DR. RINI JOHAR & ANR. versus STATE OF M.P. & ORS.
[2016] 5 S.C.R. 579, Supreme Court of India, 2016
Outcome: Case Allowed (Granted)
Segment: Ratio
[2016] 5 S.C.R. S79 
579 
DR. RINI JOHAR & ANR. 
A 
v. 
STATE OF M.P. & ORS. 
(Writ Petition (Criminal) No. 30 of2015) 
JUNE 03, 2016 
B 
[DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.) 
Constitution of India: 
Arts. 21 and 32 - Complaint against two ladies-petitioners (a 
doctor and a practicing advocate) - FIR registered against them u/ 
s. 42() rlw s. 34 !PC and uls. 66-D of Information Technology Act 
(IT Act) - Arrest of the petitioners - Later they were enlarged on 
bail - Complaint of petitioners against a police official for demand 
and acceptance of bribe from them - Initiation of criminal 
proceedings against the erring police officials - They also alleged 
violations of provision ulss. 41-A to 41-C Cr.P.C -
In the inquiry 
into the allegations, found that procedure for arrest not followed -
In petitioners' application for discharge, Magistrate discharged them 
uls. 66-D of IT Act and continued proceedings uls. 66-A {b) of IT 
Act r/w s. 420134 !PC - Present writ petition - Held: Arrest of the 
petitioners was not made by following the procedure of arrest as 
enshrined u/ss. 41 and 41-A Cr.P. C - Their liberty was curtailed in 
violation of law - The manner in which the petitioners were treated 
by the police team has seriously jeopardized their dignity violating 
Art. 21 of the Constitution - Compensation of Rs. 5 lakhs is granted 
to each of the petitioners for their suffering and humiliation - The 
criminal proceedings against the petitioners are also liable to be
quashed as the dispute is purely of civil nature - No ingredient uls. 
420 !PC is made out and s. 66-A of IT Act has been struck down 
being violative of Art. 19(l)(a) of Constitution - Code of Criminal 
Procedure, 1973 - ss. 41 and 41A - Penal Code, 1860 - s. 420 rlw. 
s. 34 - Information Technology Act, 1995 - s. 66-A. 
Art. 32 - Writ Petition - Alleging violation of procedure of 
arrest and curtailment of liberty - Maintainability of - Held: 
Initiation of disciplinary proceeding or criminal prosecution should 
not be impediment in deciding violation of such rights. 
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Remedy - Public Law Remedy -Applicability of- Held: When 
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the Jnvestigatillg Officer flouts the law, public law remedy comes 
into play. 
Allowing the petition, the Court 
HELD: L Initiation of a disciplinary proceeding or criminal 
prosecution should not be an impediment for delineation as 
regards the violation of procedure of arrest and curtailment of 
liberty. Therefore, it cannot be said that the matter cannot be 
adjudicated as the State Government had already conducted an 
enquiry with regard to the conduct of police officials and initiated 
proceedings against the 3"1 respondent. (Para 11)(580-C-DJ 
2.1 On scrutiny of the enquiry report, it is quite vivid that 
the arrest of the petitioners was not made by following the 
procedure of arrest. Section 41-A CR.P.C has not been followed. 
The report clearly shows there have been number of violations 
in the arrest, and seizure. Circumstances in no case justify the 
manner in which the petitioners were treated. [Para 2211595-A-
B) 
Joginder Kumar v. State of U.P.. (1994) 4 SCC 260; 
D.K. Basu v. State of W.B. (1997) 1 SCC 416 : 1996 
(10) Suppl. SCR 284; Nilabati Behera v. State of Orissa 
(1993) 2 SCC 746 : 1993 (2) SCR 581; State of MP. l' 
Shyamsunder Trivedi (1995) 4 SCC 262 : 1995 (1) 
Suppl. SCR 44; Amesh Kumar v. State of Bihar and 
Anr. (2014) 8 SCC 273 : 2014 (8) SCR 128 - relied 
on. 
2.2 The two ladies have been arrested without following 
the
procedure and put in the compartment ofa train without being 
produced before the local Magistrate from Pone to Bhopal. The 
dignity of the petitioners, a doctor and a practicing Advocate has 
been seriously jeopardized. Dignity, is the quintessential quality 
of a personality, for it is a highly cherished value. It is also clear 
that liberty of the petitioner was curtailed in violation of law. The 
freedom of an individual has its sanctity. When the individual 
liberty is curtailed in an unlawful manner, the victim is likely to 
feel more anguished, agonized, shaken, perturbed, disillusioned 
and emotionally torn. It is an assault on his/her identity. The
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
581 
said identity is sacrosanct under the Constitution. Therefore, 
A 
for curtailment ofliberty, requisite norms are to be followed. (Para 
23J(595-C-F) 
Charu Khurana v. Union of India (2015) 1 SCC 192 
: 2014 (12) SCR 259 - relied on. 
2.3 The officers of the State had played with the liberty of 
the petitioners and, in a way, experimented with it. Law does not 
countenance such kind of experiments as that causes trauma and 
pain. [Para 25]1596-BJ 
Mehmood Nayyar Azam v. State of Chhattisgarh .(2012) 
-~ SCC 1 : 2012 (8) SCR 651 - relied on. 
