JUDGMENT
Asok Kumar Ganguly, J.
1. This appeal is directed against the judgment and order dated 8th April, 2003 passed by a learned Judge of the Writ’ Court by which the learned Judge was pleased to accept the conclusions and recommendations of One Man Committee and held that no separate enquiry is called for apart from the one done by the One Man Committee.
2. The writ petition was filed by Smt. Manashi Sinha, wife of late Abhijit Sinha, inter alia, praying for treating the letters of complaint dated 14th July, 2002 and 16th July, 2002 as FIR and to start a case under Sections 120B/365/330/506(ii)/306/448/551 and 455 of the IPO. The main prayer of the writ petitioner before this Court and also before the learned Judge of the Writ Court, is for a direction that this Hon’ble Court should pass an order directing the Central Bureau of Investigation to conduct an investigation in respect of the complaints made by Manashi about the alleged excesses committed by the Police Authorities, while arresting and interrogating her husband and which had led her husband to commit suicide.
3. The relevant facts of the case, which appear from the two complaints made by the appellant, Manashi Sinha, to the Inspector-in-Charge, Dum Dum Police Station are :
Late Abhijit Sinha, Manashi’s husband, was an Inspector of Central Excise and was posted at DD-I State Office at 2, St. Georges Gate Road, Kolkata. On 4th July, 2002 after attending his office, Abhijit Sinha came back in the evening and was staying at his residence. On the night of 4th- 5th July, 2002 at about 1.00 O’clock while Manashi and her husband Abhijit were sleeping in their bedroom, about 15 to 20 persons, some of whom were in plain clothes and some of whom were in uniform carrying arms and ammunitions, came to their residence along with caretaker of the residence. After they rang the bell, Manashi and her husband opened the door. At that time, the persons, who were carrying weapons pointing out at Abhijit, asked him to open the locks of the collapsible gate. After the locks were opened, those persons entered the room and it is alleged that they forcibly dragged Abhijit from the room. Some of those persons entered inside the room and conducted a search into the house but did not get anything. As Abhijit was being taken forcibly out of the residence, Manashi raised the protest and asked for their identity and the ground for arresting Abhijit. Manashi also wanted to know from those officers where they are taking Abhijit. It is also stated in the complaint of Manashi that she wanted a copy of the Arrest Memo but the officers did not pay any heed to her request.
4. Immediately Manashi rang up her father but her father being absent, her mother took up the receiver and Manashi narrated the facts to her. Manashi also came to know that her father was at Baguihati investigating Centre due to some official work and Manashi immediately rang up Baguihati Investigating Centre and told his father, Sri Moloy Kumar Sinha, all about the incident. Moloy Kumar Sinha himself is a Deputy Superintendent of Police, C. I. D. After that, Manashi also rang up his father-in-law, Ashok Kumar Sinha and her husband’s colleagues and some other persons. According to the complaint, made by Manashi, on the next morning i.e. 11.00 O’clock Abhijit came back to the residence along with her father Moloy Kumar Sinha. Manashi was informed by her father that on the night of occurrence police personnel arrested Abhijit from their residence and several other persons were also arrested and were taken to Baguihati Investigating Centre under Rajarhat Police Station for interrogation. The allegation of Manashi is that the police personnel physically and mentally tortured Abhijit in order to extract some confession to the extent that he is actively involved with Peoples’ War Group. According to Manashi, this kind of torture took place in the presence of her father but then with the intervention of her father, the police released him with the direction on Abhijit that he should come again to the Police Officer, Midnapore Police Station for interrogation face to face with the person from whose diary the residential telephone number of Abhijit was found. In her complaint Manashi further stated that during investigation police threatened Abhijit with dire consequences and asked him to confess that he is an active member of TWG’, or he will be ‘hooked’ like anything. Manashi also complained that Abhijit was threatened with imprisonment for life and suspension and dismissal from his services. It was also recorded in her complaint that on 6th July, 2002 the father-in-law of Manashi along with Abhijit went to Midnapore Police Station and came back to the residence. She also stated that she was told by both her father and father-in- law that the concerned persons in whose diary the telephone number of Abhijit was found could not be brought for a face to face meeting with Abhijit. She also stated that on 7th July, 2002 Abhijit went out of the house on the plea of going to Dakshineswar Kali Mondir for worship at 11.30 hours in the morning and on the same day at 5.30 p.m. Manashi received information over telephone from Dum Dum G. R. P. S. that Abhijit committed suicide on railway line near Dum Dum Police Station. In view of the aforesaid facts the complaint of Manashi is that over the entire episode of unlawful arrest by the police party Abhijit was humiliated and was also placed under suffocating situation before his friends and relatives at large and all these compelled Abhijit to commit suicide.
