SECTION 358

IN CONTEXT OF WRONGFUL INCARCERATION

VICTIMS OF ABUSE OF POWER

• Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985
“ "Victims" means persons who, individually or collectively, have suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights,
through acts or omissions that do not yet constitute violations of national criminal laws but of
internationally recognized norms relating to human rights.”

• Article 9(5), International Covenant on Civil and Political Rights

“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.”
SECTION 358
358. Compensation to persons groundlessly 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.
ISSUES WITH SECTION 358

• Limited to situations where a person causes a police officer to arrest.

• Appears to Magistrate that there was no sufficient ground for causing the arrest.
• Meagre compensation.
• The standard of proof is extremely high.
MALLAPPA V. VEERABASAPPA,
(1977) SCC ONLINE KAR 170
When the police officer receives a complaint relating to a cognizable offence he starts the
investigation under section 157 Cr. P.C. If it is a cognisable offence, arrests can be made without
warrant under Section 41 Cr. P.C. It is also provided under Section 157(1)(b) that if it appears to
the police officer that there is no sufficient ground for entering on an investigation he may not
investigate the case. In other words, it is for the police officer to decide if there are sufficient
grounds to investigate. If according to his decision a cognizable offence is committed, he will
effect the arrest. Therefore, it is the police officer who investigates and makes the arrest and the
complainant, if at all can be considered to have a nexus with the arrest, it is rather indirect and
remote. Some direct and proximate nexus between the complainant and the arrest is
contemplated for applying Section 358.
MALLAPPA V. VEERABASAPPA,
(1977) SCC ONLINE KAR 170
It is not difficult to visualise a case where under proviso (b) of section 157(1) the police officer
does not propose to hold the investigation. The complainant is not estopped from filing
objections before the police officer or even before the Magistrate. He can ask for investigation
leading to the arrest of the accused. Perhaps in that case, it may not be difficult to argue that it
was the complainant who caused the arrest as the police officer initially did not arrest because
according to his information the case was not fit for investigation. Therefore, something more is
needed than the mere information sent to the police officer in order to hold that the person
who filed the police complaint caused the arrest within the meaning of section 358. In other
words, the test should be that but for the efforts of the complainant the arrest could not have
been effected. Hence, it could not be stated in the present case that it was the complainant who
caused the arrest of these accused.
BHIM SINGH V. STATE OF J&K
(1985) 4 SCC 677
• To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the
intervening night of 9-10 September, 1985 as there was a meeting of the Assembly on 11th September and the police
were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to
Srinagar to attend the session of the Legislative Assembly. We can only say that the Police Officers acted in a most
high-handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the
personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder
what may happen to lesser mortals!
• Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of
citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order
should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police
officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower
rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher
echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on
the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with
impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and
adequately compensated, he must be.
RUDUL SAH V. STATE OF BIHAR
(1983) SCC 4 141
It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be
enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to
be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the
important question for our consideration is whether in the exercise of its jurisdiction under article 32, this Court
can pass an order for the payment of money if such an order is in the nature of compensation consequential upon
the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained
illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus
petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his
detention in the prison- after his acquittal was wholly unjustified. He contends that he is entitled to be
compensated for his illegal detention and that we ought to pass appropriate order for the payment of
compensation in this Habeas Corpus petition itself.

We cannot resist this argument.