Holding

The Supreme Court held that the non‑bailable warrant was unjustified, its execution after cancellation violated constitutional rights, the police officer was merely reprimanded, and no further compensation was due, while affirming that courts may label a warrant ‘non‑bailable’ provided they exercise discretion judiciously.

Summary

The appellant, a practising advocate, was charged under IPC s.324. After failing to appear on 7 August 2002, the Additional Chief Metropolitan Magistrate issued a non‑bailable warrant (NBW) returnable on 31 October 2002. The appellant appeared on 12 August and the warrant was cancelled, but on 15 August the police inspector, at the complainant’s insistence, executed the NBW, arresting the appellant at a public Independence Day gathering. The High Court ordered the inspector to pay Rs 2,000 as costs and reprimanded him. On appeal, the Supreme Court held that the NBW was unjustified given the nature of the offence, the appellant’s regular court attendance and his stature; the execution of the warrant after cancellation, especially on a holiday, violated Articles 21 and 22(1) of the Constitution. The inspector was reprimanded but no further compensation was awarded. The Court clarified that while the term “non‑bailable” is not in the Code, courts may use it provided they exercise discretion judiciously. The appeal was dismissed.

Issues considered

The propriety of issuing a non‑bailable warrant in a complaint case for a bailable offence.
Whether execution of a warrant after its cancellation, on a public holiday, infringes the appellant’s fundamental rights under Articles 21 and 22(1).
The liability of the police officer for disciplinary action beyond the modest costs awarded.
The entitlement of the appellant to additional monetary compensation for humiliation and wrongful detention.
Whether courts may issue a ‘non‑bailable’ warrant despite the absence of such terminology in the Code of Criminal Procedure.

Legislation cited

Code of Criminal Procedure, 1973s. 476, s. 70, s. 71
Constitution of Indias. Article 21, s. Article 22(1)
Indian Penal Code, 1860s. 324, s. 342, s. 345

Subjects

non‑bailable warrantcriminal procedureArticle 21wrongful detentionpolice misconductcompensationfundamental rightsjudicial discretionarrest warrant

Judgment

[2011] 11 S.C.R. 300

A· RAGHUVANSH DEWANCHAND BHASIN
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No.1758 of 2011)

SEPTEMBER 9, 2011.
B
[D.K. JAIN AND H.L. DATTU, JJ.)

CODE OF CRIMINAL PROCEDURE, 1973:

C Chapter VI - Processes to compel appearance -
Waffant of arrest - In a complaint case for offence punishable
uls 324 /PC on the date of hearing at preliminary stage,
appellant being absent the court issued a non-bailable
warrant against him - Held: Courts have to be extra-cautious
D and careful while directing issue of non-bailable warrant, else
a wrongful detention would amount to denial of constitutional
mandate envisaged in Article 21 of the Constitution of India
- ·The power has to be exercised judiciously and not arbitrarily,
having regard, inter-alia, to the nature and seriousness of the
E offence involved; the past conduct of the accused, his age
and the possibility of his absconding - In the instant case,
having regard to nature of the complaint against the appellant
and his stature in the community and the fact that he was
regularly attending the court proceedings, it was not a fit case
F where non-bailable waffant should have been issued - The
attendance of the appellant could have been secured by
issuing summons or at best by a bailable warrant -
Constitution of India, 1950 - Articles 21 and 22(1).

ADMIN/STRA T/ON OF JUSTICE:
G
Criminal Justice - Execution of warrants to compel
appearance in court - non-bailable warrant issued against
appellant executed even after it had been cancelled -
300
RAGHUVANSH DEWANCHAND BHASIN v. STATE 301
OF MAHARASHTRA & ANR.

