Non-release of individual even after submission of personal bond a clear breach of Article 21: Allahabad High Court

The Allahabad High Court recently took exception to the Police authorities failing to release an accused arrested on apprehensions of a breach of peace despite the submission of personal bond/bond and other papers. .The Court has held that “non release of the petitioners by the respondent (Police authorities) even after submission of personal bond/bond and other papers, is a clear breach of Article 21 of the Constitution of India.”.A Division bench of Justice Surya Prakash Kesarwani and Justice Shamim Ahmed, was dealing with a writ petition which was filed by Rajendra Prasad, Shiv Kumar Verma and Raj Kumar Verma (Petitioners) against the arbitrary and illegal detention by the Police authorities. (Shiv Kumar Verma And Another v. State of UP).The court found that the police authorities acted arbitrarily and not only failed to discharge his duty cast upon him under Section 107 and 111 of the Code of Criminal Procedure (CrPC) but also committed breach of Article 14 and 21 of the Constitution of India.."Such type of instances need to be stopped by the State Government", the Court said. .Background of the dispute.On October 8, 2020, the Petitioners were arrested by the Police under Section 151 of the CrPC (dealing with arrest to prevent the commission of cognizable offences). There was a dispute relating to ancestral property, due to which the arrest was made. .The High Court was told that a ‘Challani Report’ was submitted on October 8 to the SDM, Varanasi, but that the report was in printed form and merely the name of the petitioners and others, name of village and “land dispute” had been written by ink..It was submitted by the Petitioners, that on October 12, 2020, they submitted “personal bond and other papers” but the Police did not release them. Instead, under the pretext of verification, the police directed the file to be placed on October 21, 2020. Before the High Court, the petitioners also sought compensation for the illegal detention between October 12-21, 2020. .Non-compliance of the court’s order.Initially, when the matter was heard on January 13 this year, when the Court directed the Police authorities and the State to file counter affidavit, showing under what circumstances the Challani Report was issued on printed proforma without disclosing any specific reasons.. “They shall also show cause for not obeying the law laid down by this Court in the case of Amit Jani vs. State of U.P. and others, 2020 (112) ACC 574. The respondent no.1 shall also file counter affidavit on the aforesaid, explaining the circumstances with respect to the matter aforementioned and shall also show cause on the point of compensation as prayed by the petitioners", reads the January 13 order further. .When the matter came up January 27, the Police authorities failed to file the counter affidavit as to why they had “issued” the Challani Report without disclosing any reasons. .When it Government Advocate sought further time to file the affidavit, given that the respondent no.3 had proceeded to go on leave on January 26,, the Court retaliated by observing that prima facie, the "respondents are willfully disobeying the orders of this Court."”Under the circumstances, we are left with no option, except to call for personal presence of the respondent no.1, requiring him to show cause as to why exemplary cost may not be imposed for not filing counter affidavit, particularly when the petitioners were admittedly, illegally detained from 12.10.2020 to 21.10.2020", the Court said. .Findings and decision of the court.When the case was taken up on February 2, the Police authorities submitted in their counter affidavit that the petitioners had submitted the applications for release on furnishing personal bonds through their counsel. The police added that the petitioners may be released on bail after the Telsildar verifies the revenue records produced by the sureties. .Rejecting the contentions and justifications of the respondent, the Court came down heavily on him and it was observed that through this counter affidavit “the respondent no.3 has tried to justify his arbitrary action and clear breach of statutory duty cast upon him as well as the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India.”.Further, the court discussed the relevance of Sections 107 and 111, CrPC and held that the authorities had failed to comply with these provisions. Section 107, CrPC required the Magistrate to first require a person "to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace.".Section 111, CrPC says that "when a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing", setting out various aspects. .It was held that “necessary ingredients of Section 111 Cr.P.C. are totally absent in the order dated 8.10.2020 passed by the respondent no.3. Thus, it is evident on record that the respondent no.3 has acted arbitrarily and illegally.”.In the course of the case, a joint request was made by the Additional Advocate General and the Secretary Home, Uttar Pradesh, Lucknow to grant some time to the State to develop a mechanism and to issue appropriate guidelines so as to ensure that such instances may not repeat. .It was also submitted that plea for grant of monetary compensation would be considered by the Government..The Court proceeded to grant the Government four weeks time to take appropriate action in terms of these statements. The matter has been fixed for hearing next on March 3, when an affidavit of compliance is to be submitted by the State. .[READ ORDER]