the reasons and materials
which necessitated the arrest, while
forwarding/producing the accused before the Magistrate
for further detention;
11.4. The Magistrate while authorising detention
of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the district for the reasons to
be recorded in writing;
11.6. Notice of appearance in terms of Section
41-ACrPC be served on the accused within two weeks
from the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions
aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be
instituted before the High Court having territorial
jurisdiction.
11.8. Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the
appropriate High Court.
12. We hasten to add that the directions
aforesaid shall not only apply to the cases under Section
498-AIPC or Section 4 of the Dowry Prohibition Act, the
case in hand, but also such cases where offence is
40
punishable with imprisonment for a term which may be
less than seven years or which may extend to seven
years, whether with or without fine.
... ... ...
29. Despite the dictum of this Court in Arnesh
Kumar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC
273: (2014) 3 SCC (Cri) 449], no concrete step has been
taken to comply with the mandate of Section 41-A of the
Code. This Court has clearly interpreted Sections
41(1)(b)(i) and (ii) inter alia holding that
notwithstanding the existence of a reason to believe qua
a police officer, the satisfaction for the need to arrest
shall also be present. Thus, sub-clause (1)(b)(i) of
Section 41 has to be read along with sub-clause (ii) and
therefore both the elements of "reason to believe" and
"satisfaction qua an arrest" are mandated and
accordingly are to be recorded by the police officer.
... ... ...
32. We also expect the courts to come down heavily
on the officers effecting arrest without due compliance of
Section 41 and Section 41-A. We express our hope that
the investigating agencies would keep in mind the law
laid down in Arnesh Kumar [Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 273: (2014) 3 SCC (Cri) 449], the
discretion to be exercised on the touchstone of
presumption of innocence, and the safeguards provided
under Section 41, since an arrest is not mandatory. If
discretion is exercised to effect such an arrest, there shall
be procedural compliance. Our view is also reflected by
the interpretation of the specific provision under Section
60-A of the Code which warrants the officer concerned to
make the arrest strictly in accordance with the Code."
The Apex Court in D.K. BASU supra holds that fundamental rights
occupy a position of unparalleled pride within the constitutional
framework of India. Article 21 of the Constitution of India ordains,
in emphatic terms, that no person shall be deprived of his life or
41
personal liberty except in accordance with procedure established by
law. Personal liberty, therefore, is not a mere statutory privilege; it
is a inviolable constitutional guarantee. The Apex Court further
observed that arrest during investigation, even in respect of a
cognizable offence, cannot be treated as a matter of routine or
convenience, but would stand justified only upon the existence of
legally sustainable circumstances warranting such deprivation of
liberty.
The principle was carried forward and fortified in ARNESH
KUMAR supra, wherein the Apex Court authoritatively held that in
offences punishable with imprisonment of less than seven years,
the mere existence of power to arrest does not ipso facto justify its
exercise. The Court mandated that, save in exceptional
circumstances, a notice under Section 41-A of the Code of Criminal
Procedure, 1973 must precede arrest, summoning the accused for
appearance and interrogation. The judgment laid down
unmistakable safeguards, declaring that arrest can never be
automatic; it must be preceded by a conscious application of
42
mind by the investigating agency regarding the necessity of
such arrest.
The same constitutional ethos echoed in MOHAMMED
ZUBAIR supra, where the Apex Court underscored that arrest is
neither intended to be, nor permitted to become, a punitive
instrument. The Court observed that arrest carries with it the
gravest consequence known to criminal jurisprudence - the
deprivation of personal liberty and therefore cannot be deployed as
a tool of punishment before adjudication.
The said principles were reiterated with renewed emphasis in
SATENDER KUMAR ANTIL supra. The Apex Court unequivocally
held that constitutional Courts are expected to come down with
severity upon investigating officers who effect arrests in brazen
disregard of Sections 41 and 41-A of the Code of Criminal
Procedure, 1973 and in violation of the binding mandate laid down
in ARNESH KUMAR. The distilled essence of these
pronouncements is singular and unmistakable: personal
liberty cannot be sacrificed at the altar of mechanical
43
policing, and arrest cannot become a reflexive act of
investigation.