Appellant, in spite of his telling that the warrant had been A
cancelled, was arrested before a public gathering during
Independence Day celebrations, produced before the Dqty
Magistrate and was released the same day - Writ petition by
appellant before High Court seeking disciplinary action
against Inspector of Police concerned as also compensation B
damages and costs to be paid by him - High Court directing
the Inspector to pay Rs. 2, 0001- to the appellant - Held: The
High Court has rightly held that the Inspector did not perform
his duty in the manner expected of a responsible police officer
- As a matter of fact, being the guardian of the liberty of a C
person, a heavy responsibility devolved on him to ensure that
his office was not misused by the complainant to settle
personal scores - The so-called urgency or promptness in
execution led to undesirable interference with the liberty of the
appellant - Such a conduct cannot receive a judicial D
imprimatur- However, the appellant does not deserve further
monetary compensation - Being a practicing Advocate
himself, the appellant was fully conversant with the court
procedure and, therefore, should have procured a copy of
memo/order whereby the non-bailable warrant was cancelled E
by the court - Though the conduct of the Inspector deserves
to be deplored, yet, strictly speaking his action in detaining
the appellant on the strength of the warrant in his possession,
peihaps motivated, cannot be said to be per se without the
authority of law - Therefore, no other action against him is F
warranted - He has been sufficiently reprimanded -
Constitution of India, 1950 - Article 21 r/w Articles 226 and
32.

Compensation ....; HELD: The power and jurisdiction of G
Supreme Court and High Courts to grant monetary
compensation in exercise of its jurisdiction respectively under
Articles 32 and 226 of the Constitution to a victim whose
fundamental rights under Article 21 of the Constitution are
H
302 SUPREME COURT REPORTS (2011) 11 S.C.R.

\)
A violated are we/I-established - High Court has awarded
Rs. 2, 0001- to the appellant - Having considered the case in
the light of the fact-situation, the appellant does not deserve
further monetary compensation.

Processes to compel appearance in court - Issuance of
8
a warrant with endorsement "non-bailable" - Though no such
terminology is found in the Code or Form-2, nevertheless, the
endorsement of the expression "non-bailable" on a warrant is
to facilitate the executing authority as well as the person
C against whom the warrant· is sought to be executed to make
them aware as to the nature of the warrant that has been
issued - Merely because the warrant uses the expression
"non-bailable': that by itself cannot render the warrant bad in
Jaw - In order to check or obviate the possibility of misuse of
an arrest warrant, in addition to the statutory and constitutional
0
requirements, guidelines laid down to be adopted in all cases
where non-bailable warrants are issued by the courts - Code
of Criminal Procedure, 1973 - ss.. 70, 71 and 476 rlw Second
Schedule, Form-2.
E In a case arising out of a criminal complaint against
the appellant, a practicing Advocate, for· an offence
punishable u/s 324 IPC, at the preliminary stage of
hearing, the trial court, on 7.8.2002, finding him to be
absent, issued a non-bailable warrant against him
F returnable on 31.10.2002. The warrant was forwarded to
the Police Station concerned. On 12.8.2002, the appellant
put in appearance before the court and the warrant was
cancelled. On 15.8.2002, at the instance of the
complainant, respondent no.2, an Inspector of Police,
G directed a constable to accompany the complainant and
execute the said non-bailable warrant. The appellant, in
spite of his telling that the warrant had been cancelled,
was arrested before a public gathering during the
independence day celebrations. He was produced before
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 303
OF MAHARASHTRA & ANR.

the Duty Magistrate and was released the same day. He A
then filed a writ petition before the High Court alleging
mala fides and humiliation at the hands of respondent no.
2 in collusion with the complainant and prayed for
suitable disciplinary action against respondent no. 2, and
for compensation, damages and costs to be paid by him. B
The High Court allowed the writ petition and directed
respondent no. 2 to pay an amount of Rs. 2000/- as costs
to the appellant from his own account. The appellant,
having failed to get the desired relief, filed the appeal.
c
Dismissing the appeal, the Court

HELD: 1.1 Since the execution of a non-bailable
warrant directly involves curtailment of liberty of a
person, warrant of arrest cannot be issued mechanically,
but only after recording satisfaction that in the facts and D
circumstances of the case, it is warranted. The courts
have to be extra-cautious and careful while directing
issuance of non-bailable warrant, else a wrongful
detention would amount to denial of constitutional
mandate envisaged in Article 21 of the Constitution of E
India. 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
war~ant, to strike the balance between the need of law
F
enforcement on the one hand and the protection of the
citizen from highhandedness at the hands of the law
enforcement agencies on the other. [para 9] [312-D-F]

1.2 The power and jurisdiction of the· court to issue
appropriate warrant against an accused on his failure to G
',
' attend the court on the date of hearing of the matter
cannot be disputed. Nevertheless, such power has to be
exercised judiciously and not arbitrarily, having regard,
inter-alia, to the nature and seriousness of the offence
involved, the past conduct of the accused, his age and H
304 SUPREME COURT REPORTS [2011] 11 S.C.R.