5. In connection with the said complaint which was lodged by Manashi, she wanted an investigation to be carried out by C. B. I. It may, however, be noted that there is no direct prayer for conducting an investigation by the C. B. I. in respect of the allegation lodged by Manashi. One of the prayers in the writ petition was for a mandamus to be issued upon the respondent No. 17 (Joint Director, Central Bureau of Investigation, Eastern Zone) to cause a thorough investigation into the case by taking custodial interrogation of respondent Nos. 6 to 11 and also by considering the limitless grief of Manashi over the pre-mature death of her husband.
6. In connection with the said writ petition an affidavit was filed by one Kailash Chandra Meena, Superintendent of Police, Midnapore. In the said affidavit the details of investigation about the activities of Peoples’ War Group have been stated and it appears that during the course of sustained police interrogation of one Sudip Chongdar who is connected with the activities of Peoples’ War Group, three names were disclosed, those of Kaushik Ganguly, Pintu Ghosh and Abhijit Sinha and in order to verify the veracity of the said statement a team of police officers raided Midnapore and also raided the house of Abhijit Sinha whose telephone number was found in the diary of Sudip Chongdar and whose links with CPI-ML (Peoples’ War Group) have surfaced from the statement of Sudip Chongdar and Partha Sarathi Banerjee. It was stated in the affidavit that at the time of raid, Manashi, wile of Abhijit, was informed the purpose of raid in a courteous manner and that Manashi was allowed to make phone calls to her father and other relatives during the time of raid. It was also stated that Manashi was told that police team intended to take Abhijit to Baguihati Investigation Centre for interrogation in connection with Salbani Police Case No. 37/02 dated 23.06.02. It was also stated that police team supplied a mobile phone to her and she was asked to contact the number mentioned in the mobile phone regarding the movement of the police party and that of her husband. At that time father-in-law of Abhijit, Moloy Sinha, Deputy Superintendent of C. I. D., also came to know of this raid and requested the Addl. S. P, Hd, Qtr. to release Abhijit. Addl. S. P. told Moloy Sinha that police had certain information about Abhijit which were required to be verified and after that he will be released and Moloy Sinha was also asked to come to Baguihati Investigation Centre (I. C). It was also stated in the affidavit that Moloy Sinha had reached Baguihati before the police party reached there and it is also stated that the entire interrogation of Abhijit regarding his link with CPI-ML (PW) was conducted in front of Moloy Sinha. It was also stated in the affidavit that Abhijit Sinha was released at about 11.00 a.m. on 5.7.02 from Baguihati (I/C and was handed over to Moloy Sinha with a request to produce him at Midnapore on the next date i.e. on 6.7,02 at 12.00 hours. On 6.7.02 Abhijit Sinha was produced with Moloy Sinha and Ashok Kumar Sinha, father of Abhijit. Further interrogation of Abhijit took place and during interrogation he denied of having any link with CPI-ML (PW).
7. Abhijit admitted that one of his close friend Kaushik Biswas was a confirmed activist of CPI-ML (PW) and with this disclosure Abhijit was asked to give full address and to help the police for arresting Kaushik. It is further stated in the affidavit that at this juncture Moloy Sinha assured Addl. S. P. Hd. Qtr. that both he and his son-in-law would help the police in arresting Kaushik at the earliest. Thereafter Abhijit Sinha along with his father and father-in-law came back to Calcutta. These statements which were made by the deponent in paragraphs 4(g) and 4(f) of the affidavit-in-opposition were sought to be denied by Manashi in paragraph 8 of the affidavit-in-reply. Apart from the facts that the denials were not specific, the said paragraph 8 has been affirmed by Manashi as her submission. Therefore, there is no proper denial of the averments made in paragraphs 4(0 and 4(g) of the affidavit-in-opposition filed by Kailash Chandra Meena on behalf of the police.
