In the High Court of Kerala at Ernakulam
Petitioner
Shyam Balakrishan
Respondent
State of Kerala
Date of Judgement
22nd May, 2015
Bench
Muhamed Mustaque, J
Facts of the Case
1. Petitioner was taken into custody by Anti Naxalite Force Kerala Police while travelling by motor cycle. He was taken to the police station; he was body searched and interrogated by a Deputy Superintendent of Police. Petitioner’s house was raided by the police and his belongings, such as a laptop and mobile phone were seized.
2. Petitioner was arrested under the belief that he is a Maoist but on finding no evidence to link petitioner to Maoist activity or any other illegal activity, petitioner was released without recording arrest.
3. Petitioner approached the High Court seeking compensation by filing writ petition for illegal detention by the police and also seeking departmental action against the police personnel.
Issues Raised
1. What was the purpose of police for taking the petitioner in the jeep to the Police Station?
2. If the action of the police is not arrest, what else is it? What is an arrest as understood in law?
Ratio Decidendi
A. Chapter V of the Code of Criminal Procedure lays down the provisions for arrest. Section 41 of Chapter V of the Code of Criminal Procedure provides the power to the police to arrest a person without an order from a Magistrate which 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 to arrest any person-
(a) Who commits, in the presence of a police officer, a cognizable offence;
(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) The police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(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
(e) As unless such person is arrested, his presence in the Court whenever required cannot be ensured……..”
B. The direction in cases of arrest or detention set out in K Basu v State of West Bengal is to followed. [AIR 1997 SC 610]. According to this case, an arrest or detention must follow the following requirements: clear and visible identification of police personnel; preparation of a memo of arrest countersigned by the arrestee; information of a relative of the arrestee; communication of the place, time and venue of custody; notification of rights; inscription in the diary of the place of detention, medical inspection of the arrestee; legal representation; copies of all documents to the Magistrate; and inscription of the arrest on a police board.
C. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
D. The Article 9(5) of the International Covenant on Civil and Political Rights, 1966. Article 9(5) reads as follows: –
“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
E. According to Article 22 of Constitution of India Compensation should be paid by the State to the petitioner for illegal arrest. Which gives the High Court ample power under Article to direct the State to pay compensation for illegal arrest.
Judgement
- The court was of the view that the petitioner is ought to be compensated as the State failed to create adequate supervisory oversight mechanism to safeguard deprivation of liberty of individuals. The Police wrongfully detained the petitioner and stated that it was for his safety. This argument of the police was feeble and quite difficult to believe.
- The Police could not comply with the provisions of arrest given in the Code of civil Procedure Code. Flouting any of the norms prescribed under the Code for arrest would itself result in deprivation of liberty. Hence arresting the petitioner was wrongful.
- The learned Single Judge held that to be a Maoist sympathiser is not a crime and unless the police forms a reasonable opinion that activities of a citizen are illegal, his personal liberty cannot be curtailed on the ground that he is a Maoist.
- The writ Petition was disposed of by directing the state to pay a sum of Rs. 1,00,000/- (Rupees one lakh only) as compensation to the petitioner within a period of two months. The State shall also pay the costs of the litigation at Rs. 10,000/- along with the compensation quantified.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
