TMI Blog2011 (9) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... perspective, we regret to note that in the present case, having regard to nature of the complaint against the Appellant and his stature in the community and the fact that admittedly the Appellant was regularly attending the court proceedings, it was not a fit case where non-bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion, the attendance of the Appellant could have been secured by issuing summons or at best by a bailable warrant. We are, therefore, in complete agreement with the High Court that in the facts and circumstances of the case, issuance of non-bailable warrant was manifestly unjustified. It is trite principle of law that in matters involving infringement or deprivation of a fundamental right; abuse of process of law, harassment etc., the courts have ample power to award adequate compensation to an aggrieved person not only to remedy the wrong done to him but also to serve as a deterrent for the wrong doer. Monetary compensation to victim whose fundamental rights under Article 21 are violated - Having considered the case, we are of the opinion that the Appellant does not deserve further monetary compensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; (d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; (e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; (f) No. warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case; (g) A register similar to the one in Clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000, one, Mr. Prem Harchandrai filed a complaint, being C.C. No. 163/P/2000, against the Appellant, a practicing Advocate, under Section 324 of the Indian Penal Code, 1860 (for short the Indian Penal Code ), in relation to some incident alleged to have taken place in the 'Radio Club' at Mumbai, considered to be a club for the elite. When at a preliminary stage, the case came up for hearing before the Additional Chief Metropolitan Magistrate on 7th August, 2002, finding the Appellant to be absent, the Court issued a non-bailable warrant against him returnable on 31st October, 2002. The warrant was forwarded to the Colaba Police Station for execution. However, on 12th August, 2002, on Appellant's putting in an appearance before the Court, the warrant was cancelled. 4. On 15th August, 2002, the complainant approached the Colaba Police Station and insisted on the arrest of the Appellant in pursuance of the said non-bailable warrant. Thereupon, Respondent No. 2, who at that point of time was posted as an Inspector of Police at the Colaba Police Station, directed a constable to accompany the complainant, and execute the warrant. When the Appellant was sought to be arreste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the police officer to tender the necessary apology to the Petitioner for executing such warrant on the holiday, and the concerned officer having failed to tender the apology it apparently shows that he had not performed his duty in the manner he was required to perform as a responsible police officer. Even the affidavit filed by the Respondent No. 2 nowhere discloses any repentance for having executed the warrant which was already cancelled. It is a clear case of unnecessary interference with the liberty of a citizen. 6. Thus, having failed to get the desired relief from the High Court, the Appellant is before us in this appeal. 7. Arguing the case in person, it was strenuously urged by the Appellant that having regard to the nature of offence alleged against him, in the first place, the Additional Chief Metropolitan Magistrate erred in law in issuing non-bailable warrant in a routine manner, without application of mind, merely because the Appellant had failed to appear in court on 7th August 2002. It was asserted that since neither Section 70 nor Section 71 of the Code of Criminal Procedure, 1973 (for short the Code ) uses the expression non-bailable a Magistrate is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same time, there is No. gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty, enshrined in Articles 21 and 22 of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. 12. Viewed in this perspective, we regret to note that in the present case, having regard to nature of the complaint against the Appellant and his stature in the community and the fact that admittedly the Appellant was regularly attending the court proceedings, it was not a fit case where non-bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion, the attendance of the Appellant could have been secured by issuing summons or at best by a bailable warrant. We are, therefore, in complete agreement with the High Court that in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot receive a judicial imprimatur. 14. That takes us to the core issue, namely, whether the Appellant is entitled to any compensation for the humiliation and harassment suffered by him on account of the wrong perpetrated by Respondent No. 2, in addition to what has been awarded by the High Court. As aforesaid, the grievance of the Appellant is that imposition of a fine of ₹ 2,000/- on Respondent No. 2 is grossly inadequate. His prayer is that in addition to an adequate amount of compensation, Respondent No. 2 should also be prosecuted and proceeded against departmentally for his wrongful confinement. 15. It is trite principle of law that in matters involving infringement or deprivation of a fundamental right; abuse of process of law, harassment etc., the courts have ample power to award adequate compensation to an aggrieved person not only to remedy the wrong done to him but also to serve as a deterrent for the wrong doer. 16. In Rudul Sah v. State of Bihar and Anr. (1983) 4 SCC 141, Y.V. Chandrachud, CJ, speaking for a Bench of three learned Judges of this Court had observed thus: One of the telling ways in which the violation of that right can reasonably be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. In the same decision, in his concurring judgment, Dr. A.S. Anand, J. (as His Lordship then was), explaining the scope and purpose of public law proceedings and private law proceedings stated as under: The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undergone on 15th August 2002, some blame lies at his door as well. Being a practicing Advocate himself, the Appellant was fully conversant with the court procedure and, therefore, should have procured a copy of memo/order dated 12th August 2002, whereby the non-bailable warrant was cancelled by the court. As noticed above, admittedly, the Appellant applied and obtained a copy of such order only on 16th August 2002. Though the conduct of Respondent No. 2 in arresting the Appellant, ignoring his plea that the non-bailable warrant issued by the court in a bailable offence had been cancelled, deserves to be deplored, yet, strictly speaking the action of Respondent No. 2 in detaining the Appellant on the strength of the warrant in his possession, perhaps motivated, cannot be said to be per se without the authority of law. In that view of the matter, in our opinion, No. other action against Respondent No. 2 is warranted. He has been sufficiently reprimanded. 21. The last issue raised that remains to be considered is whether the Courts can at all issue a warrant, called a non-bailable warrant because No. such terminology is found in the Code as well as in Form 2 of the Second Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be appropriate to issue the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts: (a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No. 2 for issuing warrant of arrest and each such form is duly accounted for; (b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant; (c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; (d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; (e) Every Court must maintain a register (in the format given below), in which ..... 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