A the possibility of his absconding. [para 9] l313-A-B]

State of U.P. Vs. Poosu & Anr. 1976 (3) SCR 1005 =
1976 (3) sec 1 - relied on.

1.3 In lnder Mohan Goswami's case*, this Court,
8 keeping in view the right to life and personal liberty,
enshrined in Articles 21 and 22(1) of the Constitution,
enumerated some of the circumstances which the Court
should bear in mind while issuing non-bailable warrant.
C [para 10-11] [313-C; 314-E-F]

/nder Mohan Goswami & Anr. Vs. State of Uttaranchal &
Ors. 2001 (10) SCR 847 =2001 (12) sec 1 - relied on.
1.4 In the instant case, having regard to nature of the
o complaint against the appellant and his stature in the
community and the fact that admittedly he 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. The
E attendance of the appellant could have been secured by
issuing summons or at best by a bailable warrant.
Therefore, the High Court rightly held that in the facts and
circumstances of the case, issuance of non-bailable
warrant was manifestly unjustified. [para 12] [314-G-H;
F 315-A-B]
2.1 As regards the conduct of respondent No.2, at
whose direction the warrant was executed, he was aware
that the non-bailable warrant issued on account of failure
on the part of the appellant to attend the court
G proceedings on 7.8.2002, was returnable only on
31.10.2002. Undoubtedly, respondent No.2 was duty
bound to execute the warrant as expeditiously as
possible, but there is no justifiable reason for the urgency
in executing the warrant on a National holiday, more so
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 305
OF MAHARASHTRA & ANR.
when it had been issued more than a week ago. It is A
apparent from the record that the warrant was executed
at the behest of the complainant in order to denigrate and
humiliate the appellant at a public place, in public view,
during the course of Independence Day celebrations.
This Court is convinced that respondent No.2, in collusion B
with the complainant, played with the personal liberty of
the appellant in a high handed manner. The High Court
has rightly held that respondent No.2 did not perform his
duty in the manner expected of a responsible police
officer. As a matter of fact, being the guardian of the liberty C
of a person, a heavy responsibility devolved on him to
ensure that his office was not misused by the
complainant to settle personal scores. The so-called
urgency or promptness in execution led to undesirable
interference with the liberty of the appellant. Such a o
conduct cannot receive a judicial imprimatur. [para 13]
[315-C-H; 316-A-C]
2.2 It is trite principle of law that in matters involving
infringement or deprivation of a fundamental right, abuse
E
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. The
power and jurisdiction of this Court and the High Courts
F
to grant monetary compensation in exercise of its
jurisdiction respectively under Articles 32 and 226 of the
Constitution of India to a victim whose fundamental rights
under Article 21 of the Constitution are violated are thus,
well-established. [para 15 and 19] [316-F; 319-G]
G
Rudul Sah Vs. State of Bihar & Anr. 1983 (3) SCR508
= 1983 (4) SCC 141, Bhim Singh, MLA Vs. State of J & K
& Ors. 1985 ( 4) SCC 677; and Nilabati Behera (Smt) Alias
Lalita Behera Vs. State of
Orissa & Ors 1~93 (2) SCR
581=1993 ( 2) sec 746 - relied on. H
306 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 2.3 Having considered the case in the light of the fact-
situation, this Court is of the opinion that the appellant
does. not deserve further monetary compensation. It is
true that the appellant not only suffered humiliation in the
public gathering, and remained in judicial custody .for
B some time but, being a practicing Advocate himself, he
was fully conversant with the court procedure and,
· therefore, should have procured a copy of memo/order
dated 12.8.2002, whereby the non-bailable warrant was
cancelled by the court. Admittedly, the appellant applied
c and obtained a copy of such order only on 16.8.2002.
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
D the action of respc;mdent 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, no other action
against respondent No.2 is warranted. He has been
E sufficiently reprimanded. (para 19-20) (319-G-H; 320-A-E]
3. As regards the issue whether the Courts can at all
issue a warrant, called a "non-bailable" warrant, it is true
that neither s. 70 nor s. 71, appearing in Chapter VI of the
F Code of Criminal Procedure, 1973, enumerating the
processes to compel appearance, nor Form 2 of the
Second Schedule to the Code, uses the expression like
"non-bailable". Section 70 merely speaks of form of
warrant of arrest, and ordains that it will remain in force
G until it is cancelled. Similarly s. 71 talks of discretionary
power of court to specify about the security to be taken
in case the person is to be released on his arrest
pursuant to the execution of the warrant issued u/s 70 of
the Code. Sub-s. (2) of s. 71 of the Code specifies the
· endorsements which can 'be made on a warrant.
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 307
OF MAHARASHTRA & ANR.
Nevertheless, the endorsement of the expression "non- A
bailable" on a warrant is to facilitate the executing
authority as well as the person against whom the warrant
is sought to be executed to make them aware as to the
nature of the warrant that has been issued. Merely
because Form No.2, issued u/s 476 of the Code,' and set B
forth in the Second Schedule, nowhere uses the
expression bailable or non-bailable warrant, that does not
prohibit the courts .from using the said word or
expression while issuing the warrant or even to make
endorsement to that effect on the warrant so issued. Any C
endorsement/variation, which is ·made on such warrant
for the benefit of the person against whom the warrant
is issued or the persons who are required to execute the
warrant, would not render the warrant to be bad in law.
What is material is that there is a power vested in the D
court to issue a warrant and that power is to be exercised
judiciously depending upon the facts and circumstances
of each case. Being so, merely because the warrant uses
the expression like "non-bailable" and that such
terminology is not to be found in either s. 70 or s. 71 of E
the Code that by itself cannot render the warrant bad in
law. Therefore, no ground is made out warranting
interference with the impugned judgment of the High
Court. [para 21-22] [320-F-H; 321-A-F]
4. In order to prevent such a paradoxical situation, F
as has arisen in the instant case, and to check or obviate
the possibility of misuse of an arrest warrant, in addition
to the statutory and constitutional requirements,
guidelines are laid down in the instant judgment, to be
adopted in all cases where non-bailable warrants are G
issued by the courts. This Court expects and hopes that
all the High Courts will issue appropriate directions in this
behalf to the Subordinate Courts, which shall endeavour
to put into practice the directions issued in the instant
judgment. [para 23-24] [321-G-H; 322-A; 325-A-B] H
308 SUPREME COURT REPORTS [2011) 11 S.C.R.

