Bombay High Court
Mahesh Gangaram Badgujar vs The State Of Maharashtra on 15 July, 2014
Bench: S.S. Shinde, P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO.207 OF 2002
1) Mahesh Gangaram Badgujar,
age: 25 years, occ: Labour
Contractor, r/o. Shivaji chowk,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
2)
Deepak s/o. Dashrath Ahire,
age: 25 years, occ: labour,
r/o. Shivaji chowk,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
3 ) Prakash s/o.Ramdas Marathe,
age: 22 years, occ: labour,
r/o. Shivaji chowk,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
4) Vinod s/o Ramkrishna Wagh,
age: 20 years, occ: business,
r/o. Shivaji chowk,
Sindkheda, Tal: Sindkheda,
Dist: Dhule
5. Hemant s/o. Khandu Chitte
age: 20 years, occ : business,
r/o. Shivaji Chowk,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
6) Satish s/o. Raghuvir Choudhary,
age: 20 years, occ: Pvt. service,
r/o. Shivaji Chowk,
Sindkheda, Tal: Sindkheda,
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Dist: Dhule.
7) Mahendra s/o. Shivdas Tamkhane,
age: 25 years, occ: labour,
r/o. Adarsha Colony,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
8) Prakash s/o. Ramdas Bhil,
age: 30 years, occ: tractor driver,
r/o. Varpada, Bhilati,
Sindkheda, Tal: Sindkheda,
Dist. Dhule.
9)
Bapu Motiram Phule,
age: 35 years, occ : labour,
r/o. Near Bus Stand,
Bhilati, Sindkheda,
Tal: Sindkheda, Dist: Dhule.
10) Aba Birbal Bhil,
age: 25 years, occ: labour.
r/o near Water Tank,
Sindkheda, Tal: Sindkheda,
Dist: Dhule.
..PETITIONERS
VERSUS
1) The State of Maharashtra,
2) Superintendent of Police,
Dhule, Dist: Dhule.
3) Ramesh s/o Laxman Janorkar,
age: 45 years, occ: police
Inspector, posted in the
office of Superintendent of
of Police at Dhule.
4) Shri. Rathod G.S.
age: 50 years, occ: Sub-
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Divisional Police Officer,
Shirpur, Dist: Dhule.
5) Shri. U. S. Choudhary,
Age : 45 years, occ: Police
Inspector, Sindkheda Police
Station, Sindkheda,
Tal: Sindkheda, Dist: Dhule.
6) Shri. Mukund Patil,
age: 35 years, occ: P.S.I.
of Songir Police Station,
Dist: Dhule.
7)
Shri.Shantaram Patil,
age: 32 years, occ: Police
Constable, Sindkheda Police
Station, Sindkheda, Tal: Sindkheda,
Dist: Dhule.
8) Shri . Altaf Beg Mirza
age: 35 years, occ . Police
Constable, Shirpur Police Station,
Shirpur, (Body guard of S.D.P.O.
Shri. Rathod). ..RESPONDENTS
.....
Shri.C.R. Deshpande, Advocate for petitioners.
Shri K.M. Suryawanshi, for respondent nos. 1 and 2
Shri. Joydeep Chatterjee, Advocate for respondent Nos. 4
to 8.
.....
CORAM: S.S. SHINDE & P.R. BORA, JJ.
RESERVED ON: 03.07.2014.
PRONOUNCED ON: 15.07.2014.
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JUDGMENT:[Per Shinde, J]
1. This petition has been filed praying therein for directions to the respondents No.3 to 8 to pay each of the petitioners an amount of Rs.1,00,000/- for violation of their fundamental rights due to illegal arrest, detention, assault and, mental and physical torture to them while they were in police custody. Further prayer is made for quashing FIR. There is also a prayer seeking directions to take appropriate departmental action against respondents No.3 to 8 for violation of fundamental rights of the petitioners due to illegal arrest, detention, assault and, mental and physical torture to the petitioners while they were in police custody. There is further prayer to direct the respondent No.6 Mr. Mukund Patil, P.S.I., Songir Police Station to pay the petitioner No.3 Prakash Marathe an additional amount of Rs.2,00,000/- due to severe assault by Mukund Patil, as the ears of the petitioner No.3 have become permanently disabled and lost its hearing capacity to greater extent.
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2. The petitioners are residents of Sindhkheda, taluka Sindhkheda, District Dhule. They are followers of Bajrangdal. They are also involved in social activities.
3. It is case of the petitioners that, there is one "Idgah"
at Sindkheda situated in front of Rest house on Sindkheda to Varpada road. There were three "Gumbaj"
to the said "Idgah". On 14.3.2002 at about 8.00 a.m. one Shaikh Mushir Osman Shaikh r/o. Sindkheda had filed one F.I.R. in Sindkhda Police Station stating that in the night intervening 13.3.2002 and 14.3.2002 some unknown persons have damaged one of the Gumbaj of the said Idgah. On the basis of the said F.I.R. the Crime No.22/2002 came to be registered in Sindkheda police station.