14. It is trite, that no arrest can be made merely
because it is lawful for the police to do so. The existence of
power to arrest is one thing; the justification for its exercise
is entirely another. Law does not countenance arrest as an
instinctive response. Before curtailing the liberty of a citizen, the
investigating agency must arrive at a reasonable satisfaction,
founded upon objective material and preceded by due investigation,
as to the genuineness and bona fides of the complaint or
information received. Every arrest carries consequences far
beyond physical restraint - it strips a person of liberty,
subjects him to humiliation, curtails his freedom, and often
leaves behind an indelible scar upon reputation and dignity.
15. Diving back to the facts of the case at hand and testing
them on the anvil of the principles enunciated by the Apex Court in
the aforesaid decisions, what unmistakably emerges is, a deeply
disquieting picture of executive excess. The personal liberty of the
44
petitioner, a right guarded under Article 21 of the Constitution, has
been snatched away by the jurisdictional Police without any
discernible justification, without adherence to statutory safeguards,
and without even the semblance of procedural fairness. The arrest,
therefore, cannot be seen as a mere irregularity in procedure; it
strikes at the very heart of constitutional governance. Such
deprivation of liberty, bereft of lawful justification, becomes a
blatant infraction of the law declared by the Apex Court and a direct
assault on the constitutional tenets of dignity, fairness, and due
process. Therefore, I hold the arrest of the petitioner as illegal. The
issue is answered accordingly.
ISSUE NO.3:
"Whether the petitioner is entitled for compensation in
the event his arrest would be held illegal?"
16. The prayer of the petitioner as quoted hereinabove is for
grant of compensation on such illegal arrest. I have found the
arrest of the petitioner to be illegal in answer to Issue No.2. In view
45
of the said analysis qua issue No.2, it becomes germane to consider
whether the petitioner is entitled to compensation. Once this Court
arrives at an unequivocal finding that the arrest of the petitioner
was illegal and effectuated in brazen disregard of the mandate laid
down in ARNESH KUMAR V. STATE OF BIHAR, as repeatedly
affirmed and reinforced in subsequent pronouncements, the
consequence in law must necessarily follow. Constitutional Courts
do not merely declare illegality; they are duty-bound to render
meaningful remedies against State excesses. In that light, I deem it
appropriate to notice the jurisprudence with regard to grant of
compensation on illegal arrest.
JUDICIAL PRISM:
COMPENSATION ON ILLEGAL ARREST:
16.1. The Apex Court, in the case of SUBE SINGH V. STATE
OF HARYANA5 has held as follows:
".... .... ....
Compensation as a public law remedy
5
(2006) 3 SCC 178
46
31. Though illegal detention and custodial torture were
recognised as violations of the fundamental rights of life and
liberty guaranteed under Article 21, to begin with, only the
following reliefs were being granted in the writ petitions under
Article 32 or 226:
(a) direction to set at liberty the person detained, if the
complaint was one of illegal detention.
(b) direction to the Government concerned to hold an
inquiry and take action against the officers responsible for the
violation.
(c) if the enquiry or action taken by the department
concerned was found to be not satisfactory, to direct an inquiry
by an independent agency, usually the Central Bureau of
Investigation.
Award of compensation as a public law remedy for violation of
the fundamental rights enshrined in Article 21 of the
Constitution, in addition to the private law remedy under the
law of torts, was evolved in the last two-and-a-half decades.
32. In the Bhagalpur Blinding case [Khatri (II) v. State of
Bihar [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] ] Bhagwati, J.
(as he then was), speaking for the Bench, posed the following
question while considering the relief that could be given by a
court for violation of constitutional rights guaranteed in Article
21 of the Constitution: (SCC p. 630, para 4)
"[B]ut if life or personal liberty is violated
otherwise than in accordance with such procedure,
is the court helpless to grant relief to the person
who has suffered such deprivation? Why should
the court not be prepared to forge new tools and
devise new remedies for the purpose of
vindicating the most precious of the precious
fundamental right to life and personal liberty."