2.4 In the present case, there has been violation of Article 
21 and the petitioners were compelled to face humiliation. They 
have been treated with an attitude of insensibility. Not only there 
are violation of guidelines issued in the case of * D.K. Basu, there 
are also flagrant violation of mandate of law enshrined under 
Section 41 and Section 41-A of CrPC. The investigating officers 
in nc circumstances can flout the law with brazen proclivity. In 
such a situation, the public law remedy comes into play. The 
constitutional courts taking note of suffering and humiliation are 
entitled to grant compensation. That has been regarded as a 
redeeming feature. (Para 27)(597-B-D) 
D.K. Basu v. State of W.B. (1997) 1 SCC 416 : 1996 
(10) Suppl. SCR 284; Sube Singh v. State of Haryana 
(2006) 3 SCC 178 : 2006 (2) SCR 67; Hardeep Singh 
v. State of MP. (2012) 1 SCC 748 - relied on. 
2.5 In
the present case taking into consideration -the totality 
of facts and circumstances, it is appropriate to grant a sum of 
Rs.5,00,000/- (rupees five lakhs only) towards compensation to 
each of the petitioners to be paid by the State of M.P. It will be 
open to the State to proceed against the erring officials, if so 
advised. [Para 27)(597-D-E] 
3.1 The Magistrate has found existence of prima facie case 
for the offences punishable under Section 420 IPC and Section 
66-A(b) of I.T. Act, 2000 read with Section 34 IPC. Section 66-A 
of th2 I.T. Act, 2000 is not applicable as Section 66-A of the I.T. 
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Act, 20(10 has been struck down in its entirety being violative of 
Article 19(l)(a) and not saved under Article 19(2) in **Slireya 
Singlla/ case. On perusal of the FIR, it is clear that the dispute is 
purely of a civil nature, but a maladroit effort has been made to 
give it a criminal colour. No ingredient of Section 420 IPC is 
remotely attracted. Even if it is a wrong, the complainant has to 
take recourse to civil action. The case in hand does not fall in 
the categories where cognizance of the offence can be taken by 
the court and the petitioners can be asked to face trial. [Paras 28 
and 29)(597-G-H; 598-A-B,E) 
Shreya Singhal v. Union of India (2015) 5 SCC 1 : 
2015 (5) SCR 963; Devendra v. State of U.P. (2009) 7 
sec 495 : 2009 (7) SCR 872 - relied on. 
3.2 Therefore, the proceedings initiated against the 
petitioners at the instance of the 81h respondent are quashed and 
the order negativing the prayer for discharge of the petitioners 
is set aside. [Para 29)[598-F) 
State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 
335 : 1990 (3) Suppl. SCR 259 - relied on. 
Case Law Reference 
(1994) 4 sec 260 
relied on 
Para 16 
1996 (10) Suppl. SCR 284 
relied on 
Para 18 
1993 (2) SCR 581 
relied on 
Para 18 
1995 (1) Suppl. SCR 44 
relied on 
Para 18 
2014 (8) SCR 128 
relied on 
Para 19 
2014 (12) SCR 259 
relied on 
Para 23 
2012 (8) SCR 651 
relied on 
Para 25 
2006 (2) SCR 67 
relied on 
Para 27
(2012) 1 sec 748 
relied on 
Para27 
2015 (5) SCR 963 
relied on 
Para 28 
2009 (7) SCR 872 
relied on 
Para28 
1990 (3) Suppl. SCR 259 
relied on 
Para 29
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
583 
CRIMINAL ORIGINAL JURISDICTION: Writ Petition 
A 
(Criminal) No. 30of2015. 
Under Article 32 of the Constitution of India. 
Petitioner-In-person. 
Yashank Adhyaru, Ms. V. Mohana, Sr. Advs., Sunil Fernandes 
(A.C.), Ms. Sadhana Sandhu, Ms. Rashmi Malhotra, B. Ragunath, R. 
R. Rajesh, D. S. Mahra, Ms. Sushma Suri, Ashwani Kumar Dubey, 
Mish:a Saurabh, Ankit Kr. Lal, Niraj Sharma, Sumit Kumar Sharma, 
Ms. Astha Sharma, Puneeth K. G., Advs. for the Respondents. 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. I. The petitioner no. I is a doctor and she is 
presently pursuing higher studies in United States of America (USA). 
She runs an NGO meant to provide services for South Asian Abused 
Women in USA. Petitioner no.2, a septuagenarian lady, is a practicing 
Advocate in the District Court at Pune for last 36 years. Petitioner no. I 
is associated with M/s. Progen, a US company. 
2. As the facts would unveil, the informant, respondent no.8 herein, 
had sent an email to the company for purchase of machine Aura Cam, 
6000, which is an Aura Imaging Equipment, in India and the concerned 
company sent an email to the respondent making a reference to the 
petitibner no. I. Thereafter, the said respondent sent an email asking her 
to send the address where he could meet her and have details for making 
payment. He also expressed his interest to become a distributor. 
3. The informant visited the petitioner no. I at Pune
and received 
a demo of Aura Cam 6000 and being satisfied decided to purchase a 
lesser price machine i.e. "Twinaura Pro" for a total sum ofRs.2,54,800/ 
-. He paid a sum ofRs.2,50,000/- for which a hatld written receipt was 
given as the proof of payment. During the course of the said meeting, 
the 81h respondent expressed his desire to purchase a laptop of Mis. 
