LAGGERE v. SRI. R. ANIL KUMAR, ADV., FOR R8)

Sri.B.A.Belliappa, learned State Public Prosecutor-I along with Sri.Thejesh P, learned High Court Government Pleader for the respondents No.1 to 7 submits that the detenue was arrested on 17.10.2025 in Crime No.185/2025 registered by Gangammanagudi police station as is arrayed as accused No.1 for the offences punishable under Section 25(1B)(B) of the Arms Act, 1959. It is submitted that the sealed cover report as ordered by the Court is placed and the said report indicates that the detenue was in the police station on 14.10.2025. Hence, he seeks to pass appropriate orders.

5. Sri.D.R.Ravishankar, learned Senior counsel appearing for the respondent No.8 submits that the detenue is an accused in a crime registered by the respondent No.4- Gangammanagudi police and overcome the said proceedings, this petition is filed. It is - 7 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR submitted that this Court directed the jurisdictional Deputy Commissioner of Police to conduct an enquiry into the incident and submit a report but the said report is not made available to the respondent No.8. It is further submitted that if the Department intends to initiate any proceedings against the respondent No.8, under such circumstances, the said report shall be made available to him so that he can effectively defend the proposed action of the Department. Hence, he seeks to dismiss the petition.

6. We have heard the learned counsel for the petitioner, learned State Public Prosecutor respondent Nos.1 to 7, learned Senior counsel for the respondent No.8 and perused the material available on record including reports placed by the State Government. We have bestowed our anxious consideration on the submissions advanced on both the sides. - 8 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

7. This habeas corpus writ petition is filed alleging that the detenue is a mason worker and he left the house at about 9 a.m. on 14.10.2025. The petitioner received a call at 1 p.m. on 14.10.2025 stating that the husband of the petitioner has been taken by the CCB Police, Bangalore near Satellite bus-stop. The petitioner tried reaching the detenue by phone and on being unsuccessful, she went to the Byadarahalli Police Station on 15.10.2025 seeking to lodge a missing complaint. However, no endorsement was issued and the petitioner was informed to come to the police station whenever asked for. The petitioner received a call on 16.10.2025 from one Lavanya stating that the husband of the petitioner has been detained at Gangammangudi Police Station. The petitioner, on receipt of such information visited the Gangammangudi Police Station at about 1 p.m., where one Mr.Kaveesh- respondent No.8, who is the staff at the station facilitated the petitioner to meet the detenue. It is further stated that the detenue was assaulted in the station and respondent - 9 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR No.8 made a demand of Rs.7,00,000/- to release the detenue from detention. The petitioner approached the Karnataka State Human Rights Commission and lodged a complaint against the Gangammanagudi Police atrocities. The said complaint was admitted and an order was passed directing the Additional Director General of Police, Karnataka State Human Rights Commission to enquire whether the detenue is actually in illegal custody as alleged by the petitioner in the complaint. The Deputy Superintendent of Police (Dy.S.P), State Human Rights Commission visited the police station at 7.45 p.m. on

17.10.2025 and the detenue was not found in the police station. After the visit of the Dy.S.P, an FIR in Crime No.185/2025 was filed at the Gangammangudi Police Station against the detenue and one Srinivas, under the Indian Arms Act, 1959 and they are produced before the Court of the XLIX Additional C.M.M, Bangalore (for short 'Magistrate') on 18.10.2025 at 5 p.m. along with a remand application for custody. The Magistrate passed an order - 10 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR remanding the detenue to police custody from 18.10.2025 at 5.00 p.m till 24.10.2025 at 5.00 p.m. i.e for six days. The petitioner has filed this petition being aggrieved by the illegal detention of the accused from 14.10.2025.

8. It is to be noticed that the respondent No.8 was not arrayed as a party to the proceedings but taking note of the allegations made against him, he was permitted to impleaded and was duly represented proceedings. The records indicate that the Police Inspector and the Station House Officer of Gangammanagudi police station have filed an affidavit on 30.10.2025. The said affidavit indicates that on 17.10.2025, a case was registered in Crime No.185/2025 against the detenue and another accused based on the complaint made by the Assistant Sub-Inspector of police. The affidavit further indicates that the detenue was arrested on 17.10.2025 and the grounds of arrest were intimated to both the accused. Taking note of the contents of the said affidavit and considering the specific assertions of the petitioner that her - 11 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR husband was apprehended at 1 p.m. on 14.10.2025 and thereafter, she met her husband in the police station which was facilitated by the respondent No.8 who demanded Rs.7,00,000/- release her husband illegal detention, this Court directed the Deputy Commissioner of Police, Bangalore North-West to conduct a detailed enquiry, further directed to submit a report and also directed the jurisdictional police to preserve the CCTV footage of the police station.