The question was expanded in a subsequent order in Bhagalpur
Blinding case [Khatri (IV) v. State of Bihar [(1981) 2 SCC 493 :
1981 SCC (Cri) 503] ] thus: (SCC p. 504, para 7)
47
"If an officer of the State acting in his official
capacity threatens to deprive a person of his life or
personal liberty without the authority of law, can such
person not approach the court for injuncting the State
from acting through such officer in violation of his
fundamental right under Article 21? Can the State urge
in defence in such a case that it is not infringing the
fundamental right of the petitioner under Article 21,
because the officer who is threatening to do so is acting
outside the law and therefore beyond the scope of his
authority and hence the State is not responsible for his
action? Would this not make a mockery of Article 21 and
reduce it to nullity, a mere rope of sand, for, on this
view, if the officer is acting according to law there would
ex concessionis be no breach of Article 21 and if he is
acting without the authority of law, the State would be
able to contend that it is not responsible for his action
and therefore there is no violation of Article 21. So also
if there is any threatened invasion by the State of the
fundamental right guaranteed under Article 21, the
petitioner who is aggrieved can move the court under
Article 32 for a writ injuncting such threatened invasion
and if there is any continuing action of the State which is
violative of the fundamental right under Article 21, the
petitioner can approach the court under Article 32 and
ask for a writ striking down the continuance of such
action, but where the action taken by the State has
already resulted in breach of the fundamental right
under Article 21 by deprivation of some limb of the
petitioner, would the petitioner have no remedy under
Article 32 for breach of the fundamental right
guaranteed to him? Would the court permit itself to
become helpless spectator of the violation of the
fundamental right of the petitioner by the State and tell
the petitioner that though the Constitution has
guaranteed the fundamental right to him and has also
given him the fundamental right of moving the court for
enforcement of his fundamental right, the court cannot
give him any relief."
33. Answering the said questions, it was held that when a
court trying the writ petition proceeds to inquire into the
violation of any right to life or personal liberty, while in police
custody, it does so, not for the purpose of adjudicating upon the
guilt of any particular officer with a view to punishing him but
for the purpose of deciding whether the fundamental right of the
48
petitioners under Article 21 has been violated and the State is
liable to pay compensation to them for such violation. This Court
clarified that the nature and object of the inquiry is altogether
different from that in a criminal case and any decision arrived at
in the writ petition on this issue cannot have any relevance
much less any binding effect, in any criminal proceeding which
may be taken against a particular police officer. This Court
further clarified that in a given case, if the investigation is still
proceeding, the Court may even defer the inquiry before it until
the investigation is completed or if the Court considered it
necessary in the interests of justice, it may postpone its inquiry
until after the prosecution was terminated, but that is a matter
entirely for the exercise of the discretion of the Court and there
is no bar precluding the Court from proceeding with the inquiry
before it, even if the investigation or prosecution is pending.
34. In Rudul Sah v. State of Bihar [(1983) 4 SCC 141 :
1983 SCC (Cri) 798] the petitioner therein approached this
Court under Article 32 of the Constitution alleging that though
he was acquitted by the Sessions Court on 3-6-1968, he was
released from jail only on 6-10-1982, after 14 years, and sought
compensation for his illegal detention. This Court while
recognising that Article 32 cannot be used as a substitute for
the enforcement of rights and obligations which can be enforced
efficaciously through the ordinary processes of courts, civil and
criminal, raised for consideration the important question as to
whether in the exercise of its jurisdiction under Article 32, this
Court can pass an order for payment of money, as
compensation for the deprivation of a fundamental right. This
Court answered the question thus while awarding
compensation: (SCC pp. 147-48, para 10)
"Article 21 which guarantees the right to life
and liberty will be denuded of its significant
content if the power of this Court were limited to
passing orders of release from illegal detention.
One of the telling ways in which the violation of
that right can reasonably be prevented and due
compliance with the mandate of Article 21
secured, is to mulct its violators in the payment of
monetary compensation. Administrative sclerosis
leading to flagrant infringement of fundamental
rights cannot be corrected by any other method
open to the judiciary to adopt. The right to
49
compensation is some palliative for the unlawful
acts of instrumentalities which act in the name of
public interest and which present for their
protection the powers of the State as a shield. If
civilisation is not to perish in this country as it has
perished in some others too well known to suffer
mention, it is necessary to educate ourselves into
accepting that, respect for the rights of individuals
is the true bastion of democracy. Therefore, the
State must repair the damage done by its officers
to the petitioner's rights. It may have recourse
against those officers."
Rudul Sah [(1983) 4 SCC 141: 1983 SCC (Cri) 798] was
followed in Bhim Singh v. State of J&K [(1985) 4 SCC 677: 1986
SCC (Cri) 47] and Peoples' Union for Democratic Rights v. Police
Commr. [(1989) 4 SCC 730: 1990 SCC (Cri) 75]
35. The law was crystallised in Nilabati Behera v. State of
Orissa [(1993) 2 SCC 746: 1993 SCC (Cri) 527]. In that case,
the deceased was arrested by the police, handcuffed and kept in
police custody. The next day, his dead body was found on a
railway track. This Court awarded compensation to the mother
of the deceased. J.S. Verma, J. (as he then was) spelt out the
following principles:
"[A]ward of compensation in a proceeding
under Article 32 by this Court or by the High Court
under Article 226 of the Constitution is a remedy
available in public law, based on strict liability for
contravention of fundamental rights to which the
principle of sovereign immunity does not apply,
even though it may be available as a defence in
private law in an action based on tort.