A Case Law Reference:
1976 (3) SCR1005 relied on para 9
2007 (10) SCR 847 relied on para 10
1983 (3) SCR 508 relied on para 16
B
1985 (4) sec 677 relied on para 17
1993 (2) SCR 581 relied on para 18

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
C No. 1758 of 2011.

From the Judgment & Order dated 26.11.2007 of the High
Court of Bombay in Cr. W.P. No. 1086 of 2002.

0 Shankar Chillarge, AAG, R.D. Bhasin (In-Person) Jay
Savla, Dharmendra, Ashok Shahani, Renuka Sahu, Shilpi
Chaudhry, Asha G. Nair for the appearing parties.

The Judgment of the Court was delivered by

E D.K. JAIN, J.: 1. Leave granted.

2. This appeal, by special leave, is directed against the
judgment and order dated 26th November 2007, rendered by
the High Court of Judicature at Bombay, in CRL. W. P. No.1086/
F 2002. By the impugned judgment, while allowing the writ petition
filed by the appellant, alleging harassment on account of his
arrest on the strength of a non-bailable warrant, which had been
cancelled, the High Court has directed the delinquent police
officer to pay by way of costs to the appellant an amount of Rs.
G 2,0001- from his own account.

3: Shorn of unn~cessary details, the facts material for
adjudication of the present cast!, may be stated thus:

H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 309
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]

Some time in the year 2000, one, Mr. Prem Harchandrai A
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 IPC"), 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 B
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 C
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 o
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 E
warrant. When the appellant was sought to be arrested, he
informed the constable that the said warrant had already been
cancelled. However, as he could not produce any documentary
evidence relating to cancellation of warrant, the appellant was
arrested before a public gathering which had assembled at the F
Radio Club, in connection with the Independence day
celebrations. He was produced before the duty Magistrate at
about 2 P.M., the same day. The Magistrate directed the
release of the appellant. It appears that the appellant obtained
the necessary confirmation about cancellation of the warrant on G
the next day i.e. 16th August 2002 and produced the same
before respondent No. 2 on the same day. Alleging malafides
and humiliation at the hands of respondent No. 2, in collusion
with the complainant, the appellant approached the High Court,
inter-alia, praying for suitable disciplinary action against_ H
310 SUPREME COURT REPORTS [2011] 11 S.C.R.