Progen of which the petitioner no. I was the representative. In pursuance 
of the discussion, the laptop was given to him who ac;knowledged it by 
stating that he owed a sum ofRs.4,800/- as balance consideration towards 
the Aura Cam and an amount of USD 350 towards the laptop. An 
assurance was given for remitting the money within a short time. As 
averred, the respondent no.8 had never raised any grievance relating 
either to the machine or the laptop. Certain transactions between the 
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informant and the US company have been mentioned and the allegations 
have bet:n made against the 8'11 respondent that he represented himself 
as the sole distributor in India which was brought to the notice of the 
concerned police in the State ofM.P. by the competent authority of the 
company. The said facts really do not have much relevance to the !is 
which we are going to adjudicate in the present writ petition. 
4. When the matter stood thus, therespondent no.8 filed a complaint 
before the Inspector General of Police, Cyber Cell, Bhopal alleging that 
the petitioner no.I and Mr. Guy Coggin had committed fraud of US 
I 0,500. On the basis of the complaint made, FIR no. 24/2012 under 
Section 420 and 34 of the Indian Penal Code (!PC) and Section 66-D of 
the Information Technology Act, 2000 (for brevity, 'the Act') was 
registered against the petitioners by Cyber Police Headquarters, Bhopal, 
M.P. The respondent no.2, l.G. CyberCell, issued an order on 20.11.2012 
which is to the following effect:-
"Cyber state police having registered FIR 24/2012 under S 
420, 34 of Indian Penal Code and 66 D of IT Act search 
and information the undersigned persons are asked to go to 
Pune. 
I. R.R. Devendra Sisodia 
2. R.R. (Lady) lshrat Praveen Khan 
3. RR (Lady) Valari Upadhyay" 
5. On 21.11.2012, Dy. S.P. State Cyber Police, Bhopal proceeded 
to pass the following order:-
' 
"Cyber state police having registered
FIR 24/2012 under S 
420, 34 Indian Penal Code and S 66 D ofIT Act accused 
Rini Johar and Gulshan Johar should be arrested and for 
that lady constable Ishrat Khan has been deputed with case 
diary with address from where they are to be found and 
arrested and it is. ordered that they be brought to Bhopal. 
In reference to which you have been given possession of 
the said case diary." 
6. We have reproduced the said orders in entirety as the same 
has immense relevance to the relief sought for by the petitioners. 
7. As the narration would unfurl, on 27.11.2012, the petitioners 
were arrested from their residence at Pune. Various assertions have 
been made as regards the legality of the arrest which cover the spectrum
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
[DIPAK MISRA, J.] 
of non-presence of the witnesses at the time of arrest of the petitioners, 
non-mentioning of date, and arrest by unauthorized officers, etc. It is 
also asserted after they were arrested, they were taken from Pune to 
Bhopal in an unreserved railway compartment marked - 'viklang' 
(handicapped). Despite request, the petitioner no.2, an old lady, was not 
taken to a doctor, and was compelled to lie on the cold floor of the train 
compartment without any food and water. Indignified treatment and the 
humiiiation faced by the petitioners have been mentioned in great detail. 
On 28.11.2012, they were produced before the learned Magistrate at 
Bhopal and the petitioner no. 2 was enlarged on bail after being in custody 
for about 17 days and the petitioner no. I was released after more than 
three weeks. There is allegation that they were forced to pay Rs.5 
lakhs to respondent no.3, Deepak Thakur, Dy. S.P. Cyber Cell, Bhopal. 
On 18.12.2012, chargesheet was filed and thereafter a petition under 
Section 482 CrPC has been filed before the High Court for quashment 
of the FIR. 
8. At this stage, it is pertinent to state that on 19.2.2015 the 
petitioners filed an application for discharge and the learned Magistrate 
passed an order discharging the petitioners in respect of the offence 
punishable under Section 66-D of the Act. However, learned Magistrate 
has opined that there is prima facie case for the offence
punishable 
under Section 66-A(b) of the Act read with Section 420 and 34 of the 
IPC. 
9. Ordinarily, we would have asked the petitioners to pursue their 
remedy before the High Court. But, a disturbing one, petitioners while 
appearing in person, agonizingly submitted that this Court should look 
into the manner in which they have been arrested, how the norms fixed 
by this Court have been flagrantly violated and how their dignity has 
been sullied permitting the atrocities to reign. It was urged that if this 
Court is prima fade satisfied that violations are absolutely impermissible 
in law, they would be entitled to compensation. 
That apart, it was 
contended that no case is made out against them and the order of 
discharge is wholly unsustainable. Regard being had to the said 
submission, we appointed Mr. Sunil Fernandes asAmicus Curiae to assist 
the Court. 
I 0. In this writ petition, first we shall address to the challenge 
relating to the validity and legality of arrest, advert to the aspect whether 
the petitioners would be entitled to any compensation on the bedrock of 
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public law remedy and thereafter finally to the justifiability of the 
continuance of the criminal proceedings. Be it stated here that this 
Court on 7.12.2015, taking note of the submissions of the petitioners that 
they are not interested to prosecute their petition under Section 482 Cr PC 
directed that the said petition is deemed to have been disposed of. It is 
also requisite to note here that despite efforts being made by the 
petitioners as well as the State ofM.P, respondent no.8, who belongs to 
Jabalpur, M.P. could not be served. This Court is inclined to infer that 
the said respondent is really not interested to appear and contest. 
