Bombay High Court
Baban Khandu Rajput vs The State Of Maharashtra And Ors. on 30 January, 2002
Equivalent citations: (2002)104BOMLR8
Author: S.S. Parkar
Bench: S.S. Parkar, D.S. Zoting
JUDGMENT S.S. Parkar, J.
1. This petition has been filed seeking direction against the respondent Nos. 1 to 3 for holding inquiry against respondent No. 4, who was at the relevant time Incharge of Newasa Police Station and for payment of compensation for the illegal detention of the petitioner between 5.5.1992 to 7.5.1992 and also for taking appropriate action against the respondent No. 4 and respondent No. 5 Executive Magistrate, Newasa, for depriving the petitioner of his personal liberty by abusing the legal process.
2. Certain undisputed facts leading to the filing of the present petition are as follows :
One Uttam Jaywant Chavan was a witness in criminal case filed against the petitioner by Dhawale at C.R. No. 86 1988 for offence under Sections 324, 504 r/w 34 of the Indian Penal Code. The date of the said complaint was 15.5.1988. Criminal case was already pending in the Court of Judicial Magistrate, First Class, Newasa, The complaint was lodged by the witness Uttam Chavan that threats were held out to him and, therefore, the petitioner came to be arrested on 5.5.1990 and kept in police custody and Chapter proceedings were initiated against the petitioner under Section 110 of Criminal Procedure Code. The petitioner though arrested on 5.5.1990, he was produced before the Executive Magistrate only on 7.5.1990, on which date he was released on furnishing bond of Rs. One Thousand.
3. On behalf of the petitioner, it is contended firstly that there was no case made out for initiation of proceedings under Section 110 of Criminal Procedure Code against the petitioner. Secondly, it is contended that the petitioner ought to have been produced before the Magistrate and obtained orders for his detention in custody. Thirdly, it is contended that in any event the petitioner ought to have been produced within 24 hours before the Executive Magistrate i.e. on the following morning of 6th May, 1990. It is alleged that the petitioner was deliberately detained in custody without orders and kept under detention for a period of 2 days without production before the Magistrate at the instance of the complainant Uttam Chavan who was a witness in the earlier proceedings pending against the petitioner. It was pointed out on behalf of the petitioner that similar proceedings were initiated by the said Police Station against the petitioner in the year 1988 under Section 107 of Criminal Procedure Code on the complaint of the very witness Uttam Chavan. The said proceedings bear Chapter Case No. 102 of 1988. The crux of the arguments advanced on behalf of the petitioner is that, it is the respondent No. 4 -P.S.I. Pawar who was at the relevant time Incharge of the Newasa Police Station, who is responsible for the illegal detention of the petitioner.
4. The said respondent has filed his reply affidavit dated 9.7.1990. In para 7 of the said affidavit, he has stated that the petitioner was arrested on 5.5.1990 by the then Police Officer Incharge of Newasa Police Station when the respondent No. 4 had gone out for Bandobast duty and that he had not arrested or detained the petitioner. He had signed the report dated 5.5.1990 placed before him by his subordinate who had arrested the petitioner. In support of his say, the record from the Police Station has been produced. Heavy reliance is placed on behalf of the respondent No. 4 on the station diary entry for the relevant dates.