A respondent No.2; adequate compensation; damages and costs
by the said respondent from his own pocket.

5. As aforesaid, the High Court, vide impugned judgment
has allowed the writ petition, inter alia, observing thus :
B
"We therefore, find that there was no justification for
issuance of non~bailable warrant on 7th August, 2002
merely because the petitioner had remained absent in
Criminal Case No. 163/P/2000 (sic) by the Metropolitan
Magistrate. The Magistrate could have issued either a
c notice or a bailable warrant depending upon the facts
revealed from the records. Once the warrant was cancelled
on 12th August, 2002, it was necessary for the Court to
immediately communicate the same to the concerned
Police authority so that no inconvenience could have been
D
caused to the person against whom the warrant was initially
issued. Once the warrant was sought to be executed on
holiday and the concerned police officer was categorically
informed that the warrant had already been cancelled and
the police officer being fully aware of the circumstances
E
and nature of the case in which warrant had been issued,
it was necessary for the police officer to ascertain and to
find out whether the warrant which was sought to be
executed was still enforceable or had already been
cancelled and not to rush to execute the warrant in those
F
· circumstances and that too on a holiday. Having produced
the necess~ry documents confirming the cancellation of the
warrant much prior to the date on which it was sought to
be (sic) enforced, it was the duty of the police officer to
tender the necessary apology to the petitioner for executing
G
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
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 311
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]

discloses any repentance for having executed the warrant A
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. B

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 C
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 not
0
authorised to issue non-bailable. warrant of arrest even when
an accused fails to appear in the court. It was submitted that
having held that the respondent No.2 was guilty of misconduct,
the High Court failed to punish the said respondent under
Sections 342 and 345 of the IPC. It was argued that the E
misconduct of respondent No.2 was so high that he should have
been forthwith suspended from his job and ordered to be tried
in a competent criminal court. According to the appellant, the
direction of the High Court asking respondent No.2 to pay an
amount of Rs. 2,000/- by way of cost to the appellant was no
F
justice at all and if a strict action is not taken against such
delinquent officers, they will continue to disregard the orders
of the courts with impunity.

8. Per contra, Mr. Jay Savla, learned counsel appearing
for respondent No.2 submitted that since the appellant was G
unable to furnish any document or order to establish that non-
bailable warrant issued against him by the court had been
cancelled, the police authorities were left with no option and in
fact were duty bound to execute the same. It was also urged
H
312 SUPREME COURT REPORTS [2011] 11 S.C.R.

A that, as per the prevalent practice, whenever any non-bailable
warrant is cancelled by the court, either memo or order
addressed to the Senior Inspector of Police of the concerned
police station is issued and forwarded directly to the concerned
police station with a direction to return the said warrant to the
B court. But in the present case no such memo or order in writing
had been received at the police station on or before 15th
August 2002, when it was executed. Learned counsel
submitted that the said respondent having performed his duty
bona fide and in good faith, in pursuance of order issued by
C the court having jurisdiction, the said respondent had not
committed any illegal act warranting any action against him.

9. It needs little emphasis that since the execution of a
non-bailable warrant directly involves curtailment of liberty of a
0 person, warrant of arrest cannot be issued mechanically, but
only after recording satisfaction that in the facts and
circumstances of the case, it is warranted. The Courts have to
be extra-cautious and careful while directing issue of non-
bailable warrant, else a wrongful detention would amount to
E denial of constitutional mandate envisaged in Article 21 of the
Constitution of India. At 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
F a balance between an individual's rights, liberties and privileges
on the one han_d, 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
G 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
H of the citizen from highhandedness at the hands of the law
RAGHUVANSH DEWANCHAND BHASIN v. STATE 313 _
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]
enforcement agencies on the other. The power and jurisdiction A
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 and not arbitrarily, having regard, inter-
alia, to the nature and seriousness of the offence involved; the B
past conduct of the accused; his age and the possibility of his
absconding. (Also See: State of UP. Vs. Poosu & Anr. 1).