4 It is case of the petitioners that, after receiving the F.I.R. of Mushir Shaikh the political activities were geared up in Sindkheda and as a result of it the police authorities in collusion with some influential persons in village Slndkheda had determined to teach a ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 6 lesson to the petitioners and other members of Bajrang Dal who were active in the work of Bajrang Dal. As a result of the said determination of the police and rivals of the petitioners, all the petitioners were called for in the police station at Sindkheda and have been dealt with by Police Inspector Mr. U.S.Choudhary. The petitioner no. 1 Mahesh Badgujar and petitioner no.2 Deepak Dashrath Ahire were called in Sindkheda police station at about
11. 00 a. m. on 14.3.2002. They were taken to the police station in police Jeep of Sindkheda police station and similarly Prakash Ramdas Marathe and Vinod Ramkrishna Wagh, the petitioners no. 3 and 4 were brought in Sihdkheda police station within half an hour i.e. till 11.30 a.m. on 14.3.2002. All the four petitioners and some other persons of Bajrang Dal were taken to Songir police station in the Jeep of L.C.B. Dhule. The petitioners no. 1 to 4 and others were taken to Songir police station at about 1.00 p.m. on 14.3.2002. The petitioners no. 1 to 4 and others were kept in lockup of Songir police station for whole day and till 12.00 'O' clock (mid night) Shri. Rathod who is Sub Divisional Police ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 7 Officer at Shirpur had come to Sindkheda police station and was sitting in the cabin. Mahesh Badgujar and Deepak Ahire were called by Shri. Rathod in his cabin from police lockup. At that time P.S.I. Mukund Patll of Songir police station and Mr. U. S. Choudhary of Sindkheda police station and other police staff were present in the cabin of Mr.Rathod. Mr.Rathod asked Mahesh as well as Prakash about the commission of the offence. Both of them replied that they do not know anything nor they are involved in the commission of the offence. All of a sudden Police Inspector U.S.Choudhary and P.S.I. Mukund Patil of Songir police station started assaulting petitioners no. 1 and 2. The petitioner No.l Mahesh has been assaulted by U.S.Choudhary with stick on his back, waist, palms, and the feet. Mukund Patil P.S.I. of Songir police station assaulted Mahesh Badgujar with his hands on his both the ears and because of which the petitioner no.l has lost his hearing capacity to a greater extent. Mr. Rathod assaulted Mahesh Badgujar with kicks and fists. Mahesh Badgujar had sustained bleedings injury at his jaw and his clothes were stained ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 8 with blood. The police had been to the house of the petitioner no. 1 and brought his cloths and asked him to change the clothes. The blood stained clothes of the petitioner no.1 are still in the possession of the police of Sindkheda police station. Similarly Deepak Ahire had received bleeding injury at his right leg and his pant was stained with blood. Police Sub-Inspector Moglaikar had brought the cloths of the accused and took cloths removed from their person which were stained with blood. Deepak Ahire was assaulted by Mr.U. S. Choudharv on his back, waist by sticks. P.S.I. Mukund Patil and Altaf Beg assaulted Deepak Ahire with sticks, fists and kicks. Rathod assaulted Deepak Ahire with sticks, kicks and fists. Similarly, Prakash Marathe was asassaulted by the police personnel in Songir police station. Prakash Marathe has been assaulted by U.S.Choudhary with sticks on his back and buttocks.
P.S.I. Mukund Patil assaulted Prakash Marathe very severely at his both the ears resulting in loss of hearing of Prakash Marathe. The petitioner no.4 Vinod Wagh has been assaulted by Mr.Rathod, S.D.P.O. with kicks and ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 9 fists. He has been assaulted by Mr. Chaudhary with kicks, fists and sticks. Whereas Mukund Patil assaulted him at ears with leather belt. Vinod Wagh was made to sit in a tyre of scooter or some other vehicle and thereafter he was assaulted at his palm, back and also on buttock, and also by hitting tyres with sticks, it was made unbearable and painful to Vinod Wagh, but without any more visible injuries, due to requiring him to sit in the tyre.
5 It is case of the petitioners that, the petitioners no. 1 to 4 were severely beaten and assaulted and were taken to village Nardana in the Primary Health Center. They reached Nardana at about 3.00 a.m. on 15.3.2002. At the same time the other accused persons were brought to Primary Health Center Nardana from Sindkheda. At about 3.00 a.m. all the 10 petitioners were examined at Nardana in the Primary Health Center. All the petitioners tried to inform the Medical Officer, Nardana that they have been severely beaten and there are injuries on their person and requested him to give ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 10 the treatment for their injuries. The petitioner no.1 and petitioner no.2 had requested the Medical Officer Nardana to treat them for the bleeding injury. But no heed was paid to their request. The petitioner no.3 had complained before the Medical Officer Nardana that he could not hear due to severe injuries inside the ears.
However, the medical Officer Nardana ignored the same.
The petitioner No. 4 requested the Medical Officer Nardana that, he is T.B. patient and requires regular treatment. He had made request to provide him tablets which he is taking by way of treatment for T.B. in routine. But the said tablets were not provided to him.
Similarly, the other petitioners also complained the Medical Officer for pain and injuries on their person, but the Medical Officer did not pay any heed. The petitioners apprehend as well as believe that Medical Officer, Nardana did not care for the complaints of the petitioners, under the influence of the police officers and did not give any treatment. It is case of the petitioners that, the police are not coming forward with the medical certificates issued by the Medical Officer Nardana.
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6. It is case of the petitioners that, the petitioner nos.
5 to 10 were brought from their respective houses in Sindkheda police station on 14.3.2002 during the day time and were severely beaten/assaulted in the said police station. The petitioner No.5 Hemant Chitte was brought in police station at 7.15 p.m, from his house. In his cabin police inspector Mr. Choudhary assaulted Hemant Chitte with stick on his palms and assaulted him with a leather belt at his legs and feet. Munna Shaikh who is police constable had handcuffed Hemant Chitte and was locked to the table of P.I. Choudhary and thereafter, also he was beaten and assaulted by the Police Officer i.e. Mr.Choudhary and Munna Shaikh. At about 10.30 a.m. he was taken to Nardana police station and was kept in lockup and early in the morning at about 3.00 a.m. he was brought in the Primary Health Center at Nardana.