9. The learned State Public Prosecutor appearing for the State submitted a report on 16.12.2025 which was perused by the Court. However, the said report was inconclusive and silent with regard to the various aspects including the presence of the respondent No.8 in the police station on 14.10.2025. This Court, therefore directed the Deputy Commissioner of Police to file a further report in the matter. - 12 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

10. On 07.01.2026, learned State Public Prosecutor submitted a report in a sealed cover which was opened and perused. The report indicates the steps taken by the jurisdictional DCP for conducting an enquiry. The report further indicates that the Enquiry Officer has examined the petitioner, police officials of the respondent No.4-police station and other persons, verified the mobile phone call details, verified the police station records, forensic examination report and opined that the detenue was present at Gangammanagudi police station from

14.10.2025 to 17.10.2025. It is also opined that the CCTV footage as not available. It is further observed that the allegation of demand of illegal gratification of Rs.7,00,000/- by the respondent No.8 could not be conclusively established in the course of enquiry. The report indicates with regard to the initiation of appropriate proceedings against the respondent No.8. Be that as it may, the report of the high ranking officer of the police department clearly indicates that the husband of the petitioner was illegally - 13 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR detained in the respondent No.4-police station from

14.10.2025 to 17.10.2025 and thereafter, a crime is registered, arrest is shown and further process has been completed.

11. It is clear from the aforesaid report and the material on record that the detenue was detained in the police custody for a period of about four days, without following the due procedure of arrest and detention as per Chapter V of the Bharatiya Nagarik Suraksha Sanhita,

2023. In view of the said finding of fact, it would be necessary to refer to the evolution of the procedures of arrest and detention as held by the Hon'ble Supreme Court in an attempt to establish the right balance between protection of individual liberty and societal order.

12. In the case of JOGINDER KUMAR Vs. STATE OF U.P1., the Hon'ble Supreme Court held as under: 1 (1994) 4 SCC 260 - 14 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

9. 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; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore [242 NY 13, 24 : 150 NE 585, 589 (1926)] Justice Cardozo observed: loss of protection “The question is whether protection for the individual would not be gained at a disproportionate society. 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. The rule of the Adams case (People v. Adams [176 NY 351 : 68 NE 636 (1903)] ) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally - 15 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR effected shall give notice to the courts that change has come to pass.”

10. To the same effect is the statement by Judge Learned Hand, in Fried Re [161 F 2d 453, 465 (2d Cir 1947)] : “The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.” The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.

11. This Court in Nandini Satpathy v. P.L. Dani [(1978) 2 SCC 424 : 1978 SCC (Cri) 236 : AIR 1978 SC 1025, 1032] (AIR at p. 1032) quoting Lewis Mayers stated: (SCC p. 433, para 15) “The paradox has been put sharply by Lewis Mayers: ‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.’ ” - 16 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR Again (in AIR para 21, at p. 1033) it was observed: (SCC p. 436, para 23) requiring “We have earlier spoken of the conflicting claims reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection rights which accused and constitutional individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda [Miranda v. Arizona, 384 US 436 : 16 L Ed 2d 694 (1966)] there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting law-breakers. Currently, jurisdiction according to legal journals, is that ‘respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws…’. (Couch v. United States [409 US 322, 336 : 34 L Ed 2d 548 (1973)] ). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.” the American

12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for - 17 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus: “It is obvious that a major portion of the arrests were connected with very minor therefore, be prosecutions and cannot, regarded as quite necessary from the point of prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.” that 43.2 per cent of As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.

17. In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act, 1984 based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-papers 8092 19811).

18. It is worth quoting the following passage from Police Powers and Accountability by John L. Lambert, p. 93: “More recently, the Royal Commission on Criminal Procedure recognised that ‘there is a critically important relationship between the - 18 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR police and the public in the detection and investigation of crime’ and suggested that public confidence in police powers required that principal standards: fairness, openness and workability.” conform (emphasis supplied)

19. The Royal Commission suggested restrictions on the power of arrest on the basis of the “necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure — Sir Cyril Philips at p. 45 said: “… we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria: (a) the person's unwillingness to identify himself so that a summons may be served upon him; (b) the need to prevent the continuation or repetition of that offence; (c) the need to protect the arrested person himself or other persons or property; (d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; - 19 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR (e) the likelihood of the person failing to appear at court to answer any charge made against him.” The Royal Commission in the abovesaid report at p. 46 also suggested: “To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case ….”