(SCC p. 758, para 10)
***
... enforcement of the constitutional right
and grant of redress embraces award of
compensation as part of the legal consequences of
its contravention.
... 'a claim in public law for compensation'
for contravention of human rights and
fundamental freedoms, the protection of which is
50
guaranteed in the Constitution, is an
acknowledged remedy for enforcement and
protection of such rights, and such a claim based
on strict liability made by resorting to a
constitutional remedy provided for the
enforcement of a fundamental right is 'distinct
from, and in addition to, the remedy in private law
for damages for the tort' resulting from the
contravention of the fundamental right. The
defence of sovereign immunity being inapplicable,
and alien to the concept of guarantee of
fundamental rights, there can be no question of
such a defence being available in the
constitutional remedy. It is this principle which
justifies award of monetary compensation for
contravention of fundamental rights guaranteed
by the Constitution, 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, and
enforcement of the fundamental right is claimed
by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of
the Constitution. (SCC pp. 762-63, paras 16-17)"
(emphasis supplied)
36. Dr. A.S. Anand, J., (as he then was) in his concurring
judgment elaborated the principle thus:
"[C]onvicts, prisoners or undertrials are not
denuded of their fundamental rights under Article 21
and it is only such restrictions, as are permitted by law,
which can be imposed on the enjoyment of the
fundamental rights by such persons. It is an obligation
of the State to ensure that there is no infringement of
the indefeasible rights of a citizen to life, except in
accordance with law, while the citizen is in its custody.
(SCC p. 767, para 31)
***
The public law proceedings serve a different
purpose than the private law proceedings. The
relief of monetary compensation, as exemplary
damages, in proceedings under Article 32 by [the
51
Supreme] Court or under Article 226 by the High
Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of
the Constitution is a remedy available in public law
and is based on the strict liability for
contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of
public law is not only to civilise public power but
also to assure the citizens that they live under a
legal system which aims to protect their interests
and preserve their rights. Therefore, when the
court moulds the relief by granting 'compensation'
in proceedings under Article 32 or 226 of the
Constitution seeking enforcement or protection of
fundamental rights, it does so under the public law
by way of penalising the wrongdoer and fixing the
liability for the public wrong on the State which
has failed in its public duty to protect the
fundamental rights of the citizen. The payment of
compensation in such cases is not to be
understood as it is generally understood in a civil
action for damages under the private law but in
the broader sense of providing relief by an order of
making 'monetary amends' under the public law
for the wrong done due to breach of public duty, of
not protecting the fundamental rights of the
citizen. The compensation is in the nature of
'exemplary damages' awarded against the
wrongdoer for the breach of its public law duty
and is independent of the rights available to the
aggrieved party to claim compensation under the
private law in an action based on tort, through a
suit instituted in a court of competent jurisdiction
or/and prosecute the offender under the penal
law.
(SCC pp. 768-69, para 34)"
37. In D.K. Basu v. State of W.B. [(1997) 1 SCC 416 :
1997 SCC (Cri) 92] this Court again considered exhaustively the
question and held that monetary compensation should be
awarded for established infringement of fundamental rights
guaranteed under Article 21. This Court held:
"Custodial violence, including torture and death
in the lock ups, strikes a blow at the rule of law, which
demands that the powers of the executive should not
52
only be derived from law but also that the same should
be limited by law. Custodial violence is a matter of
concern. It is aggravated by the fact that it is committed
by persons who are supposed to be the protectors of the
citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up,
the victim being totally helpless. The protection of an
individual from torture and abuse by the police and
other law-enforcing officers is a matter of deep concern
in a free society.
(SCC p. 424, para 9)
***
Any form of torture or cruel, inhuman or
degrading treatment would fall within the inhibition of
Article 21 of the Constitution, whether it occurs during
investigation, interrogation or otherwise. If the
functionaries of the Government become lawbreakers, it
is bound to breed contempt for law and would
encourage lawlessness and every man would have the
tendency to become law unto himself thereby leading to
anarchy. No civilised nation can permit that to happen.