7. It is case of the petitioners that, the petitioner no.6 Satish Choudhary was brought in Sindkheda police ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 12 station at about 2 p.m. by police constable Shantaram Patil. In Sindkheda police station Shantaram Patil assaulted him with kicks and fists. The P.I. Mr. Chaudhary assaulted him with kicks and leather belt on his legs and hands. The P.S.I. Sanjay Shukala of Dhondaicha police station and some person of Nardana police station assaulted the petitioner no.6 Satish Chaudhary on his back with fists. Mr. Rathod S.D.P.O. Shirpur was also present in Nardana police station and has severely beaten the petitioner no.6 Satish Chaudhary with leather belt. The body guard of Rathod Mr. Altaf Beg abused Satish Choudhary and assaulted with kicks and fists. Shantaram Patil handcuffed Satish Chaoudhary and also was locked with the table of P.I. Chaudhary. At about 10.30 p.m. All them taken to Nardana and were kept in police lockup. At about 3.00 a.m. the petitioners were taken to Primary Health Center Nardana.
8. It is case of the petitioners that, the petitioner no.7 Mahendra Tamkhane was taken to Sindkheda police station by police constable Shantaram Patil. In the cabin ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 13 of P.I. Choudhary, the petitioner no.7 was assaulted by Choudhary with sticks on his hands. At the same time Mr. Janorkar P.I. of D.B.S. at Dhule who was present in Sindkheda police station, had asked the petitioner no.7 to remove the cloths and thereafter he was assaulted allover the body with the leather belt. The S.D.P.O. Shirpur Mr. Rathod was also present in Sindkheda Police Station, had also assaulted the petitioner no.7 Mahendra Tamkhane with kicks and leather belt after the petitioner no.7 was handcuffed. Mr.Altaf Beg and Mr. Sanjay Shukala were present in Sindkheda police station and also assaulted the petitioner no.7 Mahendra with kicks and fists.
9. It is case of the petitioners that, the petitioner no.8 Prakash Bhill was brought in police station at Sindkheda by police constable Shantaram Patil. In the police station Mr. U.S.Choudhary asked the petitioner no.8 to remove all the cloths and thereafter assaulted him with sticks on his hands and legs. Mr. Rathod S.D.OP. Shirpur assaulted petitioner no.8 allover the body with the ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 14 leather belt. Police constable Shantararn Patil handcuffed the petitioner and thereafter he was taken to police lockup of Nardana police station at about 10.30 a.m. He was taken to Primary Health Center Nardana at about 3.00 a.m. on 15.3.2002 with the other petitioners.
10. It is case of the petitioners that, the petitioner no.9 Bapu Motiram Phule was brought to Sindkheda police station by police constable Shantaram Patil and Khairnar at about 8.00 p.m. on 14.3.2002. He was assaulted by police inspector Chaudhary on his palm, legs and waist.
And was also assaulted by P.S.I. Sanjay Shukla with leather belt and thereafter he was taken to police lockup at Nardhana police station at 10.30. The petitioner No. 10 Aba @ Jaysing Bhil was also taken to Sindkheda police station from his residence by police constable Shantaram Patil. In the police station he was assaulted by P.I. Chaudhary on his legs and hands with sticks.
Police Constable Patil assaulted him at his ears. One P.S.I. from outstation had assaulted him with leather belt. Thereafter at about 10.30 p.m. he was taken to ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 15 police lockup of Nardana police station.
11. It is case of the petitioners that, petitioner nos. 1 to 4 were severely beaten in Songir Police Station, whereas, the rest of the petitioners were severely beaten in Sindkheda police station. The petitioner nos. 1 to 4 were taken out from lockup of Songir police station in the morning and were taken to Primary Health Center at Nardana at about 3 a.m. on 15.3.2002. The rest of the petitioners were taken to Nerdana police lockup at about 10.30 p.m. on 14.3.2002 and thereafter from Nardana lockup they were taken to Primary Health Center at Nardana at about 3 a.m. on 15.3.2002. All the petitioners had complained about assault on them in the police station and also requested Medical Officer Nardana to give the treatment of their injuries. However Medical Officer Nardana did not pay any heed to the requests of the petitioners.
12. It is case of the petitioners that, the petitioners nos.1 to 4 were assaulted in Songir police station and ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 16 were compelled/forced to confess their guilt before the Video camera with audio recording. The petitioners were severely beaten and were compelled to confess the guilt.
Similar is the situation with the rest of the petitioners.
The petitioner no. 5 to 10 were assaulted and were forced/compelled to confess the guilt and it was recorded in the audio/video camera in Sindkheda police station.
13. It is case of the petitioners that, the petitioners no.
1 to 10 have been arrested by the police on 14.3.2002.
They were kept in police lockup for whole night intervening 14.3.2002 and 15.3.2002 and on 15.3.2002 they were produced before the Medical Officer at Nardana. However, none of the petitioners were produced before the Magistrate during the period of 24 hours as required u/sec.57 and 167 of the Criminal Procedure Code. On the other hand it has been falsely and incorrectly stated in the remand reports dated 16.3.2002 and 17.3.2002 that all the 10 petitioners have been arrested on 15.3.2002 at 3.30 p.m. All the petitioners were produced before the learned Magistrate at ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 17 Sindkheda on 16.3.2002 and P.C.R. for 7 days was prayed for.
14. It is case of the petitioners that, on 16.03.2002 all the petitioners were produced before the learned J.M.F.C. at Sindkheda at about 4 p.m. All the accused had stated that, they have no complaint of ill-treatment at the hands of the police, due to severe assault on them and due to threatening of the police officers more particularly Mr. Choudhary, that the accused could not disclose before the J.M.F.C. Sindkheda the fact that, they have been assaulted by the police. Mr. Choudhary had threatened all the accused that, in case they complain before the J.MF..C. about the ill-treatment he will further charge them with more severe offences and accused will not be set free on bail. Thus for the above said reasons, the accused/petitioners did not disclose before the J.M.F.C. Sindhkheda about assault. The learned Magistrate had granted P.C.R. of all the accused for one day i.e. till 17.03.2002.
