No Person Can Be Arrested Merely Based On Allegations Of Committing A Crime: Bombay High Court On 'Illegal Arrest' of Journalist

No person can be arrested merely because s/he is facing allegations of having committed some offence, the Bombay High Court said recently while holding the arrest of a Thane-based journalist by the Mumbai Police, illegal. It also ordered the Mumbai Police to pay Rs 25,000 compensation to the petitioner. 

A division bench of Justices Revati Mohite-Dere and Prithviraj Chavan noted that the journalist - Abhijit Padale, was arrested under charges of extortion and criminal intimidation, both of which provide for maximum punishment upto four years and three years, respectively.

"The offences alleged against the Petitioner are non-bailable but not punishable with imprisonment of more than seven years, and as such notice under Section 41A ought to have been served on the Petitioner. Even though the notice under Section 41A was allegedly prepared, it was not served upon the Petitioner before arresting him," the judges noted in the August 22 order.

Neither before arresting the Petitioner, were separate reasons recorded by the Police, as to why the Petitioner's arrest was so necessary nor reasons recorded as to why the arrest of the Petitioner was not necessary. The existence of the notice under Section 41A is sufficient to presume that, the arrest of the Petitioner was not at all warranted, the bench noted.

The bench further noted that the petitioner was arrested by the Vakola Police Station in Mumbai under sections 384 (extortion) and 506 (criminal intimidation) of the Indian Penal Code (IPC) on January 15, 2022, within a few hours of the registration of the crime. The judges noted that the petitioner was produced before the Magistrate Court in Andheri on January 16 and the Magistrate noted that the petitioner was arrested in violation of the Arnesh Kumar guidelines and therefore, he was remanded to Magistrate's Custody.

Thereafter, the petitioner, immediately moved a bail application, however, due to the non-availability of the prosecutor, he was kept in custody till January 18, 2022, when the regular Magistrate granted him bail.

"All this, in our considered opinion, was done in a mechanical and casual manner. Thus, said action was in stark violation of the mandates of the CrPC and the guidelines laid down by the Supreme Court in the case of Arnesh Kumar. The said action, ultimately resulted in the Petitioner remaining in Police custody till his production before the Metropolitan Magistrate. This is certainly not legal, meaning thereby, not in accordance with law. Thereafter, the Petitioner had to remain in jail as no A.P.P. was available to offer say to his bail application. Thus, the Petitioner's liberty was curtailed unnecessarily," the bench observed.

The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the Police officers must be able to justify the reasons thereof, the bench made it clear.

"No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a Police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation," the bench underscored.

As held in the case of DK Basu vs. State of West Bengal, the latin maxim 'salus populi est supreme lex' (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community.

"The action of the State, however, must be “right, just and fair”. These basic cautions have been ignored in this case before arresting the Petitioner," the bench opined.

The bench therefore held that the arrest of the Petitioner was not legal.

"Because of the arrest, the Petitioner had to go to jail and wait for bail. This directly deprived the Petitioner of his right to liberty. Therefore, necessary departmental enquiry is essential in the matter by a senior officer," the bench said while suggesting the Commissioner of Police, Mumbai appoint a Deputy Commissioner of Police (DCP), to conduct an inquiry with regard to the arrest of the Petitioner and conduct of the police officers of the Vakola Police Station. 

Appearance:

Advocates Medha Jondhale, Anand Jondhale, Rajnandini Jondhale and Harshvardhan Shinde instructed by Jondhale & Co. appeared for the Petitioner.

Additional Public Prosecutor Prajakta Shinde represented the State.

Case Title: Abhijit Padale vs State of Maharashtra (WP/1197/2022)

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