JUDGMENT AND ORDER : Ujjal Bhuyan, J. 1. Heard Ms. D. Phukan, learned counsel for the petitioner, Ms. K.K. Choudhury, learned Government Advocate, Assam for respondent Nos. 1, 2 & 3, Mr. L.N. Dihingia, learned counsel for respondent no. 4 and Mr. J.C. Barman, learned counsel for respondent no. 5. Also heard Mr. A. Matlib, learned counsel for respondent no. 6. 2. By filing this petition under Article 226 of the Constitution of India petitioner has prayed for the following reliefs:- "It is therefore, prayed that Your Lordships may be pleased to admit this petition, Call for the records and issue a rule calling upon the respondents to show cause as to why a writ in the nature of Mandamus shall not be issued directing suitable disciplinary action to be taken against the respondent nos. 4 to 6 for the arrest/confinement of the petitioner and for extorting money from her in order to release her and award compensation/damages of Rs. 5,00,000/- (Rupees Five Lakhs) for the violation of the petitioner's fundamental rights and for humiliation, harassment and loss of reputation suffered by the petitioner and/or pass necessary order or orders as Your Lordships may deem fit and proper." 3. Petitioner claims to be an engineer by profession and belongs to a respectable family. Her husband is also an engineer and in connection with his professional work, he resides at Shillong. Petitioner resides with her mother at her Guwahati address as her father had expired. 4. Petitioner is working as manager in a company called Broadband Net Services Pvt. Ltd. (company). The company is engaged in the business of installation of towers and providing internet connection in the State of Assam. 5. One Mr. Safiqur Rahman Talukdar lodged first information before the Dispur Police Station on 08.04.2015 against the company alleging retention of security money amounting to Rs. 6,30,000/- collected from him for execution of work and dishonour of cheques amounting to Rs. 8,90,000/- issued by the company. On the basis of the first information, Dispur PS Case No. 678/2015 was registered under Sections 420/406 IPC. In the said FIR the main allegation was made against one Smt. Jharna Gogoi Das, wife of Sri Debojyoti Das, who was named as accused. 6. At about 1:00 a.m. of 25.11.2005 at the dead of night three police-men from Dispur Police Station i.e. respondent Nos. In the said FIR the main allegation was made against one Smt. Jharna Gogoi Das, wife of Sri Debojyoti Das, who was named as accused. 6. At about 1:00 a.m. of 25.11.2005 at the dead of night three police-men from Dispur Police Station i.e. respondent Nos. 4 & 5 along with a lady constable came to the residence of the petitioner. The two mobile phones of the petitioner were taken over by the policemen, and, thereafter, they took the petitioner to the police station in connection with the aforesaid police case. Though the petitioner and her mother objected to taking her to the police station at such unearthly hour, their objections were brushed aside and petitioner was taken away to the police station by the policemen at about 1:10 at night. Mother was also not allowed to go with the petitioner. After reaching the police station at about 1:40 a.m., she was taken to the MMC Hospital, Panbazar, Guwahati for medical examination. When the petitioner objected to such medical examination the policemen did not consider her plea and forcibly took her to the MMC Hospital. Petitioner was also not allowed to communicate with her husband. 7. Petitioner was brought back from the MMC Hospital to Dispur Police Station at around 03:30 am. Thereafter, she was taken by a lady constable to Ujala Shelter Home, Sixth Mile, Guwahati, where after, she was kept there till 11:30 am. Petitioner was made to share a room with various women, who were arrested and detained in connection with criminal cases. 8. Petitioner was escorted by the police personnel from Ujala Shelter Home, Six Mile, to Dispur Police Station at around 11:30 am in the morning. In the Dispur Police Station, petitioner met her mother, who was waiting for her since 06:00 am in the morning. In the police station, petitioner was questioned by respondent No. 4 in his room. According to the petitioner, an unlawful demand of Rs. 50,000/- was made by respondent No. 4 to the petitioner, saying that unless she paid the said amount, she would not be allowed to go home. In the meanwhile, husband of the petitioner arrived from Shillong. All this while, neither the petitioner nor her mother were informed as to what were the allegations against her. Faced with such a situation and desperate to return home, an amount of Rs. 10,000/- was paid to respondent no. In the meanwhile, husband of the petitioner arrived from Shillong. All this while, neither the