10. In lnder Mohan Goswami & Anr. Vs. State of
Uttaranchal & Ors. 2, a Bench of three learned Judges of this C
Court cautioned that before issuing non-bailable warrants, the
Courts should strike a balance between societal interests and
personal liberty and exercise its discretion cautiously.
Enumerating some of the circumstances which the Court should
bear in mind while issuing non-bailable warrant, it·was
0
observed:

"53. Non-bailable warrant should be issued to bring a
person to court when summons or bailable warrants would
be unlikely to have the desired result. This could be when:
E
it is reasonable to believe that. the person will not
voluntarily appear in court; or

the police authorities are unable to find the person
to serve him with a summon; or F

it is considered that the person could harm
someone if not placed into custody immediately.

54. As far as possible, if the court is of the opinion that a
summon will suffice in getting the appearance of the G
_accused in the court, the summon or the bailable warrants
should be preferred. The warrants either bailable or non-

1. (1976) 3 sec 1.
2. -(2001) 12 sec 1. H
314 SUPREME COURT REPORTS [2011] 11 S.C.R.

A bailable should never be issued without proper scrutiny of
facts and complete application of mind, due to the
extremely serious consequences and ramifications which
ensue on issuance of warrants. The court must very
carefully examine whether the criminal complaint or FIR has
E not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should
direct serving of the summons along with the copy of the
complaint. If the accused seem to be avoiding the
c summons, the court, in the second instance should issue
bailable warrant. In the third instance, when the court is fully
satisfied that the accused is avoiding the 'court's
proceeding intentionally, the process of issuance of the
non-bailable warrant should be resorted to. Personal
0 liberty is paramount, therefore, we caution courts at the first
and second instance to refrain from issuing non-bailable
warrants."

11. We deferentially concur with these directions, and
emphasize that since these directions flow from the right to life
E and personal liberty, enshrined in Articles 21 and 22(1) 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
F 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.
G
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
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 315
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]
court proceedings, it was not a fit case where non-bailable A
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 8
circumstances of the case, issuance of non-bailable warrant
was manifestly unjustified.

13. We shall now advert to a more anxious point, viz. the
conduct of respondent No.2, at whose direction the warrant was c
executed. It needs no emphasis that any form of degrading
treatment would fall within the inhibition of Article 21 of the
Constitution. In the present case, respondent No.2 was aware
that the non-bailable warrant issued on account of failure on the
part of the appellant to attend the court proceedings on 7th 0
August 2002, was returnable only on 31st October 2002.
Undoubtedly, respondent No.2 was duty bound to execute the
warrant as expeditiously as possible but we are unable to
fathom any justifiable reason for the urgency in executing the
warrant on a National holiday, more so when it had been issued E
more than a week ago and even the complaint against the
appellant was in relation to the offence punishable under
Section 324 of the IPC. The complaint related to the year 2000.
At the relevant time, the offence punishable under Section 324
of the IPC was a bailable offence. It is apparent from the record F
that the warrant was executed at the behest of the complainant
in order to denigrate and humiliate the appellant at a public
place, in public view, during the course of Independence day
celebrations at Radio Club. We are convinced that respondent
No.2, in collusion with the complainant, played with the personal G
liberty of the appellant in a high handed manner. The unfortunate
sequel of an unmindful action on the part of respondent No.2
was that the appellant, a practicing Advocate, with no criminal
history, remained in police custody for quite some time without
any justification whatsoever and suffered unwarranted H
316 SUPREME COURT REPORTS [2011] 11 S.C.R.

A humiliation and degradation in front of his fellow members of
the Club. Regrettably! he lost his freedom though for a short
while, on the Independence day. Here also, we agree with the
High Court that respondent No.2 did not perform his duty in the
manner expected of a responsible police officer. As a matter
B of fact, being the guardian of the liberty of a person, a heavy
responsibility devolved on him to ensure that his office was not
misused by the complainant to settle personal scores. The so-
called urgency or promptness in execution led to undesirable
interference with the liberty of the appellant. Such a conduct
C 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
0 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 Rs. 2,000/- on
respondent No.2 is grossly inadequate. His prayer is that in
addition to an adequate amount of compensation, respondent
E 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
F 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 Vs. State of Bihar & Anr. 3 , Y. V.
G 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 prevented and due compliance with the
H 3. (1983) 4 sec 141.
RAGHUVANSH DEWANCHAND BHASIN v. STATE 317
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]
mandate of Article 21 secured, is to mulct its violators in A
the payment of monetary compensation. Administrative
sclerosis leading to flagrant infringements of fundamental
rights cannot be corrected by any other method open to
the judiciary to adopt."
B
17. In Bhim Singh, MLA Vs. State of J & K & Ors. 4, holding
illegal detention in police custody of the petitioner Bhim Singh
to be violative of his rights under Articles 21 and 22(2) of the
Constitution, this Court, in exercise of its power to award
compensation under Article 32, directed the State to pay c
monetary compensation to the petitioner. Relying on Rµdal Sah
(supra), 0. Chinnappa Reddy, J. echoed the following views:

