Sarita Shah v. State of Uttarakhand and Others

that an FIR was lodged by one Smt. Prabha Ratruri, member of District Child Welfare Committee, Tehri Garhwal at Police Station, New Tehri, District Tehri Garhwal on 14.08.2013 with the allegation that the accused Dinesh Lal, resident of Village Pata Patti Sarjyula, Tehri Garhwal committed rape with her 1 daughter (victim). After investigation, charge sheet was submitted against the accused Dinesh Lal and Khushi Ram to face the trial for the offence under Sections 376 and 506 IPC, thereafter charges were framed by the trial court under Sections 376 & 506 IPC.

3. From the perusal of the record, it reveals that the learned Sessions Judge acquitted the accused and directed to issue notice under Section 358 of Cr.P.C. upon the present applicant; that, learned Sessions Judge while acquitting the accused opined that the present applicant implicated the accused Khushi Ram without any basis and has arrested the accused Khushi Ram groundlessly for which the applicant, being Investigating Officer, is responsible and, as such, awarded a sum of Rs.500/- to be paid to the accused Khushi Ram from the Investigating Officer (applicant herein) under Section 358 Cr.P.C. Paragraph 19 of the judgment passed by the learned Sessions Judge, which is impugned this criminal misc. application reproduced below:- “19. Investigating officer Sarita Shah implicated accused Khushi Ram without any basis his name was not stated by victim of ST no. 32/2013 nor in the report of present session trial, neither in the statement U/s 161 Cr.P.C., when the victim remained with the company of I.O. victim has roped the name of accused Khushi Ram as with the threat, but before Court victim has not stated a single word about the threat by Khushi Ram. From above fact it is established that S.I. Sarita Shah has arrested the accused Khushiram groundlessly and Investigating officer is totally responsible for the 2 arrest of accused Khushi Ram and as such Rs. 500/- be awarded to the accused Khushi Ram from Investigating officer Sarita Sah U/s 358 Cr.P.C.. Let the recovery be sent to S.P. Tehri to deduct Rs. 500/- from the pay of S.I. Sarita Sah to pay the accused Khushi Ram who has been arrested and roped in groundlessly by the Investigating Officer.”

4. Learned counsel for the applicant would submit that in the statement of the victim under Section 164 Cr.P.C., there was some confusion regarding name of her father and her uncle, as name of her father was recorded Dinesh Pal instead of Dinesh Lal and name of her uncle was recorded as Khushi Pal instead of Khushi Ram. In order to clarify the aforesaid names, applicant being I.O. recorded the statement of the victim under Section 161 Cr.P.C., wherein specific question was put to the victim, as to what is the name of her uncle, to which victim replied that her uncle name is Khushi Ram and perhaps learned Magistrate has wrongly mentioned the name of the uncle of victim as Khushi Pal.

5. Learned counsel for the applicant would further submit that the learned Sessions Judge on this point alone has held that the name of the victim’s uncle Khushi Ram was not stated by the victim in her statement under Section 164 Cr.P.C., therefore, the present applicant has been implicated in the case without any basis. He would further submit that provisions of Section 358 Cr.P.C. cannot be invoked against the Police Officer, who is investigating the matter. Section 358 Cr.P.C. reads as under:- “358 Compensation to persons groundlessly 3 arrested- (1). Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding [one thousand rupees] to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit. (2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding [one thousand rupees], as such Magistrate thinks fit. (3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.”

