Kerala High Court: While dealing with a case where a person was wrongfully arrested by the police officials on ground of suspicion that he was a Maoist, a bench of A.M. Mustaque J, held that being a Maoist is no crime, and that police cannot detain a person on mere ground of suspicion that he is a Maoist, unless there is reasonable opinion that the activities of the person are unlawful.
In the present case, the Counsel for the petitioner P.S. Nair, contended that the arrest of petitioner on mere suspicion that he was a Maoist resulted into violation of right to liberty as enshrined in the Constitution, and that the arrest was made without following the procedure established by law. The Counsel for the respondent Sri Asaf Ali, contended that the petitioner was taken into custody by the police personnel in order to protect him from the group of agitated people assembled in the area.
The Court referred various case laws and also discussed Section 41 of Chapter V of CrPC to establish the essential elements and procedure established by law to constitute a legal arrest; flouting of which would result in deprivation of liberty. The Court also relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 where it was held that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. Therefore, it would be prudent for the police officer that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafide of the complaint”.
The Court observed that in the instant case, the petitioner was arrested as a suspected Maoist, was stripped by the police for body search, was interrogated and his movables were taken into custody, his house was also searched, without a clue about the commission of any offence by the petitioner. The Court noted that though the political ideology of Maoist does not synchronize with our constitutional polity, being a Maoist is no crime. The Court further noted that the private activities become unlawful only when the private thoughts or ideas become repugnant to the public values as envisaged under the law. The Court concluded that the police violated liberty of the petitioner by taking him to custody without satisfaction that he has been involved in any cognizable offence punishable under law, and that the State stridently defended the police action as part of duty to combat Maoist. Accordingly, the Court directed the State to compensate the petitioner as it is a case where the State moved to nab the Maoist like a predator vying for prey, which is nothing but disgusted aberration of law in the cloth of uniform and the protector has become aggressor. The Court further stated that the individual officers need not be mulcted with any liability as their action stems from the failure to create a balance between executive duty to secure liberty and of the law enforcement agencies to take action in a crime. Shyam Balakrishnan v. State of Kerala, 2015 SCC OnLine Ker 7591, decided on 22.05.2015