petitioner nor her mother were informed as to what were the allegations against her. Faced with such a situation and desperate to return home, an amount of Rs. 10,000/- was paid to respondent no. 4, which amount was withdrawn by her husband from a nearby ATM. Ultimately, petitioner was served with a copy of notice under Section 41 A of the Code of Criminal Procedure, 1973, dated 25.11.2015, asking her to be present in the police station on 30.11.2015 in connection with the aforesaid case. However, copy of the FIR was not given to the petitioner despite request made by her and her husband. Ultimately, petitioner was allowed to go home at around 06:00-06:30 pm, in the evening of 25.11.2015 and her two mobile phones were handed over to her. 9. Aggrieved by such humiliation meted out to her, petitioner submitted a complaint dated 30.11.2015 before the Commissioner of Police, Guwahati city (respondent no. 2). Statement of the petitioner was recorded by the DCP (Crime), Sri Swapnanil Deka, in the first week of December, 2015, following her complaint. Subsequently, she obtained a certified copy of the FIR of Dispur P.S. Case No. 678 of 2015 from the Court of Chief Judicial Magistrate, Kamrup (Metro), Guwahati on 31.12.2015. 10. On 02.01.2016, petitioner lodged first information against the erring police officials of Dispur Police Station before the Chandmari Police station, which was registered as Chandmari PS Case No. 10/2016 under Sections 342/384/385 of the Indian Penal Code, 1860. 11. Contending that arrest/confinement of the petitioner from 01:00 am till 06:30 pm of 25.11.2016 was illegal and violated petitioner's liberty and right to dignity under Article 21 of the Constitution of India, present writ petition has been filed seeking the reliefs as indicated above. 12. Notice in this case was issued on 08.01.2016. 13. Commissioner of Police, Guwahati city, i.e. respondent no. 2 has filed affidavit. In the affidavit, it is stated that as per record of Dispur PS Case No. 678 of 2015, petitioner is the manager of the company and had received the agreed amount as per agreements entered into with the customers of the company either by herself or on behalf of Smt Jharna Gogoi Das, who was the Managing Director and had issued acknowledgment receipts. Therefore, the Investigating Officer of the case (respondent no. Therefore, the Investigating Officer of the case (respondent no. 4) along with respondent no. 5 and one woman home-guard, Mirjana Begum of Dispur Police Station had gone to the residence of the petitioner at about 02:00 am (midnight) on 25.11.2015 and brought her to Dispur Police Station for interrogation and for recording her statement. During examination by the Investigating Officer, petitioner admitted that she was aware of lodging of the FIR by Mr. Safiqur Rahman Talukdar. Mobile phones of the petitioner were taken into possession by the Investigating Officer to ensure that call log details could not be manipulated by the petitioner. Call log details of the mobile phones of the petitioner revealed that petitioner had made contact with Smt. Jharna Das Gogoi, who was absconding. Mobile handsets were returned back to the petitioner after obtaining the call details on the same day. Investigating Officer took her to the police station for interrogation in connection with the case. As per record of Dispur Police Station, Investigating Officer along with police staff had arrived at Dispur Police Station at 02:30 am, vide Dispur GDE No. 1782 dated 25.11.2015, along with petitioner and one Shri Pratul Roy, vendor of the said company. As it was late into the night, petitioner was sent to the Ujala Shelter Home for her safe custody after conducting requisite medical examination at MMC Hospital. However, petitioner was brought back to the Dispur Police Station in the late morning hours from Ujala Shelter Home for further investigation in connection with the case. It is stated that as per direction of the Commissioner of Police, Guwahati city, an enquiry was conducted by the Deputy Commissioner of Police (Crime), Guwahati, on the basis of the complaint lodged by the petitioner on 30.11.2015. The Enquiry Officer found the allegation of petitioner being picked up by respondent Nos. 4 and 5 at around midnight to be correct, but did not find any material to substantiate the allegation of demand of money by the Investigating Officer, respondent no. 4, due to lack of sufficient independent witnesses. Notice under Section 41 A CrPC, dated 25.11.2015 was served upon the petitioner directing her appearance before the Dispur Police Station on 30.11.2015, at around 10:00 pm. Pursuant to such notice, petitioner had appeared on the date fixed and after recording her statement, she was allowed to leave the police station. 