A person can not be arrested for drinking tea in a ‘suspicious’ manner

Bombay High Court: While reprimanding the police for arresting a man for drinking tea in a ‘suspicious’ manner, the Court held that a police officer may arrest a person without warrant or Magistrate’s order where there is imminent likeliness of that person committing a cognizable offence and the commission of the offence cannot be prevented except by arresting him. But where these conditions are not met, the arrest will violate his fundamental rights under Articles 21 and 22 of the Constitution of India. In the present case, the Petitioner was having tea early morning at a tea stall. According to the respondents, on being questioned, petitioner gave no satisfactory explanation for having tea at that hour. Therefore, by invoking their powers under Section 151 CrPC, 1973, police officer arrested the petitioner for suspicious conduct. The Court while answering to the issue in question said that law does not require anyone to give an explanation for having tea, whether in the morning, noon or night. The ingestion of a cup that cheers, demands no explanation. The Court went on to say that while cutting chai is permissible and now even fashionable, cutting corners with the law is not. The petitioner's demand for compensation for illegal detention was however denied. [Vijay Lahu Patil v. The State of Maharashtra, Criminal Writ Petition No.1627 of 2013, decided on September 6, 2013]1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1627 OF 2013
Vijay Lahu Patil

versus
1. The State of Maharashtra


Coram : S.C. Dharmadhikari
& G.S. Patel, JJ.
Date : 6th September 2013

1. Rule. Respondents waive service. By consent, rule made
returnable forthwith and called for final disposal.
2. A well-known area of Kolhapur, Rajarampuri lies just to the
north-west of Shivaji University. The Ring Road runs past the
Rajarampuri Police Station. At around 11 am on the morning of
22nd February 2013, the Petitioner was, or so he says, having tea at
a road-side tea stall not far from the rear entrance to Shivaji
University. The 4th Respondent, the Sub-Inspector from the
Rajarampuri Police Station, was on patrol in the area, along with his
junior officers. They asked the Petitioner what he was doing. Mr
Joshi, Learned Advocate for the Petitioner, submits that the answer
is one that ought to have suggested itself. Yet the police found his
conduct suspicious. The Petitioner was arrested, the police invoking
their powers under Section 151 of the Code of Criminal Procedure,
1973 (“CrPC”).
3. Following the Petitioner’s arrest, the 4th Respondent made a
proposal to the 2nd Respondent, the Special Executive Magistrate,
that a good-behaviour bond be taken from the Petitioner under
Section 116 of the CrPC. The Magistrate ordered the execution of a

bond of Rs.4,000. The Petitioner complied. His statement was
recorded. He was asked whether he had understood the order made
under Section 111 of the CrPC. On his application, a copy of the
Station Diary was made available to him.
4. The Petitioner says his arrest was at 11 o’clock in the morning,
but the Station Diary puts the time of arrest at 3:30 pm. It is on this
basis that he mounts his claim for damages for illegal detention, but
that, in our view, is a subsidiary matter. The impugned orders under
the CrPC present far more fundamental problems.
5. Mr. Saste, Learned APP, invited attention to the annexures to
the Affidavit in Reply filed by the 4th Respondent to suggest that
the Petitioner is a hardened criminal, habitually given to criminal
activity. He has a very large number of cognizable criminal cases
registered against him. The local police were, he submits, therefore
justified in acting as they did and apprehending the Petitioner before
he committed yet another, a matter that seemed to them imminent
at the time, there being no other way of preventing the likely crime.
This, after all, he says, is the very purpose of Section 151 of CrPC.
Once that was done, Mr. Saste argues, proceedings under Section
107 of the CrPC, requiring security from the Petitioner for keeping
the peace, were the next logical and inevitable step. There is, in Mr.
Saste’s submission, no merit at all in the Petition; the impugned
actions are faultless.

6. Mr. Joshi, Learned Advocate for the Petitioners, disagrees. So
do we. There seems to be very little justification for the impugned
orders or even for taking the view the police claim they did. Why
exactly his behaviour was thought to be suspicious, we are not told.
We are only told that he has a very long line of criminal cases. A list
of these is annexed to the Affidavit in Reply. It shows that all the
cases, some 113 of them, are under the Gambling Act, with but one
invoking other provisions of the Arms Act and the Indian Penal
Code. This tabulation makes for interesting reading though not,
alas, to the benefit of Mr. Saste’s submissions. It shows that in a
substantial number of cases, the Petitioner has been acquitted. In
other cases, trials are pending. Between them, there is not a single
conviction, though even that would not have been justification
enough. Of the 113 cases tabulated, fully 108 are outside the
jurisdiction of the Rajarampuri Police Station. In his Affidavit in
Reply, the 4th Respondent claims that the other offences were
committed just outside the Rajarampuri Police Station’s
jurisdiction. To show that the Petitioner is a habitual offender, the
4th Respondent refers to a subsequent case (of March 2013). We do
not see how this can possibly assist the Respondents. The 4th
Respondent maintains that the Petitioner is a repeat offender and
that his acquittals are on what the 4th Respondent calls
‘technicalities’, such as witnesses turning hostile. Mr. Joshi is
justified in contending that the unavailability of witnesses or their
refusal to give evidence against the accused is not a mere
technicality; and, in any event, this is wholly irrelevant.

