While espousing fully, firmly and finally the basic legal rights of a person, the Allahabad High Court has most recently in a latest, learned, landmark and laudable judgment titled Shiv Kumar Verma & Anr. V. State of UP & Ors. in Criminal Misc. Writ Petition No. – 16386 of 2020 held very rightly, remarkably and reasonably that keeping a person in custody, despite his furnishing personal bonds as required by the Magistrate is violative of his right to personal liberty guaranteed under Article 21 of the Constitution. It must be also mentioned here that a Division Bench comprising of Justice Surya Prakash Kesarwani and Justice Shamim Ahmed in this notable case pulled up an Executive Magistrate for failing to release two persons, arrested on apprehensions of breach of public peace, despite their furnishing personal bond and other papers. It thus held explicitly, elegantly and effectively that keeping a person in custody, despite fulfillment of conditions contained in the CrPC is violative of Articles 14 and 21 of the Constitution. Very rightly so!
To start with, the ball is set rolling by first and foremost mentioning about the relief prayed in the writ petition and which is stated in para 2 as: “This writ petition has been filed praying for the following reliefs:
“i) Issue a writ, order or direction in the nature of mandamus directing the respondents to give compensation to the petitioners in lieu of illegal detention from 12.10.2020 to 21.10.2020 in connection with Case Crime No.624 of 2020, State vs. Shiv Kumar Verma and another, under Section 151, 107 and 116 Cr.P.C., Police Station Rohania, District Varanasi.”
To say the least, the Bench then states in para 3 that, “In compliance to the order dated 27.1.2021, counter affidavit dated 2.2.2021 by the respondent no.1, counter affidavit dated 31.1.2021 by the respondent no.2, counter affidavit dated 1.2.2021 by the respondent no.3 and counter affidavit dated 1.2.2021 by the respondent no.4 have been filed today, which all are taken on record. In compliance to the aforesaid order dated 27.1.2021, Sri Tarun Gauba, Secretary Home, U.P. Lucknow is personally present in Court.”
To put things in perspective, the Bench then states in para 4 that, “Briefly stated, facts of the present case are that there was some dispute relating to ancestral property between the petitioners and their family members. In paragraph 3 of the writ petition, it has been stated that some tiff arose between the petitioners and other family members, namely, Rajendra Prasad, Shiv Kumar Verma and Raj Kumar Verma regarding partition of ancestral land and in apprehension of breach of public peace, the police arrested the petitioners under Section 151 Cr.P.C. on 8.10.2020. A Challani Report dated 8.10.2020 was submitted by the Sub Inspector, Police Station Rohania, District Varanasi to the Sub Divisional Magistrate, District Varanasi under Section 151/107/116 Cr.P.C., which is in printed form and merely name of the petitioners and others, name of village and “land dispute” have been written by ink in the aforesaid Challani Report. On receipt of the Challani Report, the Sub Divisional Magistrate registered the case as Case No.624 of 2020 (State vs. Shiv Kumar Maurya and others) and passed the following order on 8.10.2020.”
Briefly stated, it is then stated in para 5 that, “It appears that on 12.10.2020 the petitioners submitted personal bond and other papers but the respondent no.3 has not released them and instead, under the pretext of verification, directed the file to be placed on 21.10.2020.”
As we see, it is then observed in para 6 that, “Thereafter, on 21.10.2020 the petitioners were released. Aggrieved with the arbitrary and illegal action of the respondents and illegal detention, the petitioners have filed the present writ petition praying for the relief as afore-quoted.”
Be it noted, the Bench then elucidates in para 8 that, “From the facts briefly noted above and the counter affidavit of respondent no.1, it stands admitted that the police authorities are arbitrarily and illegally submitting Challani Reports under Sections 107/116 Cr.P.C. Since the respondent no.1 has taken steps to correct the mistakes and illegalities, therefore, we do not propose to issue any further direction in that regard, except that the afore-quoted Circulars dated 30th January, 2021 and 31st January, 2021 shall be strictly implemented in the whole of the State of Uttar Pradesh.”
It is worth noting that it is then stated in para 9 that, “In the counter affidavit dated 1.2.2021, the respondent no.3 has stated in paragraph 5 and 8 that “the petitioners submitted the applications through their counsel that they are ready for furnishing personal bonds as well as bail bonds, therefore, they may be released on bail and the answering respondent directed the concerned Tehsildar to verify the revenue records produced by the sureties and on verification the petitioners shall be released on 21.10.2020 on bail.”