20. In India, Third Report of the National Police Commission at p. 32 also suggested: “An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances: (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements infuse confidence among the terror-stricken victims. restraint (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. - 20 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity specified guidelines ….” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. 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. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides 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. The recommendations of the Police - 21 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR Commission merely reflect constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police — Richard Clayton and Hugh Tomlinson; p. 313). That section provides: “[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.” These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised - 22 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:

1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

22. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals. - 23 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

13. In the case of D.K. BASU Vs. STATE OF WEST BENGAL2wherein relevant paragraphs are extracted below for reference:

35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) 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 shall 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 2 (1997) 1 SCC 416 - 24 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the 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 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. (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. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been 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, - 25 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR 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 of all the documents including the memo of arrest, 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 throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and 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.

36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering - 26 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

40.Ubi jus, ibi remedium.—There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. - 27 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

41. Some punitive provisions are contained in the Penal Code, 1860 which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Penal Code, 1860. These statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair - 28 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that “anyone who has been the victim of unlawful arrest or detention shall have enforceable compensation”. Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 and made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudul Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798] ; Sebastian M. Hongray v. Union of India [(1984) 1 SCC 339 : 1984 SCC (Cri) 87 and (1984) 3 SCC 82 : 1984 SCC (Cri) 407] ; Bhim Singh v. State of J&K [1984 Supp SCC 504 : 1985 SCC (Cri) 60 and (1985) 4 SCC 677 : 1986 SCC (Cri) 47] ; Saheli, A Women's Resources Centre v. Commr. Police [(1990) 1 SCC 422 : 1990 SCC (Cri) 145] .) There indeed no express provision in the Constitution of India for grant of compensation for - 29 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR violation of a fundamental right to life, nonetheless, this Court has judicially evolved a compensation in cases of established unconstitutional deprivation of personal liberty or life. (See Nilabati Behera v. State [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] )

43. Till about two decades ago the liability of the Government for tortious acts of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera v. State [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] the decision of this Court in Kasturilal Ralia Ram Jain v. State of U.P. [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 LLJ 583] wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus : (SCC p. 761, para 14) - 30 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR liability the State's compensation “In this context, it is sufficient to say that the decision of this Court in Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 LLJ 583] upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798] and others in that line relate to award of compensation for contravention of fundamental the constitutional remedy under Articles 32 and 226 of the Constitution. hand, Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 LLJ 583] related to the value of goods seized and not returned to the owner due fault of government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation fundamental rights. Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 LLJ 583] is, therefore, inapplicable in this context and distinguishable.” rights, On

44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict - 31 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to - 32 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim — civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.

46. In Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , it was held : (SCC pp. 767-68, para 32) “Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the the courts have, prerogative writs and is available indeed - 33 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title ‘Freedom under the Law’ Lord Denning in his own style warned: ‘No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to- date machinery, by declarations, injunctions and actions for negligence…. This is not the task of Parliament … the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.’ ”

47. A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the - 34 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR infringement of those rights. That has, however, not prevented the Courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.

48. The informative and educative observations of O'Dalaigh, C.J. in State (At the Prosecution of Quinn) v. Ryan [1965 IR 70] (IR at p. 122) deserve special notice. The Learned Chief Justice said: “It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the Court's powers in this regard are as ample as the defence of the Constitution requires.” (emphasis supplied)

49. In Byrne v. Ireland [1972 IR 241] Walsh, J. opined at p. 264: “In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State, it is against - 35 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed.” (emphasis supplied)

50. In Maharaj v. Attorney General of Trinidad and Tobago (No. 2) [(1978) 2 All ER 670 : (1978) 2 WLR 902 : 1979 AC 385, PC] the Privy Council while interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of “redress” for contravention the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said: General “It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney Guyana [1971 AC 972 : (1971) 3 WLR 13, PC] . Reliance was placed on the reference in the sub-section to ‘enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections’ as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships' view an order for payment of compensation when a right protected under Section 1 ‘has been’ contravened is clearly a form of ‘redress’ which a person is entitled to claim under Section 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction to make - 36 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR such an order is conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction ‘to hear and determine any application made by any person in pursuance of sub-section (1) of this section’. The very wide powers to make orders, issue writs and give directions are ancillary to this.” Lord Diplock then went on to observe (at p. 680): “Finally, Lordships would something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for liberty compensation alone.” for deprivation of