"When a person comes to us with the complaint that he has
been arrested and imprisoned with mischievous or
malicious intent and that his constitutional and legal rights D
were invaded, the mischief or malice and the invasion may
not be washed away or wished away by his being set free.
In appropriate cases we have the jurisdiction to
compensate the victim by awarding suitable monetary
compensation". E

18. In Nilabati Behera (Smt) Alias Lalita Behera Vs. State
of Orissa & Ors. 5, clearing the doubt and indicating the precise
nature of the constitutional remedy under Articles 32 and 226
of the Constitution to award compensation for contravention of F
fundamental rights, which had arisen because of the
observation that "the petitioner could have been relegated to
the ordinary remedy of a suit if his claim to compensation was
factually controversial" in Rudul Sah (supra), J.S. Verma, J. (as
His Lordship then was) stated as under: G

"It follows that 'a claim in public law for compensation' for
contravention of human rights and fundamental freedoms,
4. (1985) 4 sec. 677.
5. (1993) 2 sec 746 H
318 SUPREME COURT REPORTS [2011] 11 S.C.R.

A the protection of which is guaranteed in the Constitution,
is an acknowledged remedy for enforcement and
protection of such rights, and such a claim based on strict
liability made by resorting to a constitutional remedy
provided for the enforcement of a fundamental right is
B 'distinct from, and in addition to, the remedy in private law
for damages for the tort' resulting from the contravention
of the fundamental right. The defence of sovereign immunity
being inapplicable, and alien to the concept of guarantee
of fundamental rights, there can be no question of such a
C defence 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
D 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
E 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.
F 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
G compensation, as exemplary damages, in proceedings
under Article 32 by this Court or under Article 226 by the
High Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law .and is;
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE · 319
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]
based on the strict liability for contravention of the A
guaranteed basic and indefeasible rights of the citizen. 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. Therefore, when the court moulds the relief by B
granting "compensation" in proceedings under Article 32
or 226 of the Constitution seeking enforcement or
protection of fundamental rights, it does so under the public
law by way of penalising the wrongdoer and fixing the
liability for the public wrong on the State which has failed C
in its public duty to protect the fundamental rights of the
citizen. The payment of compensation in such cases is not
to be understood, as it is generally understood in a civil
action for damages under the private law but in the broader
sense of providing relief by an order of making 'monetary D
amends' under the public law for the wrong done due to
breach of public duty, of not protecting the fundamental
rights of the citizen. The compensation is in the nature of
'exemplary damages' awarded against the wrongdoer for
the breach of its public law duty and is independent of the E
rights available to the aggrieved party to claim
compensation under the private law in an action based on
tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal
law." F

19. The power and jurisdiction of this Court and the High
Courts to grant monetary compensation in exercise of its
jurisdiction _respectively under Articles 32 and 226 of the
Constitution of India to a victim whose fundamental rights under G
Article 21 of the Constitution are violated are thus, well-
established. However, the question now is whether on facts in
hand, the appellant is entitled to monetary compensation in
addition to what has already been awarded to him by the High
Court. Having considered the case in the light of the fact- H
320 SUPREME COURT REPORTS [2011] 11 S.C.R.

A situation stated above, we are of the opinion that the appellant
does not deserve further monetary compensation.