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15. It is case of the petitioners that, immediately after their release on bail they had submitted an application before the learned J.M.F.C. Sindkheda stating that, the police had threatned them not to complain about the assault, ill treatment and as such they did not disclose it on 16.03.2002. However, after releasing of the accused on bail the apprehension was no more and as such they wanted to get themselves medically examined. The petitioners had complained that during the span of 3 days they were made to suffer pains and were severely beaten by the police. Some of the petitioners were given the electric shocks at their private parts. On the said application of the petitioners the learned J.M.F.C. Sindkheda has passed the order directing the I.O. to produce all the petitioners for medical examination at Rural Hospital Sindkheda.
16. It is case of the petitioners that, in pursuance of the order passed by the learned J.M.F.C. Sindkheda dated 17.03.2002 all the 10 petitioners were produced before the medical Officer, Rural Hospital, Sindkheda. The ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 19 Medical Officer Sindkheda has issued the injury certificate in respect of all the 10 petitioners.
17. It is case of the petitioners that, though it has not been mentioned in injury certificate of Vinod Wagh the petitioner no.4, but he was admitted in the Rural Hospital for his treatment.
18. It is case of the petitioners that, the petitioner no. 1 Mahesh Badgujar and petitioner no.3 Prakash Marathe were complaining that they could not hear due to severe assault on their ears. They approached the Primary Health Center at Sindkheda but the Medical Officer Sindkheda was not in a position to treat the same, and as such advised the petitioners no.1 and 3 to go to Civil Hospital and accordingly issued letter addressed to the Civil Hospital Dhule but they were asked to get themselves referred through the police officer because this is a medico legal matter. P.S.I. Borse was present in the accident Ward of Civil Hospital Dhule. He referred the petitioners no. 1 and 3 to Civil Hospital for treatment ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 20 and on his reference both the petitioners i. e. the petitioner nos. 1 and 3 were examined by the Medical Officer, General Hospital, Dhu1e.
19. It is case of the petitioners that, the petitioners had applied to the Civil Surgeon for getting the certificate about injury, but still the same has not been received. At the time of examination of the petitioner no.3 Prakash the Medical Officer at Dhule Hospital has told him that internal injury received by him is grievous injury and as such it is now curable. But it may require some operations also.
20. It is contention of the learned Counsel for the petitioners that the petitioners were arrested / detained on 14th March, 2002 during the day time. Petitioners No.1 to 4 were taken to Songir Police Station in the mid-
night intervening between 14 and 15 th March, 2002, they were severely beaten by the Police Officers. Rest of the petitioners were arrested on 14th March, 2002 and during the night time the police severely beat them in the ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 21 Sindhkheda police station and all the petitioners were taken to Nardana Primary Health Centre at about 3 a.m. Till then, the petitioners No.5 to 10 were kept in police lock-up at Nardana Police Station. It is case of the petitioners that considering the allegations against the petitioners, even their arrest was not necessary. The police officers neither drew panchanama about the arrest of the petitioners nor the petitioners were shown arrested on 14th March, 2002. However, they were kept in lock-
up. They were not informed about the grounds of arrest.
Though the petitioners were detained / arrested on 14th march, 2002, they were produced before the Magistrate at Sindhkheda for the first time on 16th March, 2002 showing that they were arrested on 15th March, 2002.
It is case of the petitioners that as per the provisions of section 57 and 167 of the Code of Criminal Procedure, the accused should have been produced before the Magistrate within 24 hours from the time of their arrest. Though all the petitioners had been arrested on 14th March, 2002 in the day time, they were ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 22 not produced before Magistrate till 16 th March, 2002.
Thus, there is violation of the provisions of section 57 and 167 of the Cr.P.C., and also detention of the petitioners beyond period of 24 hours by the police amounts to illegal detention and as such, it is violation of fundamental rights of the accused. The police had used third degree methods against the petitioners and caused injuries to them. They were threatened that, in case they state about atrocities on them by the police officers, then serious charges would be levelled against them and they would not be in a position to get released on bail. The entire actions / acts by the police personnel were in violation of fundamental rights of the petitioners under Article 21 of the Constitution of India. It is case of the petitioners that respondents No.3 to 8 acted contrary to the safeguards provided to the petitioners. It is case of the petitioners that the respondents did not follow the guidelines laid down by the Supreme Court in the case of D.K. Basu v. State of W.B.1 1 (1997) 1 SCC 416.
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21. It is case of the petitioners that, in the F.I.R. their names are not appearing, nor they are concerned in any way with the commission of the offence. During the interrogation and investigation also nothing had come out against the petitioners . In these circumstances, the respondents police authorities have beaten the petitioners badly and in a cruel manner and required and compelled them to confess the guilt and it has been recorded in audio and video cameras. This shows the high handed actions of the police officers requiring the petitioners to confess the guilt in the police station.
22. It is further submitted that the Magistrate while rejecting the application for grant of PCR, has observed that it is a fact that since 14th March, 2002 all the accused were in police custody. It is case of the petitioners that in the remand papers dated 16 th March, 2002, it has been stated by the police that, the accused have been arrested on 15th March, 2002 at about 3.30 p.m. This contention of the police can be falsified if the record in Primary Health Centre, Nardana is seen. All ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 24 petitioners have been examined in Primary Health Centre, Nardana on 15th March, 2002 at about 3 - 4 a.m. In the night intervening 14th and 15th March, 2002.