8. The averments made by Meena in paragraphs 4(f) and 4(g) of the affidavit-in-opposition are very vital and if they are not properly denied, as has not been done in this case, those averments by Meena would show that Abhijit was not subjected to any undue police excesses in the course of his interrogation. However, in this case a One-Man Committee was appointed by the State Government and the said One-Man Committee submitted a report. It appears that before the learned Judge of the Writ Court, the said One-Man Committee report was not made over to the learned Counsel for Manashi. This, in our opinion, is not a proper thing to do specially when it is clear that the learned Judge in His Lordship’s judgment relied on the said report. The State did not claim, as possibly it could not claim any privilege in respect of that report. Even then the contents of the report were not made available by any order passed by the learned Judge of the First Court. Such practice has been strongly deprecated by a Division Bench of this Court in the case of Mrinal Kanti Das Burman v. State of West Bengal and Ors., reported in 1976(1) CLJ 571. The controversy in that case was whether the relevant files, which contained the reasons for not holding an enquiry against Mrinal Kanti, should be shown to the learned Counsel for Mrinal Kanti. The learned Advocate General appearing before the Division Bench in Mrinal Kanti submitted that he had no objection to show the relevant files to the Court provided the same were not disclosed to the petitioner’s counsel. On that submission of the learned Advocate General, the Division Bench observed that it declined to peruse the file behind the back of the petitioner as in the opinion of the Division Bench that would be “a flagrant disregard to judicial principles to decide…………on the basis of our personal knowledge about the contents of these files without affording any opportunity to the petitioners to meet the allegations that might have been contained in the files”. Following the said principles we find that the approach of the learned Judge of the First Court was erroneous. When the matter was heard before us we wanted the learned Advocate General to produce the same One-Man Committee report and the learned Advocate General produced the same and we found that the learned Counsel for Abhijit also had a certified copy of the said report and he made his submission by referring to that report. Therefore, before us the findings of the Committee were made known to the learned Counsel for Manashi.
9. In this matter an affidavit has been filed by one Jitendra Nath Das, Assistant Commissioner, Central Excise, Dum Dum – I Division. In the said affidavit Sri Jitendra Nath Das stated in paragraph 7 thereof that the safety and security of the Central Government officers and employees are at stake in West Bengal. It was also stated that no complaint was made against Sri Abhijit Sinha by any department of West Bengal Police to his employer with regard to his acquaintance with Peoples’ War Group and it was also stated in the said affidavit that in the case of such complaint the employer of Abhijit would have caused investigation into the matter either by CBI or by its internal Vigilance Department and proceedings would have been initiated. Thereafter another affidavit was affirmed by one Ananda Kumar Chhabra by way of supplementary affidavit. Sri Chhabra described himself as the Chief Commissioner of Central Excise of Customs, East Zone, Calcutta. In the said affidavit Chhabra deposed that the averments made in the paragraph 7 in the affidavit-in-opposition, affirmed by Sri Das, are not true reflection of the stand of the department. It has also been made clear that so far as the safety and security of the employees of Central Excise and Customs Department in West Bengal is concerned, there is no complaint. Rather there has been full co-operation and assistance from the State Government. It was stated that the stand of the deponent is reflected in his letter dated 10.07.1972. The said letter dated 10.07.1972 was written by Sri Chhabra to the then Joint Secretary of the Government of West Bengal. In that letter the following stand has been taken :
“Please refer to our telephonic talk of yesterday regarding the unfortunate incident of Shri Abhijit Sinha, Inspector of Central Excise, committing suicide, apparently on account of interrogation by the police officers. While right of the security agencies to take appropriate action in certain circumstances cannot be questioned. What is of concern to us is a Senior Executive Officer of the Department was picked up for interrogation at dead of the night and perhaps, as reported in the press, without a search warrant courtesy demanded that the Department would have been informed.