13.1. 4, due to lack of sufficient independent witnesses. Notice under Section 41 A CrPC, dated 25.11.2015 was served upon the petitioner directing her appearance before the Dispur Police Station on 30.11.2015, at around 10:00 pm. Pursuant to such notice, petitioner had appeared on the date fixed and after recording her statement, she was allowed to leave the police station. 13.1. In respect of the enquiry, it was stated that Sri Swapnaneel Deka, APS, Deputy Commissioner of Police (Crime), Guwahati, conducted the enquiry. In the course of the enquiry, statement of the petitioner was recorded. He also recorded the statements of other persons. As per finding of the enquiry, both respondent Nos. 4 and 5 were taken off from duty in the Dispur Police Station and sent to the Police Reserve. Departmental Proceeding Nos. 67 and 68 of 2015 were drawn up against them. It is admitted that respondent Nos. 4 and 5 had failed to comply with the Circular No. 6 dated 09.04.2010, circulated from Assam Police Headquarters, Ulubari, Guwahati. Both the officers had violated the provisions of Section 161 (1) CrPC and had also violated the provisions of Assam Police Manual Part-V Rule 210-A (5). Based on the finding of the enquiry, respondent No. 2 had withdrawn respondent Nos. 4 and 5 from Dispur Police Station and sent them to the Police Reserve. Disciplinary Proceeding has also been initiated. 13.2. Regarding the allegation against the Officer-In-Charge, Dispur Police Station, i.e. respondent no. 6, it was stated that he had no knowledge about the incident of picking up a lady at midnight. When he came to know about the incident, he immediately made arrangements to release the petitioner from the police station. Regarding the allegation of demand of bribe, the said allegation could not be substantiated due to lack of sufficient independent witnesses. 14. While petitioner has filed rejoinder affidavit to the affidavit of respondent no. 2, respondent no. 4, on the other hand, has filed a detailed affidavit. It is stated in the affidavit that it was under compelling circumstances that the petitioner had to be picked up at midnight from her residence though the petitioner was not named as an accused in Dispur Police Station Case No. 678 of 2015. It was felt that information with the petitioner would be useful to the investigation, which necesitated her immediate interrogation by the police. It was felt that information with the petitioner would be useful to the investigation, which necesitated her immediate interrogation by the police. Respondent No. 4 has asserted that he had not violated any provision of law. Possession of the mobile phones of the petitioner had to be taken by the police as it was found that she was contacting Smt Jharna Gogoi Das, asking her to move to a safer place, who being the named accused, was absconding arrest, which indicated her complicity. Allegation of demanding and taking bribe has been denied. The company was initially known as Java Broadband Service, which was subsequently changed to Broadband Net Services Limited (BNSPL). Petitioner had changed her residence from House No. 23, Janakpur, Kahilipara, to a house near Holy Home School, Chandmari and, thereafter, moved to her present residence at Flat No. 3/3, Housing Colony, Chandmari. 14.1. Police had visited the house of the petitioner several times in connection with Dispur PS Case No. 678 of 2015, but petitioner could not be arrested due to her absence from her residence. After getting specific information about the petitioner's presence in her residence in the midnight of 25.11.2015, respondent no. 4, along with 2 (two) police personnel, including a woman police constable, immediately went to the residence of the petitioner and brought her to the police station for interrogation. It is admitted that the police team along with the petitioner had arrived at Dispur Police Station at about 02:30 am, as per Dispur GDE No. 1782 dated 25.11.2015. Petitioner was sent to MMC Hospital for medical examination to ascertain the medical status and since it was late at night petitioner was sent to Ujala Shelter Home for her safe custody. She was brought back to Dispur Police Station from Ujala Shelter Home at about 11:30 am for further interrogation as per Dispur GDE Nos. 1781 and 1806 dated 25.11.2015. Petitioner's complicity in the offence is quite evident which required her interrogation for proper investigation but she could not be found out. On secret information, her location could be traced out and to prevent her from doing the disappearing act, she had to be immediately apprehended in the manner indicated. In such circumstances, detention of the petitioner cannot be said to be illegal. She was allowed to leave the police station with notice under Section 41 A CrPC for her appearance on 30.11.2015. 