11. As stated earlier, first we shall advert to the legality of arrest 
and detention. Mr. Saurabh Mishra, learned counsel appearing for the 
State of M .P. has submitted that as the State Government had already 
conducted an enquiry in this regard and initiated proceedings against the 
3'd respondent, the matter should not be adjudicated at this stage. We 
are not disposed to accept the said submission, for initiation of a 
disciplinary proceeding or criminal prosecution should not be an 
impediment for delineation as regards the violation of procedure of arrest 
and curtailment ofliberty. 
1 :l. We consider it imperative to refer to the enquiry made by the 
State and the findings arrived at by the enquiry officer. It is asserted in 
the counter affidavit that the
petitioners had made a complaint to the 
Lokayukta Police (M.P. Special Police Establishment) alleging that 
Deepak Thakur, respondent no.3 herein, demanded a bribe of Rs. 10 
lakhs f01 letting them go and pursuant to the said demand, initially a sum 
of Rs.2,50,000/- was paid and subsequently a sum of Rs.2,50,000/- was 
also given. The Lokayukta Police had already registered a preliminary 
enquiry no. 33/2015 and after enquiry submitted an enquiry report dated 
18.6.2015 stating that prima facie case had been made out against Deepak 
Thakur, Dy. S.P., Cyber Cell, Bhopal, Ishrat Khan, Head Constable, 
Cyber Cell, Bhopal, Inderpal, Writer, Cyber Cell Bhopal and Saurabh 
Bhat, Ch.:rk, Cyber Cell, Bhopal under Section 13( 1 )( d) and Section 13(2) 
of the Prevention of Corruption Act, 1988 and Section 120B !PC. Based 
on the said preliminary enquiry report, FIR No. 273/2015 dated 27.3.2015 
has been registered against the accused persons in respect of the said 
offences and further steps under the CrPC are being taken. 
Be it 
clarifi~d, we are not at all concerned with the launching of said prosecution 
and accordingly we shall not advert to the same. 
13. It is perceivable thnt the State in it~ in ifri I affidavit had stated
DR. RJNI JOHAR & ANR. v. STATE OF M.P. & ORS. 
[DIPAK MISRA, .I.] 
that the Director General of Police by its order dated 8.7.2015 had 
appointed Inspector General of Police, CID to enquire into the allegations 
as regards the violation of the provisions enshrined under Section 41-A 
to 41-C ofCrPC. It needs to be stated here that in pursuance of the 
order passed by the Director General, an enquiry has been conducted 
by Inspector General of Police Administration, CID, Bhopal. It has 
been styled as "preliminary enquiry". The said report dated 19.08.2015 
has been brought on record. The Inquiring Authority has recorded the 
statement of Ms. Ishrat Praveen Khan. The part of her statement reads 
as follows:-
" ... When I received the order, I requested DSP Shri 
Deepak Thakur that I was not in the District Police Force. 
I do not have any knowledge about IPC/Cr.P.C./Police 
Regulation/Police Act and Evidence Act, IT Act as I have 
not obtained any training in Police Training School, nor do I 
have any knowledge in this regard, nor do I have any 
knowledge to fill up the seizure memo and arrest memo. 
Even after the request, DSP Shri Deepak Thakur asked in 
strict word that I must follow the order. The duty certificate 
was granted to me on 26.11.2012, on which Report No.567 
time 16.30 was registered, in which there are clear 
directions. In compliance with this order, we reached 
Kondwa Police Station in Pune Maharashtra on 27.11.2012 
with my team and 2 constables and I
woman constable 
were sentto assist us from there. The persons of the police 
station Kondwa came to know reaching Lulla Nagar that 
the said area does not fall under their police station area so 
the police ofKondwa phoning Banwari Police Station got 
to bring the force for help Banwari Police Station. I had 
· given the written application in PS Banwari. The entire 
team reached the house of Rini Johar and 01 laptop of Dell 
Company and I data card of Reliance Company were seized. 
Rini Johar called her mother Gulshan Johar from the Court 
furnishing information to her about her custody. Thereafter, 
Shri Rini Johar had called up the Inspector General of Police, 
State Cyber Police Shri Anil Kumar Gupta. I and my team 
had taken Miss Rini Johar and Smt. Gulshan in our custody. 
I and Constable Miss Hemlata Jharbare conduced robe 
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search of Miss Rini Johar and Smt. Gulshan Johar. Nothing 
was found on their body." 
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14. He has also recorded the stl)tement ofDevender Sisodia, Ms. 