Thus, the said medical evidence was not prior to the arrest of the accused. It is further submitted that immediately after petitioners were released on bail, they requested before the Magistrate that they should be sent for medical examination. It is further submitted that some of the petitioners were given electric shocks on their private parts and, thereafter, accused had been referred for medical examination. Accused Aba @ Jaysing Bhil, Mahendra Tamkhane, Prakash Bhil were handcuffed by the police and were locked to the table of P. I. Choudhary. The petitioner Hemant Chitte was also handcuffed and was locked to the table of P.I. Accused Mahendra Tamkhane was given electric shocks at his private parts. Thus, cruel and torturous treatment was given to the petitioners.
The Supreme Court in the case of Saheli, A Women's Resources Centre, v. Commissioner of ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 25 Police, Delhi Police Headquarters and others2, held that an action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. It is further held that in case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. The Supreme Court further observed that the State is responsible for the tortious acts of its employees. The learned Counsel for the petitioners further placed reliance in the case of Joginder Kumar v. State of U.P. And others3 and submitted that the Supreme Court held that, there should be proper balancing of individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other. It is further observed that, an arrested person has right to have his friend, relatives or some other person who is known to him or who is likely to take an interest in his welfare told about his arrest. The police officer shall inform the arrested person when he is brought to 2 (1990) 1 SCC 422.
3 (1994) 4 SCC 260.
::: Downloaded on - 19/07/2014 23:50:07 :::207.02crwp 26 the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest. The Magistrate must be satisfied about the compliance of these requirements in all cases of arrest.
In the facts of the present case, all these requirements have not been followed by the respondents No.3 to 8.
Therefore, the appropriate action needs to be taken against respondents Nos.3 to 8 and petitioners are entitled for the compensation.
23. Mr.Amitesh Kumar s/o Y.K. Prasad, at the relevant time working as the Superintendent of Police, Dhule filed affidavit-in-reply and denied allegations made in the writ petition. It is stated in para 3 that one on 14/03/2002, one Shri Shaikh Musheer Osman filed complaint in Shindkheda Police Station that, one of the tops (Ghumat) of Idgahah was broken by some body hence CR No. 22/2002 was registered for the offence punishable under Section 295, 153 (a), 427 of I.P.C.. It is case of the petitioners that, on 14/03/2002 the encroachment in front of Tahsil office and police station was to be removed ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 27 hence additional police bandobast was made available to the Police Inspector, Police Station, Sindhkheda. The encroachment was likely to be removed after 10 O'clock however, at about 10 O'clock the aforesaid complaint came to be registered and because of that there was law and order problem due to communal tense. The District Magistrate, Dhule had issued notification under Section 37 (l) (3) of the Bombay Police Act and U/s.l44 of Criminal Procedure Code on 11/03/2002. Hence in order to maintain law and order the decision to remove encroachment was dropped and the additional police bandobast was assigned to maintain law and order problem in Sindhkheda town. Considering Godhara incidence in Gujrat and its consequences as well as the 'Shilanyas' of Shri Ram temple in Ayodhya which was to take place on 15/03/2002, it was necessary to prevent any mishap hence the concerned police officer Shri U.S. Choudhari and Sub Divisional Police Officer, Shri Rathod deemed it fit to take action under Section 68 and 69 of the Bombay Police Act, 1951, hence 14 persons including the present petitioners were detained by Sindhkheda ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 28 Police on 14/03/2002 at 3.00 p.m. Hence question of drawing arrest panchnama did not arise as it was simply detention. The detenues were sent to Nardana Police Station and were detained in Nardana Police Station. As the situation in Sindhkheda town was under control during the night hours, the police Inspector Shri Choudhari took all the detenues for medical examination at Primary Health Center, Nardana. All the detenues were medically examined by the Medical Officer and certificates to that effect were issued. On the next date on 15/03/2002 when the situation came under control and the concerned Police Inspector and Sub Divisional Police Officer, deemed it fit that the detention of detenues including the present petitioners was not necessary hence they were set at liberty at about 2.10 p.m. under section 69 of Bombay Police Act.
24. It is submitted in para 4 of the affidavit that, after the offence in respect of Idagaha was registered, investigation in that directions was simultaneously going on from 14/03/2002 and the Police Inspector Shri ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 29 Choudhari being investigating officer in that crime had reasonable grounds to believe that the petitioners have committed the offence of destruction of the top of the Idgaha. After the petitioners were set at liberty they were called at Sindhkheda Police Station as they were required to be arrested in the aforesaid crime. It is case of the petitioners that, as the petitioners came in police station Sindhkheda they were arrested and arrest panchnama to that effect was also drawn and the copies of the arrest panchnama were given to the accused i.e. present petitioners which were accepted by them but they did not sign for the reasons that they were insisting to show their arrest in the said crime on 14/03/2002 on 3.00 p.m and such time in the arrest panchnama could not been shown as they were simply detained. After their arrest there was a huge crowd in front of the police station and again the situation was becoming sensitive hence they were sent to Nardana Police Station and from Police Station Nardana they were also sent to Primary Health Centre Nardana for medical examination on 15/03/2002 and accordingly certificates to that effect ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 30 are issued by the Medical Officer. Not only that but the grounds of arrest were also communicated to the said accused and their relatives also.
25. In para 5 of the affidavit, It is case of the petitioners that, as further investigation in the aforesaid crime was necessary on the next day i.e. on 16/03/2002 the accused i.e. present petitioners were taken to the Court of the J.M.F.C. Sindhkheda at 2.30 p.m and immediately the remand report seeking police custody of the accused was submitted before the concerned clerk.