Does a citizen shed off his fundamental right to life, the
moment a policeman arrests him? Can the right to life of
a citizen be put in abeyance on his arrest? ... The
answer, indeed, has to be an emphatic 'No'.
(SCC p. 429, para 22)
***
Police is, no doubt, under a legal duty and has
legitimate right to arrest a criminal and to interrogate
him during the investigation of an offence but it must be
remembered that the law does not permit use of third-
degree methods or torture of accused in custody during
interrogation and investigation with a view to solve the
crime. End cannot justify the means. The interrogation
and investigation into a crime should be in true sense
purposeful to make the investigation effective. By
torturing a person and using third-degree methods, the
police would be accomplishing behind the closed doors
what the demands of our legal order forbid. No society
can permit it."
38. It is thus now well settled that the award of
compensation against the State is an appropriate and
53
effective remedy for redress of an established
infringement of a fundamental right under Article 21, by a
public servant. The quantum of compensation will,
however, depend upon the facts and circumstances of
each case. Award of such compensation (by way of public
law remedy) will not come in the way of the aggrieved
person claiming additional compensation in a civil court,
in the enforcement of the private law remedy in tort, nor
come in the way of the criminal court ordering
compensation under Section 357 of the Code of Criminal
Procedure."
39. This takes us to the next question as to whether
compensation should be awarded under Articles 32/226 for
every violation of Article 21 where illegal detention or custodial
violence is alleged."
16.2. The Apex Court in S. NAMBI NARAYANAN v. SIBY
MATHEWS6 has held as follows:
".... .... ....
38. Reputation of an individual is an insegregable facet of
his right to life with dignity. In a different context, a two-Judge
Bench of this Court in Vishwanath Agrawal v. Sarla Vishwanath
Agrawal [Vishwanath Agrawal v. Sarla Vishwanath Agrawal,
(2012) 7 SCC 288: (2012) 4 SCC (Civ) 224: (2012) 3 SCC (Cri)
347] has observed: (SCC pp. 307, para 55)
"55. ... reputation which is not only the salt of
life, but also the purest treasure and the most precious
perfume of life. It is extremely delicate and a cherished
value this side of the grave. It is a revenue generator for
the present as well as for the posterity."
39. From the aforesaid analysis, it can be stated with
certitude that the fundamental right of the appellant under
Article 21 has been gravely affected. In this context, we may
6
(2018) 10 SCC 804
54
refer with profit how this Court had condemned the excessive
use of force by the police. In Delhi Judicial Service
Assn. v. State of Gujarat [Delhi Judicial Service Assn. v. State of
Gujarat, (1991) 4 SCC 406], it said: (SCC pp. 454-55, para 39)
"39. ... The main objective of police is to
apprehend offenders, to investigate crimes and to
prosecute them before the courts and also to
prevent commission of crime and above all to
ensure law and order to protect the citizens' life
and property. The law enjoins the police to be
scrupulously fair to the offender and the Magistracy
is to ensure fair investigation and fair trial to an
offender. The purpose and object of Magistracy and
police are complementary to each other. It is
unfortunate that these objectives have remained
unfulfilled even after 40 years of our Constitution.
Aberrations of police officers and police excesses in
dealing with the law and order situation have been
subject of adverse comments from this Court as
well as from other courts but it has failed to have
any corrective effect on it. The police has power to
arrest a person even without obtaining a warrant of
arrest from a court. The amplitude of this power
casts an obligation on the police ... [and it] must
bear in mind, as held by this Court that if a person
is arrested for a crime, his constitutional and
fundamental rights must not be violated."
40. If the obtaining factual matrix is adjudged on
the aforesaid principles and parameters, there can be no
scintilla of doubt that the appellant, a successful scientist
having national reputation, has been compelled to
undergo immense humiliation. The lackadaisical attitude
of the State Police to arrest anyone and put him in police
custody has made the appellant to suffer the ignominy.
The dignity of a person gets shocked when psycho-
pathological treatment is meted out to him. A human
being cries for justice when he feels that the insensible
act has crucified his self-respect. That warrants grant of
compensation under the public law remedy. We are
absolutely conscious that a civil suit has been filed for
55
grant of compensation. That will not debar the
constitutional court to grant compensation taking
recourse to public law. The Court cannot lose sight of the
wrongful imprisonment, malicious prosecution, the
humiliation and the defamation faced by the appellant.