Vallari Upadhyay, Ms. Hemlata Jharbare and thereafter recorded his 
findings. The findings arrived at in the preliminary enquiry read thus:-
"24. Finding of the preliminary inquiry:- It was found during 
the preliminary enquiry that Crime No.24/12 had been 
registered after the inquiry of one written complaint of the 
applicant Shri Vikram Raj put, but this complaint inquiry report 
during the investigation of the offence has been kept as the 
relevant evidence. The crime was registered on 27.11.2012 
uPder Section 420, 34 !PC read with Section 660 IT Act, 
2000 against the named accused persons. The offence 
was to the effect that though the alleged accused persons 
obtained Rs.5.00 lakh, they did not supply the camera etc 
and they supplied the defective articles. This sale -
purchase was conducted through the on line correspondence, 
due to which the section of IT Act was imposed. It ~as 
found on the preliminary inquiry that Shri Vikram Rajput 
gave the payment ofRs.2.50 lakh by the bank draft and the 
remaining payment by cash. The facts of the payment and 
supply are now disputed and the trial of Crime No.24/12 is 
pending in the competent Court. Therefore, to give any 
inquiry finding on it would not be proper. It is clear from 
the documents attached to
the case diary and the statement 
of Shri Deepak Thakur that Shri Deepak Thakur sent 2 
notices respectively by the post and through the Deputy 
C0mmissioner, Economic Crime and Cyber Pune 
respectively to Miss Rini Johar on 01.06.2012 and 
02.07.2012 in the investigation of the offence, butthey did 
not appear before the Investigator. It has not been written 
above both the notices if the notice has been issued under 
Srction 41A ofCr.P.C. It is also not clear whether or not 
these both notices were severed to Miss Rini Johar. 
25. This case is related to the alleged cheating between 
two persons in respect of sale and purchase of goods. The 
maximum sentence in Section 420 is the period upto 7 years 
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ar.d similarly when the reasons mentioned in Section 41
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
fDIPAK MISRA, J.l 
(I )(B) are not found, the suspects of the crime should be 
made to appear for the interrogation in the investigation 
issuing notice to them. Justice Late Krishna Ayyer has 
held in Jolly George Varghese v. Bank ofCochin 1 that "No 
one shall be imprisoned merely on the ground of inability to 
fulfill a contractual obligation". Section 41 (2) of Cr.P.C. 
grants power to the Investigator that if the suspect does 
not appear for the investigation despite the notice, he can 
be arrested, though this reason having been mentio11ed in 
the case diary should have been produced before the 
Magistrate, but no reason forthe a1Test has been mentioned 
in the case diary. No notice has been sent to the old woman 
Smt. Gulshan Johar (aged about 70 years), nor has she 
played any role in committing any offence. Only the draft 
of Rs.2.50 lakh had been deposited in her account. No 
binding ground has been mentioned in respect of her arrest 
in the case diary." 
Andagain:-
"28.lt has not been mentioned anywhere in the arrest memo 
and case diary that the information of the arrest of both 
women was furnished to any of their relatives and friends. 
It has become clear from the statements that when both 
the women were arrested physically they were brought to 
PS Banwari Pune, where the arrest memo was prepared. 
There is the signature of Shri Amo I Shetty as the witness 
of the seizure memo. Shri Deepak Thakur has stated in
his 
statement that the handwriting ofthe seizure memo is of 
the constable Shri Indrapal. Shri Indrapal did not go as a 
member of the arresting persons to Pune. The seizure memo 
does not have the signature of Amo I Shetty as well, which 
proves prima facie that the seizure memo was not prepared 
on 27.11.2012 in Pune. The report no.29112 dated 
27.11.2012 of seeking police help in PS Banwari is recorded, 
but no information is recorded at the police station that MP 
Police are taking by arresting these citizens with them. As 
a result, the information of the arrested persons was neither 
furnished in the District Police Control Room Pune, nor 
I AIR 1980 SC 470 
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was it pub! ished there. It has also been clarified in the 
preliminary inquiry that the accused persons after they were 
arrested were not produced before the Local Judge and 
they were brought to Bhopal by rail. Miss lshrat Khan 
stated that she did n:it obtain the rai I warrant of neither the 
policepersons nor the accused during return due to paucity 
of time." 
And finally:-
" As such, the facts of arresting both the suspected women 
and making seizure memo searching their houses not fully 
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following the procedure of arrest by the Investigator and 
police team have come to the fore in the preliminary enquiry 
prima facie." 
15. Keeping the aforesaid facts in view, we may refer to the 
decisions in the field and the submissions canvassed by Mr. Fernandes, 
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learned :\micus Curiae. 
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16. In Joginder Kumar v. Stale of U.P.1 while considering the 
misuse of police power of arrest, it has been opined:-
"No arrest can be made because it is lawful for the police 
officer to do so. The existence of the power to arrest is one 
thing. The justification for the exercise of it is quite another. 
.. No arrest should be made without a reasonable 
satisfaction reached after some investigation as to the 
gc.nuineness and bona tides of a complaint and a reasonable 
belief both as to the person's complicity and even so as to 
the need to effect arrest. Denying a person of his liberty is 
a serious matter." 
17. In the
said case, the Court also voiced its concern regarding 
complaints of human rights pre and after arrests and in that context 
observed:-
"The horizon of human rights is expanding. At the same 
time, the crime rate is also increasing. Of late, this Court 
has been receiving complaints about violations of human 
rights because of indiscriminate arrests. How are we to 
strike a balance between the two? 
'(1994) 4 sec 260
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
fDIPAK MISRA, J.l 
A realistic approach should be made in this direction. The 
law of arrest is one of balancing individual rights, liberties 
and privileges, on the one hand, and individual duties, 
obligations and responsibilities on the other; of weighing 
and balancing the rights, liberties and privileges of the single 
individual and those of individuals collectively; of simply 
deciding what is wanted and where to put the weight and 
the emphasis; of deciding which comes first- the criminal 
or society, the law violator or the law abider .... " 
After so stating, certain procedural requirements were set down. 