As the usual practice of taking remand matters is after 3.30 p.m. hence the matter was called out at 4.00 p.m. before the J.M.F.C. hence the J.M.F.C. while passing the order mentioned the time as 4.00 p.m. That, certainly does not mean that the accused were not produced within 24 hours as required by law. The J.M.F.C. had made inquiry in open Court with the accused individually, in presence of their respective advocates however, neither the accused nor their advocates made complaint of ill-treatment at the hands of police.
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26. It is submitted in para 6 of the affidavit-in-reply that, the petitioners were not at all ill-treated hence the allegations in respect of ill-treatment are denied in toto.
The J.M.F.C. was pleased to grant P.C.R. of the petitioner till 17/03/2002. On 17/03/2002 petitioners were also produced before the J.M.F.C. and further P.C.R. was sought for which ultimately came to be rejected and the accused were taken in MCR and were released on bail on 17/03/2002. At that time also the J.M.F.C. made inquiry with the accused in presence of their respective advocates however, at this time also neither the accused nor their advocates made complaint of ill-treatment at the hands of police. It is case of the petitioners that, as the accused were arrested on 16/03/2002 the sitting M.L.A of the Sindhkheda constituency who belongs to Shiv Sena Party started fasting till death and was pressurizing the police officer for release of the present petitioner as they are activists of Bajrang Dal. The said M.L.A. and petitioners made it prestige issue and decided to teach a lesson to the police ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 32 officers and consequently after thought the application at Exhibit-D at page No. 63 of this writ petition was moved by the petitioners late in the evening before J.M.F.C. on 17/03/2002 after 3-4 hours after they were released on bail and the J.M.F.C. was pleased to call the the I.O. at about 8 p.m., and direct the Investigating Officer to take the petitioners to Rural Hospital, Sindhkheda for medical examination. Accordingly the Investigation Officer Shri Choudhari took the petitioners to the Rural Hospital, Sindhkheda, the concerned Medical Officer examined all the petitioners. It is case of the petitioners that, while the petitioners were being examined, the M.L.A. Shri Ramkrushna Dodha Patil was very much present in the hospital for using his influence. He also met the concerned medical officer in his chamber and except both of them there was nobody in the chamber of the Medical Officer for ½ hour. After the examination of the petitioners the Medical Officer was requested to issue medical certificates however, he did not issued any certificate to the Investigation Officer. On the contrary the certificates were sent to the J.M.F.C. Sindhkheda ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 33 on 22/03/2002 i.e 5 days after the medical examination of the petitioners.
27. In para 7 of the affidavit, it is stated that, the allegations of ill-treatment against the respondents No.3 to 8 are without any basis. The other allegations are also denied in para 8. In para 9, it is admitted that petitioner No.4 Vinod Wagh was admitted in hospital not for the alleged assault but, for his ailment. In para 10, there is reference of medical examination of the petitioner Prakash Marathe and Mahesh Badgujar. In para 11, allegations are made against M.L.A. Shri Ramkrishna Dodha Patil and Medical Officer, who has issue injury certificate to the petitioners. In further para 11, it is stated that all the police persons discharged their duties in official capacity and there was no illegal act which can be attributed to the police officers. Therefore, it is prayed that the petition may be rejected.
28. We have considered the submissions of the learned Counsel for the parties at length. With their able ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 34 assistance, perused the pleadings in the petition, annexures thereto, affidavit-in-reply filed by the then Superintendent of Police, Dhule and the annexures to the affidavit-in-reply, copies of the injury certificates which are placed on record and also the relevant provisions of the Bombay Police Act, Indian Penal Code and the judgments of the Supreme Court cited across the Bar by the learned Counsel for the petitioners.
29. This writ petition was heard by this Court and on 29th July, 2002 this Court issued Rule. It appears that the respondent Nos.3 to 8 have not filed reply in the present petition. It further appears that, the matter was adjourned from time to time at the request of learned Counsel appearing for the respondents No.3 to 8. The respondents No.3 to 8 have not filed affidavit-in-reply.
One Amitesh Kumar s/o Y.K. Prasad, who was working as Superintendent of Police, Dhule did file affidavit-in- reply. Upon careful perusal of the pleadings in the petition from paragraphs 4 to 13, there are specific allegations against the respondents. Even, the petitioners ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 35 have attributed specific acts to the respondents - police officers in assaulting them and giving ill-treatment when they were detained / arrested. Therefore, allegations in the petition so far respondents No.3 to 8 are concerned, are not specifically denied or controverted. It is true that the Superintendent of Police has filed affidavit-in-reply.
However, while dealing with the specific allegations in the petition about the ill-treatment and that, the petitioners were severely beaten / assaulted by the police officers, when they were in custody, except denial of said allegations and a statement in the affidavit-in-reply filed by respondent No.2 that, when the petitioners were produced before the JMFC, Sindhkheda, they did not protest about the ill-treatment at the hands of police and, therefore, allegations in the petition are baseless, there is no specific denial by the respondents. Upon careful perusal of the affidavit-in-reply, filed by the respondent No.2, in particular, para 4 thereof, it is an admitted position that, the petitioners were detained on 14th March, 2002. It is stated in para 4 of the affidavit-
in-reply that, the petitioners were insisting to show them ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 36 arrest panchanama. However, according to the averments in the affidavit-in-reply, they were not arrested but, simply detained on 14 th March, 2002.
Upon careful perusal of the contents of the extract of Police Station Diary dated 14th March, 2002 maintained by Sindhkheda Police Station, which is placed on record with affidavit-in-reply, it appears that complaint was registered with the concerned police station being Crime No.22/2002 under Sections 295, 153-A and 427 of IPC.