I would be grateful if the enquiry, as already declared by the Government of West Bengal, is completed immediately and the results made known to us. We have no doubt if any security officer is found responsible for acting beyond his jurisdiction, the Government will not hesitate to take suitable action”.
10. The learned Counsel appearing in support of the appellant submitted that the learned Judge of the First Court passed the judgment without recording adequate reasons in support of his decision. It was also submitted that the report of the One-Man Committee was not made available to the learned Counsel for the appellant before the Writ Court but the learned Judge passed his judgment based on the said report. This, as we have already noted, was not proper on the part of the learned Judge. It was also stated that no action has been taken on the FIR lodged by Manashi Sinha and no information has been received by the appellant from the police as to the fate of the complaint made by Manashi. Apart from that it has also been stated that the One-Man Committee did not obtain deposition from any independent eye-witness even though three names were mentioned in the FIR by Manashi. The learned Counsel also submitted that the stand of the respondent that Abhijit was not arrested, is not correct. By not giving any Arrest Memo the fact of arrest cannot be concealed by the respondents. It was also stated that the police officers are liable to be prosecuted under Sections 441 & 442 of the Indian Penal Code and for the offence of house trespass committed by them and also for insulting and annoying the members of the family of Abhijit as has been stated in the FIR lodged by Manashi. Relying on the judgment in the case of D.K. Bose v. State of West Bengal, , the learned Counsel submitted that the police did not follow the guidelines which were given by the Supreme Court in the said judgment. As such, the police officers are liable to be punished for acting in violation of the guidelines contained in the said judgment.
11. Learned Counsel also relied on another judgment of the Apex Court in the case of R.S. Sodhi v. State of U. P. and Ors., , in order to contend that where allegations are levelled against local police, any investigation by the State police will lack credibility and, as such, prayer was made in the writ petition for investigation by CBI. In other words, it was submitted that it is only as a result of CBI enquiry that the truth of police atrocity can be revealed.
12. The learned Advocate General appearing for the State placed reliance on the affidavit filed by Meena which was mentioned above and submitted that the investigation is contemplated in case of a cognizable offence. According to the learned Advocate General no case of cognizable offence has been made out in the FIR lodged by Manashi. The learned Advocate General further stated that over the unnatural death of Abhijit a thorough investigation was made by the Railway Police and the Railway Police has submitted its report. Copy of the said report has been handed over to Court and the copy has also been served on the learned Counsel for appellant. Learned Advocate General also submitted that the unnatural death of Abhijit by committing suicide is most unfortunate but the same cannot be attributed to the interrogation by police. Learned Advocate General also submitted that interrogation of Abhijit was conducted in the presence of his father and father-in-law. The presence of those two close relatives of Abhijit, one of whom himself is a senior police officer, would obviously rule out any infliction of torture or hardship by the police on Abhijit at the time of interrogation. Learned Advocate General also stated that having regard to the urgent nature of investigation which is required in connection with the activities of Peoples’ War Group, police had to enter the residence of Abhijit at the dead of night. But according to the learned Advocate General Abhijit was not arrested. Learned Advocate General further stated that the police officer has right to enter the house of Abhijit in a case of this nature under Section 165 of the Criminal Procedure Code.
13. Learned Advocate General relied on the decision in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., and the learned Advocate General relied on paragraphs 53 and 54 of the said judgment. Paragraphs 53 and 54 of the decision in Bhajan Lal’s case deal with the provisions of Section 157(1) of the Criminal Procedure Code. The learned Judges of the Supreme Court while considering the said section came to the conclusion that the commencement of investigation by a police officer is subject to two conditions. The first of which is that the police officer should have the reasons to suspect the commission of a cognizable offence and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for initiating an investigation even before an investigation into the facts and circumstances of the case, as contemplated under clause (b) of Section 157(1) of the Code, commences. The learned Judges further explained on a reading of sub-clauses (a) and (b) of sub-section (1) of Section 157 of the Code that the police officer must satisfy himself about the sufficiency of the ground even before entering into an investigation. Therefore, at this stage, the police officer is to draw his satisfaction only on the materials which were produced before him on the basis of the First Information Report together with documents, if any, disclosed. Relying on those principles learned Advocate General submitted that in the instant case no irregularity was committed by the police officers by entering the house of Abhijit at the dead of night.