5. We find from the station diary entry dated 5.5.1990 at Sr. No. 6 that he had left the Police Station for Bandobast duty at 8.00 a.m. on that day. The entries of the same date at Sr. Nos. 25 and 26 show that he had come back to the Newasa Police Station at 8.15 p.m. on that day when the Head Constable gave back the charge of the Police Station to him. The entry at Sr. No. 28 of the station diary shows that the charge of the Police Station was again handed over to Head Constable at 9.35 p.m. on 5.5.1990. At Sr. No. 13, the station diary entry dated 5.5.1990 shows the arrest of the petitioner at 1.30 p.m. for holding the threats and for carrying knives with him. Thus the entries dated 5.5.1990 of the station diary show that when the petitioner was arrested, the respondent No. 4 was not at the Police Station but had gone out for Bandobast duty. The arrest of the petitioner has been shown at Sr. No. 13 in the afternoon of 5.5.1990 while the respondent No. 4 had left the Police Station at 8.00 a.m. in the morning and returned to the Police Station at 8.15 in the night on that day. Secondly, reliance is placed on behalf of the respondent No. 4 on the station diary entries dated 6.6.1990 at Sr. Nos. 11 and 12 showing the name of the petitioner along with the other accused having been sent to the Executive Magistrate. Entry at Sr. No. 16 shows that P.S.I. Pawar the respondent No. 4 came to the Police Station Newasa at 3.15 p.m. and entry at Sr. No. 22 shows that he had left the Police Station by handing over the charge to the police constable at 8.15 p.m. Thus the say of the respondent No. 4 that he was not at the Police Station when the petitioner was arrested is borne out by the station diary entry. For almost about 12 hours on 5.5.1990 the respondent No. 4 has not at the Police Station between 8.00 a.m. to 8.15 p.m. He again leaves the Police Station at 9.30 p.m. in that night and returns to the Police Station next day on 6.5.1990 at 3.15 p.m. and again leaves Police Station at 8.15 p.m. The entry in the Police Station diary also shows that along with other accused in other Chapter proceedings the petitioner was also sent for the production before the Executive Magistrate. What is not explained either by the respondent No. 4 or the other respondents is that how come when the accused in other Chapter proceedings were released on bail on 6.5.1990 but the petitioner was not released on bail on that day. If really the threats were held out by the petitioner to a witness in respect of which we have two complaints before us one in the year 1988 and Anr. in the year 1990, which is the subject matter of this petition, it was open for the police to have applied to the Court in criminal proceedings for cancellation of bail.
6. As per the reply affidavit filed by the Executive Magistrate, who is respondent No. 5 in this petition, the petitioner was produced before him only on 7.5.1990. This is supported by the original documents produced by the learned Additional Public Prosecutor, on which there is no endorsement about the production of petitioner before him on 6.5.1990 nor any order has been passed by the Executive Magistrate in regard to the petitioner on 6.5.1990. The endorsement dated 7.5.1990 shows that the order was passed directing the petitioner to execute bond in the sum of Rs. one thousand with one surety for Rs. one thousand for a period of six months.
7. Number of judgments were relied on behalf of the petitioner in support of the contention that the person facing Chapter proceedings has to be produced before the Executive Magistrate. Reliance is also placed on Section 113 of Criminal Procedure Code which lays down the procedure under which initially the Executive Magistrate has to issue summons requiring the person to appear before him or in case he is in custody issue a warrant directing the officer to produce the person before him. From the report filed by respondent No. 4 P.S.I., it appears that the power was exercised by him under Section 41(2) of Criminal Procedure Code, under which an officer Incharge of Police Station is empowered to arrest any person who belongs to one or more categories of persons specified in Section 109 or Section 110 of Criminal Procedure Code. The clauses invoked by the P.S.I. against the petitioner are Clauses (e) and (g) of Section 110 of Criminal Procedure Code, which provide as follows :
110. When an Executive Magistrate receives information that there is within his local jurisdiction a person who .... ....
(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or .... .... ....
(g) is so desperate and dangerous as to render his being at large without security hazardous to the community.
The above provisions read with Sub-section 2 of Section 41 of Criminal Procedure Code leaves no doubt that the officer Incharge of a Police Station is empowered to arrest a person whose case can be brought under either Clause (e) or Clause (g) of Section 110 of Criminal Procedure Code.
It is rightly contended on behalf of the petitioner that only one case was filed against the petitioner for the offence under Section 323 of the Indian Penal Code and, therefore, he cannot be called as habitual offender, nor can it be said that the petitioner was so desperate and dangerous as to render him being hazardous to the community at large. From the contents of the report filed by respondent No. 4 P.S.I. Pawar, it appears that the complaint filed against the petitioner is to the effect that very often he moves around with knives and creates terror in the village. If that is so, the case of the petitioner may be covered by Clause (g) of Section 110 of Criminal Procedure Code. However, in the absence of material, we are not able to conclude whether the petitioner was really dangerous or desperate person who is hazardous to the community at large, but even assuming so, the detention of the petitioner for a period of two days without his production before the Executive Magistrate appears to us to be illegal.