51. In Simpson v. Attorney General [1994 NZLR 667] (Baigent case) the Court of Appeal in New Zealand dealt with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the police officials which violates the New Zealand Bill of Rights Act,

1990. While dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for - 37 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR which no specific remedy was provided, Hardie Boys, J. observed: “The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights that the Bill affirms. It is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed. I see no reason to think that this should depend on the terms of a written constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection the obligation of every civilised State. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning.” (emphasis supplied)

52. The Court of Appeal relied upon the judgments of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behera v. State [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] thus: “Another valuable authority comes from India, where the Constitution empowers the - 38 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR it. Supreme Court to enforce rights guaranteed In Nilabati Behera v. State of Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , the Supreme Court awarded damages against the State to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to “forge new tools”, of which compensation was an appropriate one where that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. These observations of Anand, J. (at p. 2912 of Cri LJ) may be noted : (SCC p. 768, paras 33 and 34) ‘The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. … The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights.’ ”

53. Each of the five members of the Court of Appeal in Simpson case [1994 NZLR 667] delivered a separate judgment but there was unanimity of opinion regarding pecuniary compensation to the victim, for the contravention of his rights guaranteed under the Bill of Rights Act, - 39 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR notwithstanding the absence of an express provision in that behalf in the Bill of Rights Act.

54. Thus, to sum up, it is now a well-accepted proposition in most of jurisdictions, monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with - 40 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait- jacket formula can be evolved in that behalf. The relief redress the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."

14. In the case of ARNESH KUMAR Vs. STATE OF BIHAR3, the Hon'ble Supreme Court held as under: "8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey: 3 (2014) 8 SCC 273 - 41 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. - 42 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing Magistrate will authorise the detention of the accused.

8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny." - 43 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR

15. It is clear from the aforesaid enunciation of law laid down by the Hon'ble Supreme Court that the arrest and detention of a person must be carried out within the procedures established by law and any deviance from such procedures will lead to the violation of one of the most sacred fundamental rights guaranteed to the citizens of this country. In the instant case, basic procedures of arrest and detention were bypassed and the right to liberty guaranteed to the detenue under Article 21 of the Constitution of India was violated. Furthermore, the Hon'ble Supreme Court has also pointed out importance of a remedy beyond punishment to address the damage caused to the victim, in the form of monetary compensation as the State is vicariously liable to the act of its agents. It has been made clear that the 'sovereign immunity' granted to the State will not be applicable for tortuous acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In the instant case, such monetary - 44 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR remedy is desirable as there is a clear infringement of the fundamental rights of the detenue granted under Article 21 of the Constitution of India. It is to be noticed that the petitioner is also required to be paid with cost of the litigation in view of the aforesaid finding. It is further observed that the finding recorded by this Court would not the way respondent-State initiating/continuing with the departmental enquiry proceedings against erring official/officials independently on its merits.

16. For the aforementioned reasons, we proceed to pass the following: ORDER (1) The writ petition is allowed. (2) It is declared that the arrest of the husband of the petitioner (detenue)

14.10.2025 till the filing of the first information report is illegal and contrary to the procedure of arrest. - 45 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR (3) The respondent-State is directed to pay Rs.2,00,000/- as compensation for the violation of the fundamental rights of the detenue guaranteed under Article 21 of the Constitution of India. (4) The respondent-State is directed to pay the cost of Rs.50,000/- to the petitioner/detenue. (5) Express liberty is granted petitioner/detenue to institute a suit for recovery of the actual damages and the said Court shall take note of this decision while considering the suit. (6) Liberty is reserved to the respondent- State to recover the compensation amount and the cost from the erring official/officials accordance with law. (7) It is made clear that liability shall be fixed against the Officer of the Station or the Department, only after conducting due enquiry in - 46 - NC: 2026:KHC:3951-DB W.P.H.C. No.113/2025 HC-KAR accordance with law after giving them opportunity to state their contentions in defence. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 1