14. The learned Advocate General relied on another judgment in the case of Ramesh Kumar v. State of Chhattisgarh, . The learned Advocate General relied on paragraphs 20 and 21 of the said judgment. It was a case of dowry death in which wife committed suicide within one year of the marriage. Explaining the ingredients which are required in law to constitute an offence under Section 306, the learned Judges explained in paragraph 20 that in order to constitute incitement to do the act of commission of suicide, it is necessary that instigation must necessarily and specifically be suggestive of the consequence and there must be a reasonable certainty to incite the consequence and which must be spelt out. Referring to the facts of that case in Ramesh Kumar the learned Judge held that it cannot be said that by acts and omission or by continued course of conduct the accused created such circumstances that the deceased was left with no other option except to commit suicide. In paragraph 21 of Ramesh Kumar the learned Judge of the Supreme Court relied on the principles laid down by the Supreme Court in the case of State of West Bengal v. Orilal Jaiswal, . The learned Judges referred to the caution sounded in Orilal that the Court should be extremely careful in assessing the facts and circumstances and the offence in each case to find out whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it appears that the victim committing suicide was hypersensitive to ordinary discord and differences in domestic life and such discord or differences will not induce a similarly placed individual to commit suicide, the case of abetting the commission of suicide is not made out.
15. Relying on the aforesaid principles the learned Advocate General said that in this case no case has been made out to connect the commission of suicide by Abhijit with the alleged threats held out by police during interrogation. The learned Advocate General submitted and in our view rightly, that the allegation levelled in the FIR by Manashi, even if taken to be true, do not make out a case against the police officer for abetment to commit suicide.
16. What the learned Advocate General said by relying on Supreme Court judgment was also decided by a learned Single Judge of this Court in the case of Annakali Dutta and Ors. v. State, reported in 1990(2) CHN 38.
17. In Annakali Dutta, the learned Judge held that occasional torture or ill- treatment meted out by a person cannot lead to the conclusion that the person is said to have abetted the commission of suicide. But if someone actively suggests or goads another to the act, by express solicitation, insinuation or encouragement that would amount to abetment of the act.
18. In this case, there is no allegation even in the complaint filed by Manashi that the police officers ever suggested or goaded Abhijit to the act of commission of suicide. The threats which are attributed to the police officers by Manashi in her complaint, assuming they are true, are entirely on different lines and do not make out a case for abetment of suicide. Since no such case is made out in the complaint, no investigation can be directed either by police or CBI as demanded by the appellant.
19. The other details contained in the complaint of the appellant may make out a case under Section 352 of IPC, but the same is non-cognizable. The allegation regarding offence under Section 506(ii) of IPC is also non-cognizable. No case of kidnapping or voluntarily causing hurt to extract confession has been made out in the complaint of Manashi. Abhijit was mostly accompanied by his father/father-in-law in the course of interrogation. There is no allegation of any physical injury being inflicted on Abhijit by the police in the course of their interrogation and there can be no case of kidnapping as Abhijit came home after interrogation with his father-in-law.
20. So there is no case for a further investigation by either the police or CBI on the basis of the complaint by Manashi.
21. But that is not the end of the matter.
22. On the admitted facts and for which no investigation is necessary there is clear evidence of police high-handedness in the name of investigation.
23. In the report of the One-Man Enquiry Committee submitted by Shri Arun Mishra, Special Secretary, Home Department, Government of West Bengal, it has been clearly mentioned that the police of the Paschim Medinipur district picked up and interrogated late Abhijit Sinha on 4/5-07-2002 at night without following the norms in this regard. (P17-18 of the report).