Upon reading all the documents / material placed on record, it appears that the present petitioners were not specifically named in the said complaint. As already observed, on 14th March, 2002, the present petitioners were detained by the police and they were kept in police station, since according to the respondent No.2, the petitioners were simply detained on 14th March, 2002 and, therefore, no arrest panchanama was drawn.
Perusal of the affidavit-in-reply and annexures thereto shows that, there is no mention about what weighed with the respondents to arrest the present petitioners. In other words, the respondents have not shown any, prima ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 37 facie, material / investigation qua these petitioners / accused before they were detained. There is extract from the police diary from Sindhkheda Police Station dated 14th March, 2002, which is annexed as Exh.R-1 to the affidavit-in-reply of respondent No.2. Upon reading contents of copy of said extract, it appears that there was damage to dome of Idgah on 14 th March, 2002 and therefore, complaint was lodged by Idgah Committee with Sindhkheda Police Station, which was registered as Crime No.22/2002 u/s 295, 153-A and 427 of IPC. It is further mentioned that due to damage to the dome of Idgah, there was communal tension between Hindu and Muslim communities. There is further mention of names of the petitioners along with other three persons suspecting them that they may indulge themselves in instigation and spreading rumours. Therefore, in order to maintain law and order in Sindhkheda, the petitioners were detained under Section 68 of the Bombay Police Act. The respondent No.2 along with his affidavit-in- reply, has placed on record at Exh.R-2 the extract dated 14th March, 2002 from police diary maintained by the ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 38 said police station. It is mentioned in the said extract that, the petitioners and others were detained by invoking section 68 of the Bombay Police Act and were released on 15th March, 2002 at 14.10 hours. There is also mention of section 69 of the Bombay Police Act. It further appears that again the petitioners were shown arrested on 15th March, 2002 at 15.30 Hrs in Crime No.22/2002 and before arrest, they were told that they were arrested and about their arrest, their relatives were communicated. At this juncture, it would be apt to reproduce the provisions of sections 68 and 69 of the Bombay Police Act, 1951:
"68. All persons shall be bound to conform to the reasonable directions of a Police Officer given in fulfilment (sic) of any of his duties under this Act.
69. A Police Officer may restrain or remove any person resisting or refusing or omitting to conform to any direction referred to in section 68 and may either take such person before a Magistrate or, in trival (sic) cases, may release him when occasion is past."::: Downloaded on - 19/07/2014 23:50:07 :::
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30. Upon conjoint reading of sections 68 and 69 of the Bombay Police Act, 1951, it can be gathered that, all persons shall be bound to conform to the reasonable directions of a Police Officer given in fulfillment of any of his duties under the said Act. Under Section 69 of the said Act, a Police Officer may restrain or remove any person resisting or refusing or omitting to conform to any direction referred to in section 68 and may either take such person before a Magistrate or, in trivial cases, may release him when occasion is past. In the facts of the present case, the respondents have not placed on record any material to show that, restrain or removal of the petitioners was warranted. Admittedly, the petitioners were detained on 14th March, 2002. While invoking Section 69 of the said Act, at least prima facie, opinion in respect of each of the accused that, their removal or restrain is necessary, should have been expressed by the authority.
Upon careful reading of section 69 of the said Act, it ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 40 clearly appears that, the power given to the police officer is to restrain or remove any person resisting or refusing or omitting to conform to any direction referred to in section 68 of the said Act. It is also mentioned in the said section that the Police Officer may either take such person before a Magistrate or in trivial cases, may release him when occasion is past. The power of detention is not vested to the authority under Section 69 of the said Act. The facts brought on record would clearly demonstrate that, admittedly, on 14.3.2002 the petitioners were illegally detained and kept in police station. Therefore, their detention, according to the petitioners would not fall within the scope and ambit of section 69 of the said Act.
It appears that, the petitioners were detained on 14th March, 2002 and they were released on 15 th March, 2002 by the respondents at 14.10 Hrs. Admittedly, there was no arrest panchanama prepared on 14 th March, 2002 or the petitioners were not produced before the Magistrate. They were shown arrested on 15 th March, ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 41 2002 at 15.30 Hrs. They were produced before the Magistrate first time on 16.3.2002.
As already observed, the petitioners have specifically pleaded in the petition about the assault / ill-
treatment and beating by each Police Officer i.e. Respondents No.3 to 8, in respect of each of the petitioners. There is no specific denial to said allegations by the respondents No.3 to 8, though they are party -
respondents in the present petition. It is true that, the petitioners did not protest before the Magistrate when they were produced before the Magistrate on 16.3.2002, however, they have offered explanation in para 14 of the petition that, under the threats by the Police not to disclose such ill-treatment / atrocities by them, the petitioners did not disclose before the Magistrate about ill-treatment / assault. However, after their release, they approached before the Magistrate by way of filing an application on 17.3.2002 disclosing atrocities at the hands of the respondents No.3 to 8 and prayed for referring them for medical examination.
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31. At this juncture, it would be relevant to place reliance in the case of D.K. Basu v. State of W.B. (supra) and in particular, paragraphs 35 to 39, which read thus:
"35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 43 friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
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36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
39. The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan any by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes."
32. Since, these guidelines were issued and circulated way back to all the Police Personnels, we presume that ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 45 the respondents were well aware about the said guidelines and, therefore, it was incumbent upon them to follow the said guidelines scrupulously before detention of the petitioners or their arrest.
33. The Supreme Court in case of Joginder Kumar (supra), in paragraphs 8, 9, 10 and 20 held thus:
"8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first -- the criminal or society, the law violator or the law abider; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore (242 NY 13, 24 : 150 NE 585, 589 (1926), Justice Cardozo observed:
"The question is whether protection for the individual ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 46 would not be gained at a disproportionate loss of protection for society. 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 office. There are dangers in any choice. The rule of the Adams case [People v. Adams (176 NY 351:68 NE 636 (1903)] strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass."