While reminding the respondent no. 3 of the right and relevant provision of law, the Bench then adds in para 10 that, “In his counter affidavit, the respondent no.3 has tried to justify his arbitrary action and clear breach of statutory duty cast upon him as well as the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India. In this regard, it would be appropriate to refer to the provisions of Section 107, 111 and 116 of the Code of the Criminal Procedure, 1973, which are reproduced below:
“107. Security for keeping the peace in other cases.
(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit
(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.
“111. Order to be made. When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.”
“116. Inquiry as to truth of information.
(1) When an order under section Ill has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons- cases.
(3) After the commencement, and before the completion, of the inquiry under sub- section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded: Provided that-
(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. (4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.
(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just.
(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.
(7) Where any direction is made under sub- section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.”
It would be imperative to now mention here that it is then disclosed in para 11 that, “Section 107 Cr.P.C. requires the Magistrate receiving the information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. Perusal of the order dated 8.10.2020 passed by the respondent no.3 would reveal that there is no such satisfaction recorded by the respondent no.3. The aforesaid order dated 8.10.2020 would further reveal that the respondent no.3 has not required the petitioners to show cause that why they should not be ordered to execute a bond with or without sureties. Thus, the respondent no. 3 has committed clear breach of mandate of Section 107 Cr.P.C.”
Of course, it is then stated in para 12 that, “Section 111 Cr.P.C. provides that when a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character and class of sureties (if any) required. These necessary ingredients of Section 111 Cr.P.C. are totally absent in the order dated 8.10.2020 passed by the respondent no.3. Thus, it is evident on record that the respondent no.3 has acted arbitrarily and illegally.”
Most significantly, what forms the cornerstone of this commendable judgment is then envisaged in para 13 as: “It would further be relevant to note that admittedly the petitioners have submitted personal bond on 12.10.2020 although the order passed by the respondent no.3 dated 8.10.2020 does not specify the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any, required. Despite submission of personal bond and other papers on 12.10.2020 by the petitioners before the respondent no.3, they were not released by the respondent no.3 and that too against its own order dated 8.10.2020 that the petitioners shall be detained till presentation of personal bond/bond. Non release of the petitioners by the respondent no.3 even after submission of personal bond/bond and other papers, is a clear breach of Article 21 of the Constitution of India, by the respondent no.3 which resulted in illegal detention of the petitioners at least since 12.10.2020 to 21.10.2020.”
As a corollary, it is then held by the Bench in para 14 that, “The facts, afore-noted, leave no room of doubt that the respondent no.3 has acted arbitrarily and not only failed to discharge his duty cast upon him under Section 107 and 111 Cr.P.C. but also committed breach of Article 14 and 21 of the Constitution of India. Such type of instances need to be stopped by the State Government.”
Needless to say, it would be relevant to mention here that it is then stated in para 15 that, “Learned Additional Advocate General and the Secretary, Home, U.P. Lucknow jointly state that the State Government shall develop a mechanism and shall also issue appropriate guidelines so as to ensure that such instances may not repeat again. They further state that the State Government shall consider to grant monetary compensation to the petitioners for breach of their fundamental rights under Article 21 of the Constitution of India.”
Moving on, the Bench then goes on to hold in para 16 that, “Considering the joint request of the learned Additional Advocate General and the Secretary Home, U.P. Lucknow, as aforenoted, we grant four weeks time to the State Government to take appropriate action in terms of the statement, as afore-noted and file an affidavit of compliance on the next date fixed.”
Now coming to the concluding paras. The Bench then holds in para 17 that, “On the next date fixed, the respondent no.3 shall also file his personal affidavit explaining his conduct, as briefly noted above.” It is then directed in para 18 that, “Put up in the additional cause list on 3.3.2021 for further hearing.” Finally, it is then clarified in para 19 that, “Personal appearance of Secretary Home, U.P. Lucknow, is exempted until further orders.”
In conclusion, the two Judge Bench of the Allahabad High Court comprising of Justice Surya Prakash Kesarwani and Justice Shamim Ahmed makes it amply clear that that keeping a person in custody, despite his furnishing personal bonds as required by the Magistrate is violative of his right to personal liberty guaranteed under Article 21 of the Constitution. The Bench further also clarified that keeping a person in custody, despite fulfillment of conditions contained in the CrPC is violative of Articles 14 and 21 of the Constitution. There can certainly be no denying or disputing it! It is the bounden duty of the police to adhere without fail to the prescribed norms as stated in this brilliant, bold, brief and blunt judgment!
Sanjeev Sirohi