STATE OF CHHATTISGARH vs MUKESH KUMAR SAHU - 2024-01-08

O R D E R

Delay condoned.

The respondents were arrested by the first petitioner-State by invoking Clause (d) of Section 41 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’). Essentially, the prayer before the High Court was to release the respondents on bail and to grant them compensation.

The respondents were arrested on 20.02.2021 and were remanded to the judicial custody. When the writ petition was heard on 26.06.2023(more than two years after the respondents were arrested), the petitioners could not produce any material to justify arrest by invoking Clause (d) of Section 41 of CrPC. The paragraph ‘10’ of the impugned order reads thus: -

“The respondents in their return have not come with any particular case that the petitioners were involved in commission of theft or dealing with stolen articles and in the return, nowhere stated that stolen articles were seized from the possession of the petitioners or any person came forward to identify the articles seized from the possession of the petitioners or any person came forward to identify the articles seized from the the petitioners.”

The learned counsel appearing for the petitioners states that, now, there is some material found against the respondents. Clause (d) of Section 41 of the CrPC will apply when there is a reasonable suspicion that the property found with a person is a stolen property. The second condition for the applicability of Clause (d) of Section 41 CrPC is that the person arrested must be reasonably suspected of having committed an offence with reference to the property found in his possession. For a period of two years and more, the petitioners had no material whatsoever with them as held in paragraph ‘10’.

On the face of it, both the conditions precedent for invoking Clause (d) of Section 41 CrPC were not fulfilled when the respondents were arrested. Therefore, the High Court was fully justified in imposing costs of Rs. 1,00,000/- payable to each of the respondents for their illegal arrest. Even assuming that today there is something found against the respondents, it is completely irrelevant as the High Court was concerned with the fact whether the arrest of the respondents was illegal on the date on which they were arrested. Hence, the Special Leave Petition is dismissed. We, however, make it clear that all observations made in the impugned judgment are for limited purposes of coming to the conclusion that the arrest of the respondents blatantly illegal and was in violation of Article 21 of the Constitution of India. This Court has not decided anything on merits of the pending case.

Pending application(s), if any, shall stand disposed of.

(POOJA SHARMA) (AVGV RAMU)

COURT MASTER (SH) COURT MASTER (NSH)