41. In Sube Singh v. State of Haryana [Sube
Singh v. State of Haryana, (2006) 3 SCC 178: (2006) 2 SCC
(Cri) 54], the three-Judge Bench, after referring to the earlier
decisions, has opined: (SCC pp. 198-99, para 38)
"38. It is thus now well settled that the
award of compensation against the State is an
appropriate and effective remedy for redress of an
established infringement of a fundamental right
under Article 21, by a public servant. The quantum
of compensation will, however, depend upon the
facts and circumstances of each case. Award of
such compensation (by way of public law remedy)
will not come in the way of the aggrieved person
claiming additional compensation in a civil court, in
the enforcement of the private law remedy in tort,
nor come in the way of the criminal court ordering
compensation under Section 357 of the Code of
Criminal Procedure."
42. In Hardeep Singh v. State of M.P. [Hardeep
Singh v. State of M.P., (2012) 1 SCC 748: (2012) 1 SCC (Cri)
684], the Court was dealing with the issue of delayed trial and
the humiliation faced by the appellant therein. A Division Bench
of the High Court in intra-court appeal had granted [Hardeep
Singh Anand v. State of M.P., 2008 SCC OnLine MP 501: 2008
Cri LJ 3281] compensation of Rs 70,000. This Court, while
dealing with the quantum of compensation, highlighted the
suffering and humiliation caused to the appellant and enhanced
the compensation.
43. In the instant case, keeping in view the report
of CBI and the judgment rendered by this Court in K.
Chandrasekhar [K. Chandrasekhar v. State of Kerala,
(1998) 5 SCC 223: 1998 SCC (Cri) 1291], suitable
compensation has to be awarded, without any trace of
56
doubt, to compensate the suffering, anxiety and the
treatment by which the quintessence of life and liberty
under Article 21 of the Constitution withers away. We
think it appropriate to direct the State of Kerala to pay a
sum of Rs 50 lakhs towards compensation to the
appellant and, accordingly, it is so ordered. The said
amount shall be paid within eight weeks by the State. We
hasten to clarify that the appellant, if so advised, may
proceed with the civil suit wherein he has claimed more
compensation. We have not expressed any opinion on the
merits of the suit."
16.3. The Apex Court in DAUDAYAL v. STATE OF
RAJASTHAN7, considers the entire spectrum of the law with regard
to grant of compensation on illegal arrest. The Apex Court holds as
follows:
".... .... ....
12. Having considered instances of award of
compensation as above, as also the discussion preceding
that we are of the considered view that the appellant is
entitled to compensation for the twenty-four days of
illegal custody suffered by him at the hands of the
respondent State. The liberty of an individual is not a
trivial matter. The State cannot continue curtailing the same
in the face of a court order, on account of its slow bureaucratic
processes of taking decisions whether to file appeals in a
particular matter or not. If such a view is agreed to by us, it
would amount to the liberty of a person being placed sub-par to
the decision whether or not to file an appeal which is purely an
administrative call. That cannot be countenanced. We may only
observe that in BaradakantaMisra v. Bhimsen Dixit, it has been
observed by a Bench of three Judges that merely because a
certificate of appeal had been sought from the High Court
7
2026 SCC OnLine SC 993
57
against an order and the same was pending, the binding
character of the High Court order does not lose its lustre. This
would squarely apply in this case. Once the detenue has been
ordered to be released, the same has to be followed no matter
what. The only scenario in which it would not be so done was if
a superior Court has granted stay in the matter. Just because a
person had been convicted does not mean that his rights weigh
less on the scales of justice. We say so for the reason that the
due process of verification of sureties had already taken place
and despite the same there is an unexplained delay. This Court
is oblivious of the fact that such official processes do require
some time however, it is incumbent upon the State to ensure its
processes do not negatively impact an individual who has
secured his liberty.
(Emphasis supplied at each instance)
The Apex Court holds that the appellant therein was entitled to
compensation for 24 days of illegal custody suffered by him at the
hands of the State. It holds that liberty of an individual is not a
trivial matter. The State cannot curtail such liberty. Compensation
to the tune of ₹11/- lakhs for illegal detention of the appellant
therein for 24 days is awarded.