24. In the said report, a clear reference was made to the guidelines framed by the National Human Rights Commission regarding the arrest of a person on the basis of the observation made by the Supreme Court in the case of D.K. Basil and all the State Governments were requested for implementation of those guidelines. It has also been clearly mentioned that the Government of West Bengal adopted the said guidelines and communicated the same to the police administration. Those guidelines impose some conditions and restrictions to be followed by the police during the pre-arrest period. Considering the said guidelines, the One-Man Enquiry Committee specifically came to the following conclusion in the case of late Abhijit. Those conclusions are :
“It appears that such procedures were not observed properly in the instant case. The Committee, therefore, feels that police administration may be advised to strictly follow the guidelines regarding arrest both in letter and spirit”. (Pg 18 of the report)
25. The said One-Man Enquiry Committee further held that before picking up late Abhijit Sinha, the police should have verified certain information by undertaking “some discreet enquiry about their suspected persons”. The said Committee also observed that if such enquiry had been undertaken that would have given the police an opportunity to know that late Abhijit Sinha was an officer of the Central Excise Department under the Government of India and was holding responsible position and commanding social respect and position in society. The Committee came to the conclusion that considering the position of late Abhijit Sinha, there was “little possibility” of his “becoming absconder”. As such, the recommendations, which were given by the said One-Man Committee, criticising the midnight arrest of late Abhijit Sinha, are as follows :
(a) The guideline on arrest as recommended by the NHRC, and adopted by the State Government, should strictly be followed.
(b) The police should hold some discreet enquiry about a person and ascertain his position, prior to making any arrest on the basis of simple suspicion.
(c) Police should be advised to be little more careful about the medical treatment of arrested persons even after they being referred to some referral hospital.
26. It is nobody’s case that late Abhijit Sinha is an absconder or a fugitive from justice. He was a Central Government officer. As such, it was open to the police to approach his employer for the purpose of verification of any information, which they claimed to have collected about late Abhijit Sinha.
27. It has not been explained before us by the learned Advocate General how the interest of investigation would have suffered if the police had gone to the house of late Abhijit Sinha during the normal morning hours instead of conducting a midnight raid by a team of 15 to 20 police personnel, many of whom were armed. Such a midnight police raid in the house of a decent family with no criminal antecedents, unless justified by compelling reasons of police investigation, which do not exist in this case, is by itself an affront to the privacy of the members of the family and also their human rights. By a liberal interpretation, the Supreme Court has read privacy rights into the concept of dignified ‘life’ under Article 21 of the Constitution.
28. It is nobody’s case that late Abhijit Sinha was running away or taking shelter in an unknown hideout or he was changing his address from one place to another to dodge the police. Admittedly, in the absence of these facts, the action of the police in causing the midnight arrest of late Abhijit Sinha and thereby lowering the honour and prestige of the late Abhijit and his family members in the eyes of the neighbours of the building complex in which they were staying and also causing trauma in the minds of both Abhijit and Manashi cannot be disputed .
29. In this connection the observations of the learned Judge in the judgment under appeal, are pertinent. Accepting the recommendations of the One-Man Enquiry Committee, the learned Judge reached the following conclusion :
“There is every reason to believe that at the time of his forcible removal from his residence Abhijit was subjected to humiliation, which caused Abhijit, who had a very sensitive nature, to take the ultimate decision to end his life. As has been mentioned in the report of the One-Man Committee, Abhijit got employment through a tough competitive examination, which only emphasises his serious and competitive spirit. The high esteem in which his family was held by the people of his locality and his forcible removal from his residence by the police at the dead of night within the sight and knowledge of the local people might have caused tremendous mental trauma and anguish to Abhijit”.
30. No cross-objection has been filed by the State Government challenging the findings of the learned Single Judge. Therefore, the high-handedness of the police arresting late Abhijit is clearly established in the facts of this case.
31. The learned Advocate General however submitted that the police did not arrest late Abhijit Sinha. Therefore, there was no requirement to follow the guidelines in the case of D.K. Basu. This argument of the learned Advocate General cannot be accepted by this Court.