6. Learned counsel for the applicant would further submit that, if the Court finds that the arrest is groundless, then the power vest with the Magistrate and not with the Sessions Judge. Lastly, he has submitted that the order of recovery issued against the applicant could not have been passed without affording any opportunity of hearing to the applicant. In support of his contention, learned counsel for the applicant has relied on the judgment passed by the Hon’ble Orissa High Court in the case of Pramod Kumar Padhi Vs. Golekha and others, 1985 SCC OnLine Ori 116. The relevant 4 paragraphs of the judgment reads as under:- for making reasonable ground “4. There is no doubt that in the language used in section 358 of the Code, the show-cause is not intended but in a similar provision contained in the Code, namely section 250, it has been provided for that when the Magistrate is of the opinion that there was no accusation, then the Magistrate most call upon the person upon whose complaint or information, the accusation was made to show-cause as to why he should not pay compensation to such accused. Mr. Padhi's contention is based on the ground that the nature of the order a keeping Magistrate is going to pass under section 358 of the Code and bearing in mind the fundamentals of that no man can be criminal condemned without affording him a reasonable opportunity, a show-cause must be imported into the provisions of section 358 of the Code. This question came up for consideration before a learned Judge of Gujarat High Court in the case of Shah Chandulal Gokaldas and Ors. v. Patel Baldevbhai Banchhod-das and Ors., 1980 Crl. L. J. 514. After discussing the procedure laid down both in sections 250 and 258 of the Code, the learned Judge held : jurisprudence in mind "Looking to the consequences which are likely to follow from the order of payment of compensation and looking to the fact that the Magistrate has to come to the conclusion that there was no sufficient ground for causing such arrest, principles of natural justice which must be read into all such sections and provisions of law required that an opportunity of showing cause and trying to satisfy the Magistrate that there was sufficient ground for causing the arrest should be given to the complainant or the person who caused the alleged wrongful arrest to be made... It may be pointed out that if this requirement based on principles of natural justice is not to be read into the provisions of section 358 of the Code of Criminal Procedure, it is likely that the section may be struck down on the ground 5 violation reasonable procedural requirement contemplated by Arts 14 and 19 of the Constitution. Rule of law which is the basis of the procedural requirements of Arts. 14 and 19 of the Constitution presupposes the underlying basis of principles of natural justice and hence by reading down section 358 the requirement that principles of natural justice have to be adhered to must be read into section 358." In my opinion the aforesaid dictum lays down 5. the correct interpretation of Section 358 of the Code and, therefore, I am of the view that a show-cause must be read into the provisions of section 358 of the Code. Since no such show-cause has admittedly been given in this case to the petitioner before directing him to pay compensation, the order has become vulnerable and cannot be sustained.”

7. Learned counsel for the applicant has further relied on the judgment passed by the Hon’ble High Court of Karnataka in the case of Mallappa Vs. Veerabasappa and others in Criminal Revision Petition No.190 of 1977 dated 10.08.1977 has held that “in that connection, the learned counsel referred to Section 358 which according to him pointed out two stages, which were to be covered by the Magistrate before he could award compensation. The first stage was when the learned Magistrate had to give a finding that the complainant caused the accused to be arrested and the second stage was when the Magistrate had to give a finding as to whether there was sufficient ground or not for causing such arrest. Unless both stages were covered, the learned Magistrate could not award compensation.”

8. This Court finds some substance in the arguments as advanced by the learned counsel for the applicant that provisions of Section 358 Cr.P.C. would be 6 applicable awarding compensation complainant and not to Police Officer. A bare reading of Section 358 (1) of Cr.P.C. would reveal that whenever any person causes a Police Officer to arrest another person and, if it appears to the Magistrate that there was no sufficient ground for causing such arrest then concerned Magistrate may award compensation to be paid by the complainant to the person so arrested.

9. Learned counsel for the applicant also relied upon the judgment passed in the case of State (NCT of Delhi) v. Pankaj Chaudhary and Others, (2019) 11 SCC 575, where the Hon’ble Supreme Court held that disparaging remarks or directions for disciplinary action affecting the service career of an individual should not be made without providing them an opportunity of being heard.

10. After hearing the parties and perusing the record, it is apparently clear that the Investigating Officer after thorough investigation has filed the charge sheet, wherein Khushi Ram, who was uncle of the victim was also made an accused, thus, the victim has named her uncle name in her statement under Section 164 Cr.P.C. and Section 161 Cr.P.C., therefore, the finding recorded by the learned Sessions Judge against the present applicant in para 19 of the impugned judgment is not borne out from the record. Hence, this Court is of the opinion that a show cause ought to have been issued to the applicant before directing compensation to be paid from the salary of the applicant, inasmuch as, recovery from the salary of a Government Servant would entail civil consequences, which amounts to imposition of 7 punishment and such punishment could not have been awarded without affording any opportunity of hearing to the applicant.

11. The Hon’ble Supreme Court in a catena of judgments has held that such remarks should not be made without affording the concerned person an opportunity to defend themselves, especially where such remarks may adversely impact their service career. It is further apparent that the observations and directions made by the trial court in paragraph no.19 of the judgment dated 13.11.2013 is beyond its jurisdiction and contrary to settled legal principles.

12. Accordingly, this Court finds it appropriate to expunge paragraph 19 of the judgment and order dated

13.11.2013 in S.T. No.29 of 2013, Sate of Uttarakhand and Dinesh Lal and another, insofar as, it pertains to the applicant. Accordingly, the paragraph no.19 of the judgment dated 13.11.2013 is hereby expunged.

13. The Criminal Misc. Application stands disposed of, accordingly. Dated: 12.08.2025 BS (ALOK MAHRA, J.) 8