Violation of rights and wrongful detention

Order on Board

Per Ramesh Sinha , Chief Justice

19.03 .2024

1. Heard Mr. Dharmesh Shrivastava, learned counsel for the petitioner. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State/respondents No. 1 to 3/State.

2. The present writ petition has been filed by the petitioner with the following prayers:

“10.1That, this Hon’ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner for kind perusal of this Hon’ble Court.

10.2 That, this Hon’ble Court may kindly be pleased to pass an order whereby the police authorities/State may kindly be directed to pay the petitioner a sum of Rs. 5,00,000/- as compensation for mental harassment and illegal detention from 14.08.2023

10.3 That, this Hon’ble Court may kindly be pleased to pass an order to initiate contempt proceedings against the respondents for committing contempt of the Court by willfully disobeying the order passed by the Hon’ble Supreme Court.

10.4 That, any other writs and direction which this Hon’ble Court deems fit and just in the fact and circumstances of the case be granted to the petitioner. 10.5 That, the cost of the petition may kindly be awarded in favour of the petitioner.”

3. The present writ petition is being filed against the act of the respondent authorities particularly respondents No. 4 & 5 who arrested the petitioner for an offence under Section 201 (Crime No. 482/23 under Section 302 and 201, 34) of the IPC and there is no provision of authorization detention to the person arrested under bailable offence and the Magistrate has also no power to reject the bail application by applying his discretion in an application under Section 436 of Code of Criminal Procedure. It is further case of the petitioner that the police willfully and deliberately by-passed the mandate of Hon'ble Supreme Court in the matter of Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273 and thus the right of life and liberty of the petitioner enshrined under Article 21 of the Constitute of India has been violated. Thus, the respondent authorities not only sent the petitioner behind bar illegally, but also failure to comply with the directions. 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 this Court having territorial jurisdiction and the petitioner is entitled to get appropriate compensation.

4. Brief facts necessary for disposal of this writ petition are that the petitioner was arrested by the police of Out Post - Manikpur, Police Station Kotwali Korba, District Korba (C.G.) along with other co-accused persons namely Madhur Kumar Sahu and Kaushal Kumar Shriwas for an offence punishable under Section 302 and 201/34 of the Indian Penal Code. A missing report was registered as 02/2019 for missing of a lady namely Salma Sultana D/o M.D. Manik, aged about 26 years, R/o In front of M-299, Vikas Nagar, Kusmunda, Police Station Kusmunda, District Korba (C.G.) by the police and thereafter, investigation was initiated. After investigation remand papers submitted by the police for getting remand of the accused persons before the learned Judicial Magistrate First Class, Korba. It reveals that co-accused persons namely Madhur Kumar Sahu and Kaushal Kumar Shriwas committed an offence whereby they committed murder of missing person Salma Sultana by strangulation, thereafter, they called their friend namely Atul Sharma/present petitioner for causing disappearance of evidence of offence and thereafter, the dead body was buried by them.

5. As per the prosecution story, the present petitioner was involved in commission of an offence under Section 201 of Indian Penal Code as he was called by other co-accused persons for causing disappearance of evidence after committing murder of the victim and such section is bailable, therefore, the present petitioner filed an application under Section 436 of the CrPC for t