17. On a blend of the judgments rendered by the Apex Court
as noticed supra coupled with the fact that this court has held that
the arrest of the petitioner is illegal, compensation, in such cases,
is not awarded as largesse, nor as an act of sympathy; it is
58
granted as a constitutional balm for the violation of
fundamental rights, as a public law remedy intended both to
redress the injury suffered by the victim and to remind the
State that abuse of power carries consequences. Therefore,
the petitioner, having suffered unlawful deprivation of liberty and
alleged custodial assault, becomes entitled to consideration for
grant of compensation commensurate with the injury inflicted upon
his person, dignity, and constitutional rights.
18. The Apex Court has, in unmistakably strong terms,
deprecated the pernicious tendency of "arrest first and investigate
later," observing that such an attitude is not merely undesirable but
despicable. The Court has cautioned that arrest has, at times,
become a convenient weapon in the hands of police officers who
either act without requisite sensitivity to constitutional values or,
worse, are driven by oblique motives. Those observations, with
striking aptness, apply to the case at hand.
19. The arrest of the petitioner stands as a glaring
affront to Article 21 of the Constitution of India. By such
59
unlawful deprivation of liberty, the petitioner was not merely
detained; he was subjected to indignity, humiliation, and the
trauma that inevitably accompanies the coercive arm of the State
being unleashed without lawful justification. The conduct of the
police, in the case at hand, is in brazen violation of the safeguards
and guidelines painstakingly chiselled by the Apex Court,
commencing from D.K. BASU and continuing through SATENDER
KUMAR ANTIL. There is a flagrant and conscious infraction of the
statutory mandate embodied in Sections 41 and 41-A of the Code
of Criminal Procedure, 1973. The police, under no circumstance,
can be permitted to flout the law with such brazen proclivity, for to
condone such conduct would be to legitimize arbitrariness under the
cloak of investigation.
20. The Apex Court has repeatedly postulated that
where the State and its agents transgress constitutional
boundaries and inflicts injury upon the liberty of a citizen,
constitutional Courts cannot remain mute spectators. The
violation itself compels judicial intervention. Constitutional
Courts have consistently taken note of the suffering,
60
indignity, and humiliation inflicted upon citizens at the
hands of the agents of the State. The Courts have held that
citizens who are subjected to unlawful arrest, illegal
detention, or custodial excess are entitled to compensation
as an immediate constitutional remedy, while preserving their
liberty to seek further damages before a competent civil Court,
under private law. The Apex Court has described such
compensatory jurisprudence as a redeeming feature - an
acknowledgment that mere declaration of illegality is often
insufficient to repair the injury inflicted upon fundamental
rights.
21. In the case at hand, in view of the preceding analysis, the
arrest of the petitioner is held to be manifestly illegal and in patent
violation of the guidelines laid down by the Apex Court in ARNESH
KUMAR supra. The inevitable legal consequence of such a finding is
that the petitioner becomes entitled to compensation payable by
the State for the unlawful invasion of his liberty and dignity. This
Court deems it appropriate to assess such compensation at
₹5,00,000/-, to be paid by the State to the petitioner.
61
22. The award of compensation herein, however, shall not
operate as a bar to the petitioner pursuing any additional claim for
damages before a competent civil Court in enforcement of a private
law remedy. The present compensation is, but a constitutional
acknowledgment of the wrong suffered; it neither exhausts nor
extinguishes the petitioner's remedies in private law.
23. On all the aforesaid analysis, the summation would be:
(a) There is no warrant of interference at the stage of
crime, in the result, the prayer with regard to quashing
of the crime is sans acceptance.
(b) The arrest of the petitioner is declared illegal.
(c) The petitioner becomes entitled to compensation for such
illegal arrest.
Merely because the Embassy of the United States of America
or any other country would communicate a complaint to the
investigating agencies of this Nation, it would not mean that
the fundamental rights of the citizens of the Nation should
be bartered away.
62
24. For the praedictus reasons, the following: -
ORDER
(i) Criminal Petition is allowed in part.
(ii) The arrest of the petitioner is declared illegal.
SPONSORED
(iii) The petitioner becomes entitled to compensation of
₹5,00,000/- on such illegal arrest.
(iv) The State shall pay the aforesaid compensation within
four weeks from the date of receipt of a copy of this
order.
(v) The challenge to FIR in Crime No.0034 of 2026 dated
18-04-2026 registered at Kutta Police Station, Kodagu
District, fails. It is imperative that the investigation
should continue.
(vi) Liberty is reserved to the petitioner to knock at the
doors of this Court, in the event he is aggrieved with
the final report.
Consequently, I.A.No.1 of 2026 also stands disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ
