IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8354 of 2006 SANJAY KUMAR SON OF LATE BISHWANATH PRASAD @ MUNNA SAO @ MUNNA PRASAD, RESIDENT OF MOHALLA- BALIPUR, ‘PIPAL TAL’, BARH, POLICE STATION- BARH, DISTRICT- PATNA :---PETITIONER. Versus 1.THE STATE OF BIHAR 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE SENIOR SUPERINTENDENT OF POLICE, PATNA. 4. THE DEPUTY SUPERINTENDFENT OF POLICE, BARH, PATNA. 5. THE OFFICER-IN-CHARGE, BARH POLICE STATION, BARH, DISTRICT- PATNA :---RESPONDENTS. ----------- For the petitioner : M/S Sushil Kumar Singh, Vivek Kumar Singh & Sunil Kumar Singh, Advocates. For the State : Mr. S.D. Sanjay, A.A.G.-12. Mr. Gopal Prasad Gupta, A.C. to A.A.G.-12. ======= 3. 12.05.2011. Heard learned counsel for the petitioner and the State. 2. This writ petition has been filed for a direction to the respondents to suitably compensate the petitioner for his illegal arrest and detention in connection with R.P.F. Patna 2(9) 89 dated 09.09.1989 registered for the offence under Section 3 of the R.P.U.P. Act and G.R.P. Patna Case No. 428 of 2004 registered for the offence under Sections 379, 411 of the Penal Code. It is submitted that petitioner was initially taken in custody in connection with R.P.F. Patna 2(9)89 on 25.08.2003 by Sri Arjun Rai, Officer-in-Charge, Barh Police Station although it was submitted by the petitioner at the time of his arrest that he is not required in the said case as the said case was registered on 09.09.1989 when he was hardly three years old, his date of birth being 12.2.1986 could not have been accused in the said case and the warrant on the basis of which he is being arrested in the said case has been issued 2 against Lallu Sao, son of late Munna Sao. It is submitted on behalf of the petitioner that aforesaid plea was not only raised by the petitioner but also by his mother and other family members present at the time of his arrest. Aforesaid plea was also raised before superior police officer(s) by his mother and others but the officers present at the time of the arrest as also the superior police officers before whom such plea was taken never took cognizance of such plea and produced the petitioner before Railway Judicial Magistrate for being remanded to jail custody. Aforesaid submission that petitioner is neither the accused in the said case nor warrantee Lallu Sao, son of late Munna Sao was also raised before the Railway Judicial Magistrate, Patna before whom petitioner was produced for being remanded to jail custody. In the light of the submission raised by the petitioner Railway Judicial Magistrate, Patna directed the superior police officers under letter dated 08.09.2003, 17.10.2003 to enquire into the matter. In the light of the direction of the Railway Judicial Magistrate, Patna Sub-Divisional Police Officer, Barh submitted report bearing Memo No. 2230 dated 22.10.2003 to Senior Superintendent of Police, Patna, Annexure-2. Close perusal of the report of the Dy. S.P. indicate that thereunder the Dy. S.P. fairly admitted that the officer arresting the petitioner (S.I. Arjun Rai) admitted before him that warrant of arrest on the basis of which petitioner was arrested was issued by the Railway Court for apprehending the son of deceased scrap dealer Munna Sao whose name is perhaps Lallu Sao or Sanjay and petitioner was identified and arrested as Lallu Sao 3 on the statement of the neighbours. Having arrested the petitioner S.I. Arjun Rai wrote on the back of the warrant that his father is alive. The report also indicate that A.S.I. Arjun Rai assessed the age of the petitioner at the time of his arrest around 20 years. The report further indicated that petitioner was 17-19 years old and at the time of occurrence his age was hardly 3-4 years old. Appreciating the contents of the report dated 22.10.2003, Annexure-2 and being satisfied that petitioner was not Lallu Sao, son of late Munna Sao for whose arrest the warrant was issued the Railway Judicial Magistrate directed for the release of the petitioner under orders dated 06.11.2003 on furnishing personal bond of Rs. 10,000/-. In the same case i.e. R.P.F. Patna 2(9) 89 petitioner was again arrested by A.S.I. Ramchandra Prasad on 19.08.2005 again treating him to be Lallu Sao whereafter he filed Cr.W.J.C.No. 568 of 2005 praying, inter alia for issue of writ of habeas corpus and the Division Bench of this Court under orders dated 09.09.2005, Annexure-3 directed for his release in connection with R.P.F. Patna 2(9) 89 forthwith and further observed that petitioner is at liberty to raise the question of compensation before the appropriate forum. Inspite of the aforesaid order dated 09.09.2005, Annexure-3 petitioner was not released forthwith whereafter his Pairvikar made further enquiry and learnt that after the arrest of the petitioner in connection with R.P.F. Patna 2(9) 89 on 19.08.2005 he was also remanded in connection with G.R.P. Patna Case No. 428 of 2004 registered for the offence under Sections 379, 411 of the Penal Code. Having come to learn about his remand in 4 G.R.P. Patna Case No. 428 of 2004 petitioner filed Cr.W.J.C.No. 644 of 2005 asserting that his remand in the said case is also on the basis of the mistaken identity as Lallu Sao, son of Munna Sao but such remand is wholly without jurisdiction as petitioner is son of Bishwanath Prasad and has no connection with Lallu Sao, son of Munna Sao, accused of G.R.P. Patna Case No. 428 of 2004. 3. This Court having noticed the aforesaid submission under orders dated 05.10.2005 passed in Cr.W.J.C.No. 644 of 2005, Annexure-5 directed the petitioner to assert the fact before the learned Railway Judicial Magistrate, Patna that his arrest in G.R.P. Patna Case No. 428 of 2004 is on account of mistake of identity as the accused of the said case Lallu Sao, son of Munna Sao has no connection with the petitioner. In compliance of the order of the High Court dated 05.10.2005, Annexure-5 petitioner approached the Railway Judicial Magistrate, Patna who sought a report from the Sub-Divisional Police Officer, Barh about the identity of the petitioner and the accused of G.R.P. Patna Case No. 428 of 2004. In the light of the instruction of the Railway Judicial Magistrate, Patna report bearing Memo No. 3489 dated 01.12.2005, Annexure-A to the counter affidavit was submitted by the Sub-Divisional Police Officer, Barh in which it was specifically stated that during the enquiry the Sub- Divisional Police Officer, Barh learnt that name of father of the petitioner is late Bishwanath Prasad @ Munna Sao @ Munna Prasad. None of the persons examined during the enquiry, however, confirmed that the alias name of the petitioner 5 Sanjay Kumar is Lallu Sao. The report further disclosed that two years earlier also petitioner was arrested by the Railway Police as stolen articles were recovered from his scrap shop. In the concluding paragraph of the report clear finding has been recorded that petitioner was arrested in connection with G.R.P. Patna Case No. 428 of 2004 and R.P.F. Patna 2(9) 89 by S.I. Ram Chandra Prasad of Barh P.S. on the basis of warrant of arrest although the said warrant was issued in the name of Lallu Sao, son of Munna Sao, resident of Barh market. In the light of the report dated 01.12.2005 the Railway Judicial Magistrate considered the question of identity of the petitioner and his arrest in connection with the aforesaid two cases under orders dated 07.12.2005, Annexure-6 and after being satisfied that petitioner was erroneously taken in custody in the two cases on 19.08.2005 as also after observing that Munna Sao accused of the aforesaid two cases is aged over 30 years and petitioner is less than 20 years directed his release on furnishing personal bond of Rs. 10,000/-. 4. This petition has been filed asserting that petitioner has been harassed twice by arresting him in connection with the two cases although neither warrant of arrest was issued against him nor he was an accused in those cases which is established from the report of the Sub- Divisional Police Officer, Barh dated 22.10.2003 and 01.12.2005, Annexure-2 and A to the counter affidavit. 5. It is submitted on behalf of the petitioner that by arresting the petitioner twice without there being any case registered against him not only his right to life and liberty, as 6 enshrined in Article 21 of the Constitution of India, has been violated but also his reputation as an honest citizen has been tarnished for ever. According to the counsel for the petitioner if the reputation of a citizen is tarnished it is tarnished to his detriment for ever. Stigma attached to the personality and reputation of the individual is even worse than depriving him of his life. He further submitted that reputation of the individual is also to be read as another facet of right to life and liberty. In this connection learned counsel for the petitioner has brought to my notice the provisions of Rule 142 of the Bihar Chowkidari Manual and Rule 112 of the Bihar Police Manual which, inter alia, require the officer proceeding to arrest a warrantee is to take assistance of the local Dafadar and Chowkidar for identifying the warrantee. It is submitted that had Sri Arjun Rai on the first occasion and Sri Ram Chandra Prasad on the second occasion taken the precaution of going along with a local Chowkidar for arresting Lallu Sao, son of Late Munna Sao, petitioner would have been saved of the ignominy of arrest on both occasions. In this background it is submitted that by arresting the petitioner on two occasion his reputation having been damaged which is difficult to be salvaged, as such, this Court relying on the judgment of the Supreme Court in the case of Bhim Singh, MLA Vs. State of J. & K. and others, reported in A.I.R. 1986, Supreme Court 494 should direct for payment of suitable compensation as by arresting the petitioner on two occasions without ascertaining the fact that petitioner is the warrantee Lallu Sao son of late Munna Sao, the officer effecting the arrest has acted in an 7 arbitrary manner misusing the police powers contained in Section 41 of the Cr.P.C. 6. Counsel for the State has opposed the prayer made in the writ petition and submitted that as petitioner has been released on bond in the two cases and the trial being still pending the prayer for payment of compensation made before this Court is wholly misconceived and petitioner should have been well advised to first secure his acquittal in the aforesaid two cases and thereafter to apply for compensation and damages before the Civil Court of competent jurisdiction. In this connection it is further submitted that it is difficult for this Court to record a finding that petitioner is Sanjay Kumar, Son of Bishwanath Prasad and not Lallu Sao, son of late Munna Sao as petitioner while signing the arrest memo has himself signed the arrest memo on the two occasions as Lallu Sao, son of Late Munna Sao. In this connection learned counsel further pointed out the averments made in Paragraphs 10-14 of the writ petition and 3,4 of the counter affidavit to buttress his submission that the prayer made in the writ petition does not proceed on the basis of the admitted facts and as there is dispute about the identity of the petitioner as to whether petitioner is Sanjay Kumar, son of Bishwanath Prasad or Lallu Sao, son of Late Munna Sao this Court should reject the prayer for grant of compensation. Learned counsel for the State further submitted that case of Bhim Singh (Supra) shall have no application to the facts of the present case as in the said case after arrest Bhim Singh, an opposition M.L.A. was not produced before the Magistrate violating his 8 constitutional right under sub-clause (4) of Article 22 which require production of the arrestee within 24 hours and for such violation the Supreme Court ordered compensation. Petitioner having been produced before the Railway Judicial Magistrate, Patna within 24 hours of his arrest on both the occasions this Court should reject the prayer for compensation. Learned counsel also cited two other judgments of the Supreme Court in the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Smt. Sukamani Das and another, reported in A.I.R. 1999 Supreme Court 3412 paragraphs 3,4 and 6 and Tamil Nadu Electricity Board Vs. Sumathi and others, reported in A.I.R. 2000 Supreme Court 1603 paragraphs 6,9,8 and 11. Perusal of the aforesaid two judgments of the Hon’ble Supreme Court indicate that thereunder the request of the dependent of the person who suffered electrocution for payment of compensation was rejected on the ground that before directing for payment of compensation no report was submitted by the competent Electrical Inspector in the matter that the death on account of electrocution was on account of act of God or negligence of the authorities. Such being not the case in hand those two judgments have hardly any application to the facts of the case. 7. In rejoinder counsel for the petitioner further submitted that the contention of the authorities that petitioner signed the arrest-memo as Lallu Sao, son of Late Munna Sao and on such ground this petition for payment of compensation be rejected is wholly misconceived as petitioner asserted before 9 the learned Railway Judicial Magistrate at the time of his production that he has been illegally arrested treating him to be Lallu Sao, son of Late Munna Sao and appreciating such contention the learned Railway Judicial Magistrate had ordered the Dy. S.P., Barh to make enquiry in the matter and after conducting the enquiry report bearing Letter No. 2230 dated 22.10.2003, Annexure-2 was submitted on the first occasion and another report dated 01.12.2005, Annexure-A to the counter affidavit was submitted on the second occasion. From the aforesaid two reports it is quite evident that there is no dispute about the fact that warrant of arrest was issued against Lallu Sao, son of late Munna Sao on the first occasion and against Lallu Sao, son of Munna Sao on the second occasion. The warrant on the basis of which petitioner was arrested was never issued against Sanjay Kumar, son of Bishwanath Prasad @ Munna Sao @ Munna Prasad, as such, there is no substance in the submission of the learned counsel for the State that there is disputed question of fact involved in the matter. Pendency of the trial is for adjudicating the charge levelled against Lallu Sao, son of Late Munna Sao and not to fix the identity of the petitioner as from the two reports submitted by the Dy.S.P., Sub-Divisional Police Officer, Barh dated 22.10.2003 and 01.12.2005 it is quite evident that petitioner is Sanjay Kumar, son of Late Bishwanath Prasad @ Munna Sao @ Munna Prasad and he was arrested on the two occasions on the basis of warrant of arrest issued against Lallu Sao, son of late Munna Sao on the first occasion and Lallu Sao, son of Munna Sao on the second occasion. Having 10 considered Section 41 of the Cr.P.C. and Rule 112 of the Police Manual and 142 of the Chowkidari Manual, I am of the view that before proceeding to arrest Lallu Sao, son of Late Munna Sao, the warrantee the officers attached to the Barh Police Station should have been well advised to take the assistance of the local Chowkidar so as to enable the arresting police officer to identify the accused against whom the warrant stood issued i.e. Lallu Sao, son of Late Munna Sao. Had such precaution been taken by Sri Arjun Rai on the first occasion and Sri Ram Chandra Prasad on the second occasion, arrest of the petitioner could have been avoided because no warrant of arrest stood issued against him. The factum of illegal arrest of the petitioner has been confirmed by Dy. S.P., Barh in his report dated 22.10.2003, Annexure-2 and report dated 01.12.2005, Annexure-A to the counter affidavit on the basis of which the Railway Judicial Magistrate, Patna released the petitioner under orders dated 06.11.2003 and 07.12.2005, Annexure-6 on furnishing personal bond of Rs. 10,000/-. By securing release from his illegal custody petitioner has obtained freedom from illegal custody but by such release his reputation which was damaged on account of his illegal arrest on the previous two occasions can not be salvaged. Any amount of monetary compensation may not be sufficient to salvage the reputation of the petitioner which has been damaged for ever and he has to carry the stigma of an arrestee throughout his life that too without any warrant of arrest issued against him. Such situation has come to passé only because of the arbitrary exercise of power by Sri Arjun Rai, 11 A.S.I., Barh Police Station on the first occasion i.e. on 25.08.2003 and by Sri Ram Chandra Prasad, another A.S.I. of Barh Police Station on the second occasion when he arrested the petitioner on 19.08.2005. Considering the arbitrary action on the part of the police officers posted in the Barh Police Station, I direct the State-respondents to pay token compensation of Rs. One lac to the petitioner as early as possible, in any case within a period of two months of the receipt of a copy of this order before the Home Commissioner, Bihar. It is made clear that the amount of compensation paid to the petitioner be recovered from the two police officers by initiating proceeding against them as to how they could arrest the petitioner on the basis of a warrant which was issued against Lallu Sao, son of Late Munna Sao on the first occasion and on the second occasion in the name of Lallu Sao, son of Munna Sao. 8. The writ application is, accordingly, allowed. A.F.R. P.K.P. (V.N.Sinha,J.)