18. In D.K. Basu v. State of W.B. ;, after referring to the authorities 
in Joginder Kumar (supra), Nil<tbati Beltera v. State of Oriss«' and 
State of M.P. v. S/1yamsunder Trivedi5 the Court laid down certain 
guidelines to be followed in cases of arrest and detention till legal provisions 
are made in that behalf as preventive measures. The said guidelines 
read as follows:-
"(I) The police personnel carrying out the arrest and handling 
the interrogation of the arrestee should bear accurate, visible 
and clear identification and name tags with their designations. 
The particulars of all such police personnel who handle 
interrogation of the arrestee must be recorded in a register. 
(2) That the police officer carrying out the arrest of the 
arrestee shal I prepare a memo of arrest at the time of arrest 
and such
memo shall be attested by at least one witness, 
who may either be a member of the family of the arrestee 
or a respectable person of the locality from where the arrest 
is made. It shall also be countersigned by the arrestee and 
shall contain the time and date of arrest. 
(3)A person who has been arrested or detained and is being 
held in custody in a police station or interrogation centre or 
other lock-up, shall be entitled to have one friend or relative 
• or other person known to him or having interest in his welfare 
'(1997) 1 sec 416 
'(1993) 2 sec 746 
'(1995) 4 sec 262 
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A 
being informed, as soon as practicable, that he has been 
arrested and is being detained atthe particular place, unless 
the attesting witness of the memo of arrest is himself such 
a friend or a relative of the arrestee. 
(4) The time, place of arrest and venue of custody of an 
B 
arrestee must be notified by the police where the next friend 
or relative of the arrestee lives outside the district or town 
through the Legal Aid Organisation in the District and the 
police station of the area concerned telegraphically within 
a period of 8 to 12 hours after the arrest. 
C 
(5) The person arrested must be made aware of this right 
to have someone informed of his arrest or detention as soon 
as he is put under arrest or is detained. 
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(6) An entry must be made in the diary at the place of 
detention regardingthe arrest of the person which shall also 
disclose the name of the next friend of the person who has 
bren informed of the arrest and the names and particulars 
of the police officials in whose custody the arrestee is. 
(7) The arrestee should, where he so requests, be also 
examined at the time of his arrest and major and minor 
injuries, if any present on his/her body, must be recorded at 
that time. The "Inspection Memo" must be signed both by 
the arrestee and the police officer effecting the arrest and 
its copy provided to the arrestee. 
(8) The arrestee should be subjected to medical examination 
by a
trained doctor every 48 hours during his detention in 
custody by a doctor on the panel of approved doctors 
appointed by Director, Health Services of the State or Union 
Territory concerned. Director, Health Services should 
prepare such a panel for all tehsils and districts as well. 
(9) Copies ofall the documents including the memo ofarrest, 
referred to above, should be sent to the Illaqa Magistrate 
for his record. 
(10) The arrestee may be permitted to meet his lawyer 
during interrogation, though not throughoutthe interrogation.
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
fDIPAK MISRA, J.l 
(11) A police control room should be provided at all district 
and State headquarters, where information regarding the 
arrest a1id the place of custody of the arrestee shall be 
communicated by the officer causing the arrest, within 12 
hours of effecting the arrest and at the police control room 
it should be displayed on a conspicuous notice board." 
19. Mr. Fernandes, learned Amicus Curiae, in a tabular chart has 
pointed that none of the requirements had been complied with. Various 
reasons have been ascribed for the same. On a scrutiny of enquiry 
report and the factual assertions made, it is limpid that some of the 
guidelines have been violated. It is strenuously urged by Mr. Fernandes 
that Section 66-A(b) of the Information Technology Act, 2000 provides 
maximum sentence of three years and Section 420 CrPC stipulates 
sentence ofseven years and, therefore, it was absolutely imperative on 
the part of the arresting authority to comply with the procedure postulated 
in Section 41-A of the Code of Criminal Procedure. The Court in Arneslt 
Kumar v. State o.f Biltar aml mwtlter6, while dwelling upon the concept 
of arrest, Was compelled to observe thus:-
" Arrest brings humiliation, curtails freedom and casts scars 
forever. Lawmakers know it so also the police. There is a 
battle between the lawmakers and the police and it seems 
that the police has not learnt its lesson: the lesson implicit 
and
embodied in CrPC. It has not come out of its colonial 
image despite six decades of Independence, it is largely 
considered as a tool of harassment, oppression and surely 
not considered a friend of public. The need for caution in 
exercising the drastic power ofarrest has been emphasised 
time and again by the courts but has not yielded desired 
result. Power to arrest greatly contributes to its arrogance 
so also the failure of the Magistracy to check it. Not only 
this, the power of arrest is one of the lucrative sources of 
police corruption. The attitude to arrest first and then 
proceed with the rest is despicable. It has become a handy 
tool to the police officers who lack sensitivity or act with 
oblique motive." 