15. In such circumstances, detention of the petitioner cannot be said to be illegal. She was allowed to leave the police station with notice under Section 41 A CrPC for her appearance on 30.11.2015. 15. Ms D. Phukan, learned counsel for the petitioner has vehemently argued that the impugned action of the police personnel had caused serious harm and damage to the reputation of the petitioner. Besides causing harassment to her, her right to life and personal liberty as guaranteed under Article 21 of the Constitution of India stood violated. She has referred to the cases of Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273 ; Mehmood Nayyar Azam vs. State of Chattisgarh, reported in (2012) 8 SCC 1 and the decision of the Apex Court dated 03.06.2016 in Dr. Rini Johar vs. State of M.P. [Writ Petition (Criminal) No. 30 of 2015], to support her contention that this Court may impose exemplary cost on the respondents for their action, which had caused serious damage and humiliation to petitioner's dignity and reputation in the society. She submits that picking up of a lady by police personnel in uniform from her residence in the dead of night has severely damaged her reputation in the society and has caused incalculable harm to her. Her fundamental right to life and liberty under Article 21 of the Constitution of India stood violated. She also submits that the enquiry conducted by the Commissioner of Police had buttressed the grievance of the petitioner. Therefore, this Court while exercising its jurisdiction under Article 226 of the Constitution of India as a public law remedy, may award suitable compensation to the petitioner besides directing appropriate action against the erring policemen. 16. While Mrs. Choudhury, learned State Counsel submits that she has nothing much to say on the enquiry report based on the enquiry conducted by the Commissioner of Police, Mr. Dihingia, learned counsel appearing for respondent no. 4 and Mr. J.C. Barman, learned counsel appearing for respondent no. 5, on the other hand, vehemently argued that because of the conduct of the petitioner herself such an incident had occurred. Petitioner was avoiding the police by frequently changing her residence and when respondent no. 4 got secret information about the presence of the petitioner in the Chandmari residence immediate action was taken to apprehend her. 5, on the other hand, vehemently argued that because of the conduct of the petitioner herself such an incident had occurred. Petitioner was avoiding the police by frequently changing her residence and when respondent no. 4 got secret information about the presence of the petitioner in the Chandmari residence immediate action was taken to apprehend her. Action of the police was taken in good faith and for the sake of investigation in connection with Dispur PS Case No. 678 of 2015. On a query by the Court, both Mr. Dihingia and Mr. Barman submitted that the respondents were sensitive enough in their investigation and asserted that no wrong was done by arresting the petitioner in the midnight of 25.11.2015. According to them, petitioner was arrested. In fact, they were emphatic in their assertion that petitioner was arrested. 17. Submissions made by learned counsel for the parties have been considered and also perused the materials on record. 18. Unlike other cases of similar nature, in this case the primary facts are not in dispute. The factum of petitioner's arrest between 01:00 to 01:30 am of 25.11.2015, then taking her to the Dispur Police Station and thereafter, conducting medical examination of the petitioner at the dead of night in the MMC hospital, where after, she was brought back to the Dispur Police Station at about 02:30 a.m. and, then sent to the Ujala Shelter Home at about 03:30 am are all admitted facts. The further fact that the petitioner was brought back from the Ujala Shelter Home to the Dispur Police Station at about 11:30 am of 25.11.2015 is also admitted. 19. At the outset, Court would like to make it abundantly clear that in this proceeding, it is not considering the accusations against the petitioner or examining involvement of the petitioner in Dispur PS Case No. 678 of 2015. That is within the domain of the investigating authority and law will take its own course. The issue before the Court in this proceeding is whether such arrest of the petitioner is legally tenable; if not, whether it has violated the fundamental right of the petitioner guaranteed under Article 21 of the Constitution of India and if so, to what relief, petitioner is entitled to. The other aspect of the matter regarding action against the respondent Nos. The other aspect of the matter regarding action against the respondent Nos. 4 and 5 may not be gone into by the Court at this stage since the Department has already initiated departmental proceeding against respondent nos. 4 and 5. 