20. It is true that the appellant not only suffered humiliation
in the public gathering, and remained in judicial custody for
8 some time but we feel that for what he had 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
c 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
0 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
E 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
F Code as well as in Form 2 of the Second Schedule to the
Code. It is true that neither Section 70 nor Section 71,
appearing in Chapter VI of the Code, enumerating the
processes to compel appearance, as also Form 2 uses the
expression like "non-bailable". Section 70 merely speaks of
G form of warrant of arrest, and ordains that it will remain in force
until it is cancelled. Similarly Section 71 talks of discretionary
power of Court to specify about the security to be taken in case
the person is to be released on his arrest pursuant to the
execution of the warrant issued under Section 70 of the Code.
H
RAGHUVANSH DEWANCHAND BHASIN v. STATE 321
OF MAHARASHTRA & ANR. [D.K. JAIN, J.)
Sub-section (2) of Section 71 of the Code specifies the A
endorsements which can be made on a warrant. Nevertheless,
we feel that the endorsement of the expression "non-bailable"
on a warrant is to facilitate the executing authority as well as
the person against whom the warrant is sought to be executed
to make them aware as to the nature of the warrant that has 8
been issued. In our view, merely because Form No.2, issued
under Section 476 of the Code-, and set forth in the Second
schedule, nowhere uses the expression bailable or non-
bailable warrant, that does not prohibit the Courts from using
the said word or expression while issuing the warrant or even C
to make endorsement to that effect on the warrant so issued.
Any endorsement/variation, which is made on such warrant for
the benefit of the person against whom the warrant is issued
or the persons who are required to execute the warrant, would
not render the warrant to be bad in law. What is_ material is that D
there is a power vested in the Court to issue a warrant and that .
power is to be exercised judiciously depending upon the facts
and circumstances of.each case. Being so, merely because
the warrant uses the expression like "non-bailable" and that such
terminology is not to be found in either Section 70 or Section E
71 of the Code that by itself cannot render the warrant bad in
law. The argument is devoid of substance and is rejected
accordingly.

22. In view of the aforegoing discussion, no ground is made F
out warranting our interference with the impugned judgment of
the High Court. We confirm the judgment and dismiss the
appeal accordingly, but with no order as to costs.

23. However, before parting with the judgment, we feel that
in order to prevent such a paradoxical situation, we are faced G
with in the instant case, and to check or obviate the possibility
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 t~e following guidelines
H
322 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B 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
(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
D ensuring that Court seal bearing complete
particulars of the Court is prominently endorsed
thereon;

(d) The Court must ensure thatwarrant is directed to
E 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;

F (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;
G (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
H the record of the concerned case;
RAGHUVANSH DEWANCHAND BHASIN v. STATE 323
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]
(g) A register similar to the one in clause (e) supra shall A
be maintained at the concerned police station. The
Station House Officer of the concerned Police
Station shall ensure that each warrant of arrest
issued by the Court, when received is duly entered
in the said register and is formally entrusted to a B
responsible officer for execution;
(h) Ordinarily, the Courts should not give a long time
for return or execution of warrants, as experience
has shown that warrants are prone to misuse if they
remain in control of executing agencies for long;
c
(i) On the date fixed for the return of the warrant, the
Court must insist upon a compliance report on the
action taken thereon by the Station House Officer
of the concerned Police Station or the Officer In- D
charge of the concerned agency;
0) The report on such warrants must be clear, cogent
and legible and duly forwarded by a superior police
officer, so as to facilitate fixing of responsibility in
E
case of misuse;
(k) In the event of warrant for execution beyond
jurisdiction of the Court issuing it, procedure laid
down in Sections 78 and 79 of the Code must be
strictly and scrupulously followed; and F
(I) In the event of cancellation of the arrest warrant by
the Court, the order cancelling warrant shall be
recorded in the case file and the register
maintained. A copy thereof shall be sent to the
G
concerned authority, requiring the process to be
returned unexecuted forthwith. The date of receipt
of the unexecuted warrant will be entered in the
aforesaid registers. A copy of such order shall also
be supplied to the accused.
H
Format of the Register (/)
c
-0
S. The Case title Name& The Date of Date Date of Due Report The Remarks ;;o
m
No. number and particulars officer/ judicial of cancell- date returned action s:
printed on particulars of the person to order issue ation, if of on taken m
the form person whom directing any return as ()
used. against directed Arrest reported 0
whom Warrant
c
warrant of to be ~
arrest is issued ;;o
issued
m
"U
(accused/ 0
witness) ~
(/)

'N
0
......
......
......
......
(/)
()
;;tl
RAGHUVANSH DEWANCHAND BHASIN v. STATE 325
OF MAHARASHTRA & ANR. [D.K. JAIN, J.]

Format of the Register A
24. We expect and hope that all the High Courts will issue
appropriate directions in this behalf to the Subordinate Courts,
which shall endeavour to put into practice the aforesaid
directions at the earliest, preferably within six months from
today. B
R.P. Appeal dismissed.