7. What is not in doubt, however, is that the only thing the
Petitioner was doing in the late morning of 22nd February 2013 was
having tea at a local tea-stall. The 4th Respondent says there is no
‘satisfactory explanation’ for this. This is bewildering. We were
unaware that the law required anyone to give an explanation for
having tea, whether in the morning, noon or night. One might take
tea in a variety of ways, not all of them always elegant or delicate,
some of them perhaps even noisy. But we know of no way to drink
tea ‘suspiciously’. The ingestion of a cup that cheers demands no
explanation. And while cutting chai is permissible, now even
fashionable, cutting corners with the law is not.
8. Sections 107 and 151 of the CrPC are, in terms, preventive,
not punitive. Embedded in Section 151 are conditions that must be
met for its invocation. A police officer may effect an arrest without a
Magistrate’s order and without a warrant only where he learns that
the arrested person is imminently likely to commit a cognizable
offence. He must, in addition, be satisfied that the impending crime
cannot otherwise be prevented. This means that the record must
reflect a subjective satisfaction as to all these requirements. Where
these conditions are not met, there is a violation of a person’s
fundamental rights under Articles 21 and 22 of the Constitution of
India. Similarly, a Magistrate’s jurisdiction under Section 107 is to
be exercised only in an emergent situation.1
1 Rajinder Singh Pathania & Ors. v State (NCT of Delhi) & Ors., (2011) 13
SCC 329, paras 17 and 18

9. Beyond saying that the Petitioner had no explanation for being
at the tea stall, we find nothing in the 4th Respondent’s Affidavit in
Reply. This, in our view, is insufficient compliance with the mandate
of Section 151. The Petitioner’s past history of criminal cases is
equally irrelevant, since it cannot possibly lead to any conclusion of
imminent criminal activity. We note that the cases listed by the 4th
Respondent go back as far as 1998. There is no subjective
satisfaction noted by the 4th Respondent or the 2nd Respondent on
material that lends itself to any objective test.
10. The Respondents seems also to have misunderstood the
frame of Chapter VIII of the CrPC. Sections 107 to 110 allow an
Executive Magistrate to issue a show cause notice to such persons
and under such conditions as are set out in those sections. Before
any such show cause is issued, there must be an order under Section
110, for Sections 107 to 110 all say that the show cause notice must
be issued “in the manner hereinafter provided”. Then follow the
sections that provide for service of the show cause notice and the
summons or warrant, an enquiry and a final order under Section 117.
This is, therefore, a five-step process: an order under Section 110,
followed by a show cause notice under Sections 107 to 110, then the
procedure under Sections 112 to 115, an enquiry under Section 116
and, finally, an order under Section 117. That an order under
Section 111 is a condition precedent to the issuance of a show cause
notice under Sections 107 to 110 is now well-settled.2 This is for
2 Dattaram Krishna Pedamkar v State of Maharashtra & Anr., 2009 (3)
Mah.L.J. (Cri) 47; Vasantkumar Jivrambhai Majithia v State of

good reason. The order under Section 111 is an important safeguard,
one of a web of checks and balances, against the potential abuse of
powers under Section 107 to 110. The show cause notice, to be
effective, must be something more than a mere suggestion received;
hence the words “in the manner hereinafter provided”. Any other
interpretation ends in a logical fallacy: if the order under Section 111
is to follow the show cause notices under Sections 107 to 110, then
the provisions of Setion 116 and 117 would be entirely otiose. This is
evidently incorrect. Section 110 is the brake-release that sets the
train of Sections 107 to 110 in motion. That train then passes
through the stations of Sections 112 to 115 and the enquiry under
Section 116 before reaching its terminus in Section 117.
11. Mr. Joshi is correct when he says that in the present case
there is only the combined proposal under Sections 151 and 107 of
the CrPC followed straightaway by the order under Section 111. No
opportunity seems to have been given to the Petitioner to show
cause. The entire procedure under Chapter VIII has been inverted,
the cart being put very firmly before the horse.
12. Mr. Joshi is also justified in contending that the entire process
is unlawful. Previous acquittals cannot be brushed aside like this.
This itself is a ground for relief and, at the very least, shows a
complete non-application of mind, if not a colourable exercise of
Maharashtra & Anr., 2005 All MR (Cri) 2951; Riyasat Shaukat Ali
Shaikh v State of Maharashtra & Anr., Criminal Writ Petition No.3039 of
2013, decision dated 3rd September 2013.

power, particularly when the previous cases referred to by the
Respondents are of some considerable historicity.3
13. There remains the question of the Petitioner’s claim for
compensation for illegal detention. Having regard to the decision of
the Supreme Court in Rajinder Singh Pathania,4 we are not inclined
to grant this relief.
14. The Petition succeeds in part. Rule is made absolute in terms
of prayer clause (a), which reads thus:
“(a) The Hon’ble Court may be pleased to issue an
appropriate writ/direction and may be pleased to call for
the records and proceedings of the initiated u/s. 151 of the
Code of Criminal Procedure, 1973 against the Petitioner
and after examining their validity may be pleased to quash
and set aside the proceedings u/s. 151 of The Code of
Criminal Procedure, 1973 against the Petitioner.”
(G.S. Patel, J.) (S.C. Dharmadhikari, J.)
3 Abdul Razzak Nannekhan Pathan v Police Commissioner, Ahmedabad &
Anr., (1989) 4 SCC 43; Ayub alias Pappukhan Nawabkhan Pathan v S.N.
Sinha & Anr., (1990) 4 SCC 552; Dinesh Vitthal Patil & Anr v State of
Maharashtra & Ors., 2012 All MR (Cri) 3582
 

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