20. Before proceeding further, it would be relevant to note that in his affidavit, respondent no. 4 has used the expression "picking up" while describing the manner of bringing the petitioner to the police station. But while making their submissions, learned counsel for respondent nos. 4 and 5 were quite emphatic that petitioner was arrested. However, in paragraph-14 of the affidavit, it is stated that petitioner was allowed to leave the police station with notice under Section 41 A CrPC with the direction for her appearance before the police station on 30.11.2015 at around 10:00 am. 21. Section 41 A has been inserted in the CrPC by way of an amendment in the year 2009 w.e.f. 01.11.2010. Sub-Section (1) says that the police officer in all cases where arrest of a person is not required under Section 41 (1), issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognisable offence, to appear before him or at such place as may be specified in the notice. As per Sub-Section (2), when such a notice is issued, it shall be the duty of that person to comply with the terms of the notice. If there is compliance to such notice, the person concerned should not be arrested unless the police officer is of opinion for which reasons have to be recorded that he ought to be arrested [Sub-Section (3)]. But as per Sub-Section (4), if there is non-compliance, the police officer may arrest the person concerned for the offence mentioned in the notice. Two things are noticeable here. Notice under Section 41 A is to be given before arrest. If there is compliance to the terms of the notice, ordinarily he is not to be arrested. But once a person is arrested, issuance of notice under Section 41 A for further appearance before police may not be warranted. Two things are noticeable here. Notice under Section 41 A is to be given before arrest. If there is compliance to the terms of the notice, ordinarily he is not to be arrested. But once a person is arrested, issuance of notice under Section 41 A for further appearance before police may not be warranted. Reverting back to the facts of the present case, was it necessary for the police to "pick up" the petitioner from her residence in the dead of night, bring her to the police station, send her to the hospital for medical check-up, thereafter, keeping her in a shelter home, bring her back to the police station and detaining her the whole day only to be allowed to go back home in the evening with a notice under Section 41 A CrPC for further appearance before the police. Is this the mandate of Section 41 A CrPC? 22. Certainly, this is not the mandate of Section 41 A CrPC. If the petitioner was arrested as contended by learned counsel for respondent Nos. 4 and 5, there was no necessity of notice being served on her under Section 41 A CrPC. Even if petitioner was not arrested, it was not necessary to bring her to the police station at night and detain her for over 12 hours to serve her a notice under Section 41 A CrPC. Such serving of notice under Section 41 A CrPC was clearly a desperate attempt to shadow up the illegality already committed. 23. At this stage, Section 46 of the Code of Criminal Procedure, 1973, which deals with how an arrest has to be made, may be adverted to. Sub-Section (4) of Section 46 is relevant and is extracted hereunder:- "Save in exceptional circumstances no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made." 24. A perusal of Sub-Section (4) of Section 46 would go to show that ordinarily, no woman can be arrested after sunset and before sunrise. A perusal of Sub-Section (4) of Section 46 would go to show that ordinarily, no woman can be arrested after sunset and before sunrise. But if an exceptional circumstance exist, a woman police officer shall make a written report to the jurisdictional Judicial Magistrate of the first class and obtain prior permission of the said Magistrate. Therefore, it is evident that only in exceptional circumstances, a woman can be arrested after sunset and before sunrise. Such an arrest has to be effected by a woman police officer by obtaining prior permission of the jurisdictional Judicial Magistrate of the first class by submitting a written report. 25. This is a safeguard which is in tune with our constitutional jurisprudence. The Supreme Court in a catena of judgments, most notably in D.K. Basu vs. State of West Bengal, reported in AIR 1997 SC 610 and Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273 , has laid down various safeguards to be followed while making arrest. It has also been clarified that being vested with the power of arrest, would not be enough to effect the arrest. The police officer effecting the arrest should satisfy himself that such arrest is really necessary. 