20. Thereafter, the Court referred to Section 41 CrPC and 
'(2014) s sec 273 
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analyzing the said provision, opined that a person accused of an offence 
punishable with imprisonment for a term which may be less than seven 
years or which may extend to seven years with or without fine, cannot 
be arrested by the police officer only on his satisfaction that such person 
had committed the offence. It has been further held that a police officer 
before arrest, in such cases has to be further satisfied that such arrest is 
necessary to prevent such person from committing any further offence; 
or for proper investigation of the case; or to prevent the accused from 
causing the evidence of the offence to disappear; or tampering with 
such evidence in any manner; or to prevent such person from making 
any indt.cement, threat or promise to a witness so as to dissuade him 
from disclosing such facts to the court or the police officer; or unless 
such accused person is arrested, his presence in the court whenever 
required cannot be ensured. These are the conclusions, which one may 
reach based on facts. Eventually, the Court was compelled to state:-
"ln pith and core, the police officer before arrest must put 
a question to himself, why arrest? Is it really required? What 
purpose it will serve? What object it will achieve? It is only 
after these questions are addressed and one or the other 
conditions as enumerated above is satisfied, the power of 
arrest needs to be exercised. In fine,
before arrest first the 
police officers should have reason to believe on the basis 
of information and material that the accused has committed 
the offence. Apart from this, the police officer has to be 
satisfied further that the arrest is necessary for one or the 
more purposes envisaged by sub-clauses (a) to (e) of clause 
(I ) of Section 41 Cr PC." 
21. In the said authority, Section 41-A CrPC, which has been 
inserted by Section 6 of the Code of Criminal Procedure (Amendment) 
Act, 2008 (5 of 2009) was introduced and in that context, it has been 
held tha! Section 41-A CrPC makes it clear that where the arrest of a 
person is not required under Section 41 (1) CrPC, the police officer is 
required to issue notice directing the accused to appear before him at a 
specified place and time. Law obliges such an accused to appear before 
the police officer and it further mandates that if such an accused complies 
with the terms ofnotice he shall not be arrested, unless for reasons to be 
recorded, the police officer is of the opinion that the arrest is necessary. 
At this s!age also, the condition precedent for arrest as envisaged under
DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS. 
fDIPAK MISRA, J.] 
Section 4 I CrPC has to be complied and shall be subject to the same 
scrutiny by the Magistrate as aforesaid. 
22. We have referred to the enquiry report and the legal position 
prevalent in the field. On a studied scrutiny of the report, it is quite vivid 
that the arrest of the petitioners was not made by following the procedure 
of arrest. Section 4 I-A CRPC as has been interpreted by this Court has 
not b.:en followed. The report clearly shows there have been number of 
violations in the arrest, and seizure. Circumstances in no case justify the 
manner in which the petitioners were treated. 
23. In such a situation, we are inclined to think that the dignity of 
the petitioners, a doctor and a practicing Advocate has been seriously 
jeopardized. Dignity, as has been held in Cltaru Klturana v. Union of 
India\ is the quintessential quality of a personality, for it is a highly 
cherished value. It is also clear that liberty of the petitioner was curtailed 
in violation oflaw. The freedom of an individual has its sanctity. When 
the individual liberty is curtailed in an unlawful manner, the victim is 
likely to feel more anguished, agonized, shaken, perturbed, disillusioned 
and emotionally tom. It is an assault on his/her identity. The said identity 
is sacmsanct under the Constitution. Therefore, for curtailment ofliberty, 
requisite norms are to be followed. Fidelity to statutory safeguards instil 
faith
of the collective in the system. It does not require wisdom of a 
seer to visualize that for some invisible reason, an attempt has been 
made to corrode the procedural safeguards which are meant to sustain 
the sanguinity of liberty. The investigating agency, as it seems, has put 
its sense of accountability to law on the ventilator. The two ladies have 
been arrested without following the procedure and put in the compartment 
ofa train without being produced before the local Magistrate from Pune 
to Bhopal. One need not be Argus - eyed to perceive the same. Its 
visibility is as clear as the cloudless noon day. It would not be erroneous 
to say that the enthusiastic investigating agency had totally forgotten the 
golden words of Benjamin Disraeli: 
,, 
"I repeat .... that all power is a trust - that we are 
accountable for its exercise - that, from the people and for 
the people, all springs and all must exist." 
24. We are compelled to say so as liberty which is basically the 
splendor of beauty of I ife and bliss of growth, cannot be allowed to be 
1 (2015) 1 sec 192 
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frozen in such a contrived winter. That would tantamount to comatosing 
of Iibertf which is the. strongest pillar of democracy. 
2~. Having held thus, we shall proceed to the facet of grant of 
compensation,. The officers of the State had played with the liberty of 
the petitioners and, in a way, experimented with it. Law does not 
countenance such kind of experilJlents as that causes trauma and pain. 
In Mehmood Nayyar Azam v. State of Chhattisgarh8, while dealing 
with the harassment in custody, deliberating on the concept of harassment, 
the Court stated thus:-
":Z2. At this juncture, it becomes absolutely necessary to 
appreciate what is meant by the term "harassment". In P. 
Ramanatha Aiyar's Law Lexicon, 2nd Edn., the term 
"harass" has been defined thus: 
"Harass.-'lnjure' and 'injury' are words having numerous 
and comprehensive popular meanings, as well as having a 
legal import. A line may be drawn between these words 
and the word 'harass', excluding the latter from being 
comprehendeq within the word 'injure' or 'injury'. The 
· synonyms of 'harass' are: to weary, tire, perplex, distress 
tease; vex, molest, trouble, disturb. They all have relation to 
mental annoyance, and a troubling of the spirit." 