32. It is an admitted position that the police picked up and forcibly took late Abhijit out of his residence at the dead of night on 4/5-07-2002 and Abhijit came back to his house only at 11 a.m. on the next morning, i.e. on 05.07.2002. During this period i.e. between midnight of 4/5-07-2002 till 11.00 a.m. of 05.07.2002, the movement of late Abhijit Sinha was totally restricted in view of his arrest by the police authorities. Abhijit was not a free man during the aforesaid hours. It does not matter whether or not police issued any Arrest Memo about Abhijit.
33. Reference in this connection may be made to the decision of the Supreme Court in the case of Directorate of Enforcement v. Deepak Mahajan, .
34. In paragraph 46 of the said judgment, the learned Judges of the Supreme Court were explaining the connotation of the word ‘arrest’ and while doing so, the learned Judges held that arrest signifies restraint on the person. The learned Judges held, after considering various Dictionaries and authorities on the subject when the word ‘arrest’ is used in legal sense in the procedure connected with criminal offences, an arrest ‘consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence’, (page 459, para 46 of the report),
35. Following the aforesaid guidelines, the conclusion is inescapable that late Abhijit Sinha was arrested when he was picked up by the police officer at the dead of night from his residence and the said arrest continued till he returned home next morning at 11 a.m. Therefore, this Court is unable to accept the argument advanced by the learned Advocate General that late Abhijit Sinha was never arrested and there was no occasion to follow the guidelines in the case of D.K. Basu. In fact this argument of the learned Advocate General is contrary to the findings of the One-Man Committee set up by the State Government and whose findings were never challenged by the State.
36. In so far as the guidelines in the case of D.K. Basu are concerned, they virtually have the force of law, as they were formulated by the Hon’ble Supreme Court. These guidelines were given by the Hon’ble Supreme Court after considering various aspects of the matter including the provisions of Article 21 of the Constitution of India. While giving those guidelines the learned Judges made it very clear in paragraph 36 of the report that they are to be followed as preventive measures in “all cases of arrest or detention” till legal provisions are made in that behalf,
37. It is an admitted position that in the instant case, those guidelines have not been followed at all.
38. Therefore, it is difficult for the State Government to contend that the arrest of late Abhijit Sinha was made in a manner, which is consistent with the law laid down by Supreme Court in D. K. Basu’s case and which is consistent with the human right norms. These guidelines laid down by the Supreme Court in D. K. Basu have been accepted by the National Human Right Commission and have been circulated for compliance by all the State Governments including the State of West Bengal.
39. It cannot be disputed that such high-handedness of the police officers in arresting late Abhijit at the dead of night has substantially lowered the social status of late Abhijit as well as his family before the neighbours, relations and office colleagues. Such high-handedness of the police is totally unnecessary and contrary to Supreme Court guidelines. No justification for the same is forthcoming either in the affidavit filed by the police or in the submission of the learned Advocate General. Obviously no justification exists either on facts or in law.
40. As such this Court directs that the State Government must pay compensation of Rs. One lakh to Smt. Manashi Sinha, the appellant, within a period of fortnight from date in view of police high-handedness in effecting the arrest of late Abliijhit Sinha. This monetary compensation may not heal the wound suffered by Manashi, but, this Court is awarding this compensation in view of the fact that this should act as deterrent against the police in future so that similar high-handedness does not recur while dealing with others. Of course, there is no prayer in the writ petition for such compensation. But this Court can always mould the prayers and grant the appropriate relief which servos the ends of justice and are justified in the facts and circumstances of the case. Since the Court is of the view that fundamental right of privacy of Manashi under Article 21 of the Constitution has been invaded, the Court can grant this compensation even in a public law proceeding [See Nilabati Behara v. State of Orissa, .
41. This Court makes it clear that this compensation of Rupees one lakh, which is given to the appellant, Smt. Manashi Sinha, may be accepted by her without prejudice to her rights to initiate, if so advised, appropriate proceeding for damages or other reliefs against the wrong doers before the appropriate forum (See Nilabati, para 34).
42. With the aforesaid direction, the appeal is disposed of.
43. There will be no order as to costs.
Later:
44. Let xerox certified copy of this judgment and order be given to the parties expeditiously, if applied for.
Tapan Kumar Dutt, J.
45. I agree.