26. Having noticed the above, the enquiry report submitted by the Deputy Commissioner of Police (Crime), Guwahati, to the Commissioner of Police, Guwahati city on 10.12.2015, may now be adverted to. Enquiry findings are extracted hereunder:- "Findings:- From the above, it can be construed that SI Montu Ram Borah, 2nd Officer-in-Charge, Dispur P.S. on the night of 24.11.2015 at 11.50 PM vide Dispur GDE No. 1768 dated 24.11.2015 brought Shri Pratul Roy from his residence located at AG Bus Stop, Lakhi Mandir, Beltola to the P.S. for sake of interrogation in connection with Dispur PS Case No. 678/15 U/S 406/420 IPC. Shri Pratul Roy is the vendor of "Broadband Net Services Private Ltd." and has invested money by installing broadband towers in Dhubri and Bongaigaon Districts of Assam. Shri Pratul Roy was brought to find out address of Smti Tanuja Roy, Manager of the said company. After interrogating Shri Pratul Roy, SI Montu Ram Borah, 2nd Officer-in-Charge Dispur PS decided to pick up Mrs. Tanuja Roy, Manager, Broadband Net Services Private Ltd, with a motive to find out whereabouts of Mrs. Shri Pratul Roy was brought to find out address of Smti Tanuja Roy, Manager of the said company. After interrogating Shri Pratul Roy, SI Montu Ram Borah, 2nd Officer-in-Charge Dispur PS decided to pick up Mrs. Tanuja Roy, Manager, Broadband Net Services Private Ltd, with a motive to find out whereabouts of Mrs. Jharna Gogoi Das, Chairperson of the said company, who is absconding, SI Montu Ram Borah then discussed and took assistance from SI Arun Baruah, of Dispur PS and both decided to pick up the lady at night itself for interrogation. They took help from PAPA 5 (Patrolling Vehicle) headed by ABSI Samaresh Baruah and staff to proceed towards Chandmari to pick up Mrs. Tanuja Roy. One lady Home Guard Mirjana Begum also accompanied them. They had taken Shri Pratul Roy, picked up earlier with them as he knew that Smti Tanuja Roy, Manager of the said company is staying in Chandmari Colony area. This has a reference to Dispur P.S. GDE No. 1777 dated 24.11.2015 at 12 AM (midnight). Thereafter, SI Arun Baruah made a phone call at around 11:30 PM of 24.11.2015 to the lady Mrs. Tanuja Roy from his mobile number (98644-62227) without identifying himself and tried to get the residential address of Mrs. Tanuja Roy. Being a responsible Police Officer, SI Arun Baruah should have identified himself instead of pretending as someone else by calling a lady at midnight. SI Montu Ram Borah, 2nd Officer-in-Charge, Dispur PS. and staff arrived Chandmari P.S. and made General Diary Entry requesting to depute staff to accompany them in the search. Accordingly, one police team of Chandmari P.S. accompanied SI Montu Ram Borah, 2nd Officer-in-Charge, Dispur P.S. At about 1 AM (midnight) of 25.11.2015, the police team under the leadership of SI Montu Ram Borah reached the house of Mrs. Tanuja Roy. Immediately, after reaching the house of petitioner Mrs. Tanuja Roy, SI Montu Ram Borah took the mobile phones of petitioner and picked up her from residence and brought to Dispur P.S. After reaching Dispur P.S. she was sent for medical examination and again brought back to Dispur PS and thereafter the petitioner was sent to "Ujala Shelter Home" Sixmile, Dispur for safe custody. SI Montu Ram Borah further directed phone duty officer ABSI Ripunjoy Kalita to keep Shri Pratul Roy in the thana lock up. SI Montu Ram Borah further directed phone duty officer ABSI Ripunjoy Kalita to keep Shri Pratul Roy in the thana lock up. Accordingly, ABSI Ripunjoy Kalita kept Shri Pratul Roy in the lock up but due to repeated pleading by Shri Pratul Roy, he was taken out of the lock up and made to sit on a bench inside the General Room for whole night. Same day i.e., 25.11.2015 at about 10 AM in the morning, SI Montu Ram Borah with the help of two lady police personnel brought back Mrs. Tanuja Roy from "Ujala Shelter Home" and interrogated in connection with the case. Her statement was also recorded U/s 161 Cr.PC. Though, SI Montu Ram Borah allowed the victim Mrs. Tanuja Roy to leave Dispur P.S. as per GD Entry at about 12:30 PM but in the CCTV footage collected from the P.S., it is clear that the victim Mrs. Tanuja Roy and Shri Pratul Roy left the P.S. at 17:21 hours only. The General Diary Entry vide Dispur P.S. GDE No. 1809 dated 25.11.2015 (12:30 PM) is not correct and found to be manipulated without the knowledge of Officer-in-Charge, Dispur P.S. by SI Montu Ram Borah. In course of enquiry, the complainant stated that SI Montu Ram Borah demanded Rs. 50,000/- for her release and for avoiding imprisonment and settling the issue, she in presence of