The term "harassment" in its connotative expanse includes 
torment and vexation. The term ''torture" also engulfs the 
concept of torment. The word ''torture" in its denotative 
concept includes
mental and psychological harassment. The 
accused in custody can be put .under tremendous 
psychological pressure by cruel, inh.uman _and degrading 
tr~atment." 
26. In the said case, emphasizing on dignity, it has been observed:-
" ..... The majesty oflaw protects the dignity ofa citizen in 
a society governed by law. It cannot be forgotten that the 
welfare State is governed by the rule of law which has 
paramountcy. It has been said by Edward Biggon ''the laws 
of a nation form the most instructive portion of its history". 
The Constitution as the organic law Of the land has unfolded 
• t2012) i1 sec 1
/ 
,' 
~-
DR, RINI JOHAR & ANR. v. STATE OF M:P. & ORS. 
597 
[DIPAK MISRA, J.] 
itself in a manifold manner like a living organism in the 
A 
various decisions of the court about the rights of a person 
under Article 21 of the.Constitution oflndia. When citizenry 
rights are sometimes dashed against and pushed back by 
the members of City Halls, there has to be a rebound and 
when the rebound takes place, Article 21 of the Constitution 
B 
springs up to action as a protector .... " 
" 
27. In the case at hand, there has been violation of Article 21 and 
the petitioners were compelled to face humiliation. They have been 
treated with an attitude of insensibility. Not only there are violation of 
guidelines issued in the case of D.K. Bas11 (supra), there are also flagrant c 
viola•ion of mandate oflaw enshrined under Section 41 and Section 41-
A ofCrPC. The investigating officers in no circumstances can flout the 
law with brazen proclivity. In such a situation, the public law remedy 
which has been postulated in Nilawati Beflra (supra); S11be Singh v. 
State of Haryana•, Hardeep Siagfl v. State of M.P. 10, comes into play. 
The constitutional courts taking note of suffering and humiliation are 
D 
.entitled to grant compensation. That has been regarded as a redeeming 
feature. In the case at hand, taking into consideration the totality of 
facts and circumstances, we think it appropriate to grant a sum of 
Rs.5,:J0,000/- (rupees five lakhs only) towards compensation to each
of 
the petitioners to be paid by the State ofM.P. within three months hence. 
It wilfbe open to the State to proceed against the erring officials, if so 
f. 
advised. 
· 28. The controversy does not end here. Mr. Fernandes, learned 
. 
Amicus Curiae would urge that it was a case for discharge but the trial 
court failed to appreciate the factual matrix· in proper perspective. As 
F 
the matter remained pending in this court for some time, and we had 
dealt .with other aspects, we tl10ught it apt to hear the learned counsel 
for the aspect of continuance of the criminal prosecution. We have 
11arra.ted the facts at the beginning. The learned Magistrate by order 
dated 19.2.2015 has found existence of prima facie case for the offences 
punishable under Section 420 IPC and Section 66-A(b) ofl.T. Act, 2000 
~ 
read with Section 34 IPC. It is submitted by Mr. Fernandes that Section 
·- 66-A of the I.T. Act, 2000 is not applicable. The submission need not 
detain us any further, for Section 66-A of the J.T. Act, 2000 has been 
.' 12006) J sec 11s 
"(2012) 1 sec 7~8 
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struck down in its entirety being violative of Article 19(1)(a) and not 
saved ur.der Article 19(2) in S/1reya Singllal v. Union of India''. The 
· only offence, therefore, that remains is Section 420 !PC. The learned 
Magistrate has recorded a finding that there has been no impersonation. 
However, he has opined that there are some material to show that the 
petitioners had intention to cheat. On a perusal of the FIR, it is clear to 
us that the dispute is purely of a civil nature, but a maladroit effort has 
been made to give it a criminal colour. In Deven<lra v. State of U.P. '~, 
it has be~n held thus:-
"·: it is now well settled that the High Court ordinarily would 
exercise its jurisdiction under Section 482 of the Code of 
Criminal Procedure if the allegations made in the first 
infonn~tion report, even if given face value and taken to be 
correct in their entirety, do not make out any offence. When 
the allegations made in the first information report or the 
evidences collected during investigation do not satisfy the 
ingredients of an offence, the superior courts wou Id not 
encourage harassment of a person in a criminal court for 
ncthing". 
29. In the present case, it can be stated with certitude that no 
ingredient of Section 420 JPC is remotely attracted. Even if it is a wrong, 
the comrilainant has to take recourse to civil action. The case in hand 
does not fall in the categories where
cognizance of the offence can be 
taken by the court and the accused can be asked to face trial. Jn our 
considered opinion, the entire case projects a civil dispute and nothing 
else. Therefore, invoking the principle laid down in State of Hary<ma v. 
Blzajan La/13, we quash the proceedings initiated at the instance of the 
8th respondent and set aside the order negativing the prayer for discharge 
of the acGused persons. The prosecution initiated against the petitioners 
stands quashed. 
30. Consequently, the writ petition is allowed to the extent indicated 
above. There shall be no order as to costs. 
Kalpana K. Tripathy 
Writ Petition allowed. 
11 (2015) 5 sec 1 
" (2009) 7 sec 495 
" 1992 Supp. (I) sec 335