10. To the same effect is the statement by Judge Learned Hand, in Fried Re (161 F 2d 453, 465 (2d Cir 1947):
"The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise."
The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.
20. In India, Third Report of the National Police Commission at p. 32 also suggested:
"An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terrors-stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 47 unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ...."
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.
The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."
34. In the light of discussion in forgoing paragraphs 29 ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 48 and 30, it will have to be held that the detention of the petitioners on 14th March, 2002 was illegal. Nothing has been brought on record by the respondents in the nature of arrest panchanama or otherwise that, they did follow the relevant procedure and also mandate of Criminal Procedure Code and the guidelines issued by the Supreme Court in case of D.K. Basu (supra) and also the law laid down by the Supreme Court in case of Joginder Kumar (supra).
35. As already observed in paragraphs 29 and 30 of this judgment that, the respondents could not have detained the petitioners by invoking the provisions of sections 68 and 69 of the Bombay Police Act. The said provisions do not authorize or empower Police Officers to detain a person. Therefore, detention of the petitioners on 14th March, 2002 was illegal.
36. There are specific pleadings in the writ petition that, the petitioners were severely beaten / assaulted by the respondents No.3 to 8. The said pleadings have not ::: Downloaded on - 19/07/2014 23:50:07 ::: 207.02crwp 49 been specifically answered or replied or denied by the respondents No.3 to 8 and, therefore, specific allegations qua each of the respondents No.3 to 8 remained uncontroverted on their behalf. Admittedly, the petitioners were detained on 14th March, 2002. Upon careful perusal of the averments in the affidavit-in-reply filed by respondent No.2 and annexures thereto and other documents placed on record by the respondents, it clearly appears that the relevant procedure or guidelines laid down by the Supreme Court in case of D.K. Basu (supra) have not been followed by the respondents. The petitioners were not produced before the Magistrate on 14th March, 2002 or 15th March, 2002. But, they were shown arrested on 15sth March, 2002 at 15.30 Hrs and to that effect, panchanama of arrest was prepared. The respondents have not placed material on record to show that the said arrest was in accordance with the procedure established by law and same was after following guidelines issued by the Supreme Court in case of D.K. Basu (supra). The respondents have not brought on record any material evidence connecting the ::: Downloaded on - 19/07/2014 23:50:08 ::: 207.02crwp 50 petitioners and showing their involvement in alleged offence registered at Sindhkheda Police Station on 14 th March, 2002 pursuant to the FIR lodged by one Shaikh Mushir Osman Shaikh r/o. Sindkheda.
37. The petitioners have placed on record copies of the injury certificates which corroborate their specific contentions that, they were detained on 14 th March, 2002 and thereafter, they were released and arrested on 15 th March, 2002 and till the time they were in the police custody, they were assaulted by the respondents No.3 to 8 and as a result, they sustained injuries as indicated in the injury certificates placed on record. The contention raised by the respondent No.2 in his affidavit-in-reply that, due to pressure of local MLA, such certificates were issued by the Medical Officer, is not supported by any material particulars and, therefore, such a vague contention deserves to be rejected and accordingly, the same is rejected.
38. Though it is contended by respondent No.2 in his ::: Downloaded on - 19/07/2014 23:50:08 ::: 207.02crwp 51 affidavit-in-reply that, the petitioners did not raise protest about the alleged assault / ill-treatment at the hands of respondents 3 to 8 before the Magistrate, upon perusal of contents of the application filed by the petitioners on 17th march, 2002 before the Magistrate after release, it appears that, the petitioners did contend in the said application that, when they were in police custody, they were threatened by the Police Officers not to disclose the atrocities committed by them. The petitioners have also placed on record copy of the said application with prayer for referring them for medical examination. Upon perusal of the order passed by the Magistrate, it appears that the petitioners were referred for medical examination and accordingly, injury certificates were issued upon their examination by the Medical Officer.
39. In the light of the discussion in the foregoing paragraphs, in our opinion, the petitioners are entitled for compensation for their illegal detention. The Supreme Court in case of Saheli, A Women's ::: Downloaded on - 19/07/2014 23:50:08 ::: 207.02crwp 52 Resources Centre (supra) held, thus:
"An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. The State is responsible for the tortious acts of its employees. On a conspectus of various decisions of the Court, it is deemed just and proper to direct the State (Delhi Administration) to pay compensation to the mother of the deceased child a sum of Rs.75,000/- within four weeks. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised."
40. Therefore, in our considered opinion, ends of justice would meet if respondent No.1 - State is directed to pay Rs.5000/- to each of the petitioners towards compensation.
41 Accordingly, we direct the respondent No.1 - State to pay compensation of Rs.5000/- to each of the petitioners.
We also direct the respondent No.1 to appoint a ::: Downloaded on - 19/07/2014 23:50:08 ::: 207.02crwp 53 competent officer for conducting an inquiry into the allegations levelled against the respondents No.3 to 8, within two months from receipt of writ of this court.
Such an inquiry should be conducted by the Officer so appointed by the State Government, as expeditiously as possible, preferably within four months from the date of his appointment, after following principles of natural justice.
After conducting such inquiry, the competent authority to take appropriate action against the officers depending upon result of the inquiry, in accordance with law, as expeditiously as possible, preferably within two months from receipt of the inquiry report. It will be open for the respondent No.1 to recover the amount of compensation from the erring officers.
Rule is made absolute in the above terms.
[P.R. BORA, J)] [ S.S. SHINDE, J ]
Kadam.
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