her mother Smt. Smita Roy paid Rs. 10,000/- inside a file cover in the office chamber of 2nd Officer-in-Charge, SI Montu Ram Borah but in course of enquiry, I could not collect sufficient independent witnesses to substantiate the allegation. SI Montu Ram Borah along with SI Arun Baruah has failed to comply with the Circular No. 6 dated 09.04.2010 circulated from Assam Police Headquarters, Ulubari, Guwahati (Photocopy of the Circular No. 6 issued by AP Headquarter dated 9th April 2010 is enclosed as Annexure-"K"). However, ABSI Samaresh Baruah and ABSI Ripunjoy Kalita and other staff followed the instructions of SI Montu Ram Borah only and hence they are not liable. However, ABSI Samaresh Baruah and ABSI Ripunjoy Kalita and other staff followed the instructions of SI Montu Ram Borah only and hence they are not liable. Further, both the officers, namely SI Montu Ram Borah, 2nd Officer-in-Charge, Dispur P.S. and SI Arun Baruah, attached Officer, Dispur P.S. have violated the provisions of Sec 161(1) Cr.P.C. which states that, "Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or women resides." Further, the said officers have also violated the provisions of Assam Police Manual Part V Rule 210-A (5) which states that, "Women attending police investigation-as distinct from those under arrest-shall on no account be detained in police stations or with the police any longer than is necessary for the record of the information which they are willing to give. In no case shall they remain with the police between sunset and sunrise. If it is necessary, to take a woman witness about the country side for identification, etc. she shall be accompanied by a responsible male relation or a respectable male neighbour". In the instant case, SI Montu Ram Borah and SI Arun Baruah picked up a lady from her residence at 2 AM of 25.11.2015 without being accompanied by any male/female members of the victim as per case record of Dispur P.S. and brought to Dispur P.S. in the name of interrogation. Further, the said lady was kept in a Shelter Home even after the lady has her mother at home. SI Montu Ram Borah neither treated the petitioner as witness nor accused in the instant case. The victim lady was again brought to the P.S. in the morning and made to sit in the Dispur P.S. till 1720 hours as observed in the CCTV footage. Moreover, SI Montu Ram Borah has directed the phone duty officer ABSI Ripunjoy Kalita to keep Shri Pratul Roy in the lock up without arresting him Thus, SI Montu Ram Borah has violated the guidelines laid down by Hon'ble Supreme Court in WP (Crl) No. 539/86 D.K. Basu vs. Government of West Bengal & Others. Moreover, SI Montu Ram Borah has directed the phone duty officer ABSI Ripunjoy Kalita to keep Shri Pratul Roy in the lock up without arresting him Thus, SI Montu Ram Borah has violated the guidelines laid down by Hon'ble Supreme Court in WP (Crl) No. 539/86 D.K. Basu vs. Government of West Bengal & Others. Conclusion SI Montu Ram Borah and SI Arun Baruah being responsible police officers have failed to discharge their duties lawfully and as per set guidelines circulated by Assam Police Headquarter, Ulubari, Guwahati vide Circular No. 6 dated 09.04.2015. They have also violated express provisions laid down in Cr.PC. and Assam Police Manual. The act of the above officers tantamount to gross misconduct and negligence towards their lawful duties. Hence, the allegation brought by the petitioner Smt. Tanuja Roy of harassing her by picking up at midnight without any legal authority is proved beyond reasonable doubt. But allegation of taking bribe by SI Montu Ram Borah, 2nd Officer-in-Charge, Dispur P.S. could not be substantiated due to lack of sufficient independent witnesses." 27. Thus, as per conclusion of the Enquiry Officer, respondent nos. 4 and 5 had failed to discharge their duties lawfully and as per the Assam Police guidelines. They had also violated the express provisions laid down in the Code of Criminal Procedure, 1973 and the Assam Police Manual. Holding their acts as tantamounting to gross misconduct and negligence towards their lawful duties, it was held that the allegation of the petitioner of harassing her by respondent nos. 4 and 5 by picking her up at midnight without any legal authority was proved beyond reasonable doubt. But the allegation of taking bribe could not be substantiated due to lack of sufficient independent witnesses. 28. It is, thus, evident that there has not only been violation of Section 46 (4) of the Code of Criminal Procedure, 1973, but also, there is violation of Article 21 of the Constitution of India, inasmuch as, such illegal arrest had violated the personal liberty of the petitioner. 29. When there is violation of Article 21 of the Constitution, a writ court exercising its jurisdiction under Article 226 of the Constitution of India can certainly award compensation as a public law remedy. 29. When there is violation of Article 21 of the Constitution, a writ court exercising its jurisdiction under Article 226 of the Constitution of India can certainly award compensation as a public law remedy. This branch of civil rights jurisprudence was acknowledged by the Supreme Court of India in Rudul Shah vs. State of Bihar, reported in (1983) 4 SCC 141 where, it was explained that order for compensation in such a proceeding would be in the nature of a palliative and would not preclude the affected person from bringing in a suit to recover appropriate damages from the State and its erring officials. Compensation awarded under the public law remedy is in the nature of exemplary damages for violation of civil liberties of a person, which is not compensation as is understood under the private municipal law. 30. In Chairman, Railway Board vs. Chandrima Das, reported in (2000) 2 SCC 465 , which was a case relating to award of compensation by the High Court under Article 226 of the Constitution of India to a foreign national, who had suffered the heinous offence of rape within railway premises, the Apex Court while upholding the compensation held that where public functionaries are involved and the matter relates to violation of fundamental rights or the enforcement of public duties, the remedy would be available under the public law, notwithstanding that a suit for damages can still be filed under the private law. 31. This aspect of the law was further elaborated by the Supreme Court of India in Bhim Singh vs. State of J&K, reported in (1985) 4 SCC 677 where, it was stated that a constitutional court would have the right to award monetory compensation by way of exemplary cost or otherwise in the event of breach of a fundamental right. 32. In Nilabati Behera @ Lalita Behera vs. State of Orissa, reported in (1993) 2 SCC 746 , the view in Rudul Shah (supra) was approved and it was held that a superior court in exercise of its powers under Articles 32 and 226 of the Constitution of India would be competent to award compensation for contravention of a fundamental right. The Apex Court observed as follows:- "17. The Apex Court observed as follows:- "17. It follows that a 'claim in public law for compensation' for contravention of human rights and fundamental freedoms, 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 '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 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 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 Article 32 and 226 of the Constitution. This is what was indicated in Rudul Sah vs. State of Bihar and 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." 33. The above legal position has been approved and consistently applied by the constitutional courts of the country in several subsequent decisions, including in the case of Sanjay Gupta vs. State of U.P. reported in (2015) 5 SCC 280. 34. As already noticed above, in a proceeding of this nature, Court would not be guided by the principles, which would be available while determining compensation under the private law. Nature of compensation under both the jurisdictions is different as explained above. Here in this case, admittedly, the fundamental right of the petitioner under Article 21 of the Constitution of India was violated. 35. Having regard to the above, Court is of the view that compensation by way of exemplary cost of Rs. 2,00,000/- (Rupees Two Lakhs) imposed on the State would be just and adequate in the facts and circumstances of the case. 35. Having regard to the above, Court is of the view that compensation by way of exemplary cost of Rs. 2,00,000/- (Rupees Two Lakhs) imposed on the State would be just and adequate in the facts and circumstances of the case. Notwithstanding the order of compensation as above, it would also be open to the petitioner to avail her remedy under the private law to seek compensation, if so advised. In so far the criminal case is concerned, it is made clear that this order or any observation made herein would have no bearing on the investigation of the case. 36. Consequently, respondent no. 1, i.e. Commissioner and Secretary to the Government of Assam, Home Department, is directed to deposit the aforesaid amount of Rs. 2,00,000/- before the Registrar General of the Gauhati High Court at Guwahati, within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. Thereafter, it would be open to the petitioner to receive the said amount from the Registry of the Court on proper identification. It would also be open to the State to recover the said amount from the erring officials. 37. Writ petition is accordingly disposed of.