8. From the affidavit of the Executive Magistrate, it is clear that the petitioner was produced before the Executive Magistrate only on 7.5.1990 that is also in the afternoon. Even if it is true that the respondent No. 4 was not the person who had arrested the petitioner, no justification has been shown as to why he was not produced before the concerned Executive Magistrate immediately after his arrest at 1.30 p.m. on 5.5.1990. It is also not explained as to why the petitioner was not produced before the Magistrate on 6.5.1990 when the station diary entry shows that he was also sent before the Magistrate along with the accused in other chapter proceedings. Even on 7.5.1990 the petitioner was produced before the Executive Magistrate in the afternoon at about 3.00 p.m. and no explanation is given as to why the petitioner was not produced in the morning of 7.5.1990. In the affidavit filed by the respondent No. 4, who had admittedly filed report dated 5.5.1990 for the arrest of the petitioner which was placed before the Executive Magistrate on 7.5.1990, no attempt is made to show how the petitioner's case was covered either under Clause (e) or Clause (g) of Section 110 of Criminal Procedure Code. In the report, there is no mention that he habitually committed offences or was involved in more than one case.
9. In any event, the non-production of the petitioner before the Executive Magistrate either on 5th or 6th of May, 1990 is not at all explained. Though the respondent No. 4 has signed complaint against the petitioner he has not tried to explain the delay of two days in producing the petitioner before the Executive Magistrate except by saying that he was not at the Police Station when petitioner was arrested on 5.5.1990. It was the responsibility of the respondents and in particular of respondent No. 4, who had signed the report against the petitioner, to explain the delay in producing the petitioner before the concerned Executive Magistrate. From the record produced by both the sides, it appears that the petitioner was kept under detention for a period of two days without producing him before the concerned Executive Magistrate who ultimately released him after directing him to execute bond and give surety in the sum of Rs. one thousand.
31.1.2002.
As discussed earlier, even the exercise of power under Section 41(2) of Criminal Procedure Code for taking the petitioner into custody without obtaining orders from the Executive Magistrate under Section 113 of Criminal Procedure Code was not warranted by the facts of the case. No explanation has been given even in the reply affidavit filed by the respondent No. 4. When the petitioner was taken into custody by the police on Saturday the 5th May, 1990, he should have been produced before the Executive Magistrate immediately and obtained orders from him under Section 113 of Criminal Procedure Code. The production of the petitioner before the Executive Magistrate after two days in the afternoon of 7th May, 1990 is indicative of the mala fide exercise of power by the police in arresting the petitioner under Section 41(2) of the Criminal Procedure Code and detaining him for a period of more than two days without seeking orders from the Executive Magistrate by the police under Section 113 of Criminal Procedure Code. The contention raised on behalf of the petitioner that he was detained illegally and with male fide intention, is borne out by the above facts.
10. On behalf of the petitioner, judgments of the Supreme Court and this Court were cited to vindicate the fundamental rights of the petitioner.
11. In the case of D.K. Basu v. State of West Bengal referring to Section 220 of the Indian Penal Code, it was observed by the Apex Court that if an officer or authority having Legal Authority or power to commit a person to confinement keeps a person in confinement corruptly or maliciously in the exercise of that authority knowing that he is acting contrary to law, is liable to be punished with imprisonment. If there is an infringement of the fundamental right of a citizen, the Court can grant compensatory relief under the public law jurisdiction for the wrong done due to breach of public duty by the State of not protecting the fundamental rights to life of the citizen. This is in addition to the action that may be taken against the erring officer under Section 220 of Indian Penal Code.
12. Reference may also be made to the judgment of the Supreme Court in the case of Bhim Singh v. State of J. & K. wherein it was held that if the arrested person is not produced before the Magistrate within requisite period, there is gross violation of his right under Articles 21 and 22(2) of the Constitution of India and if there is arrest with mischievous or malicious intent, victim can be awarded monetary compensation in appropriate cases.
13. Recently the Division Bench of this Court in the case of Shankar M. Tingote v. State of Maharashtra 2001 Cr. L.J. 751 awarded compensation of Rs. Two lacs for illegal seizure and detention of the vehicle without any explanation for non-release of the vehicle inspite of the request made by the petitioner.
14. Similarly, in the case of Chandrabhan Rama Dhengle v. Indirabai Dhengle 1999 All M.R. (Cri) 134 : 1999 M.C.R. 595 the Division Bench of this Court granted compensation of Rs. 50,000/- for illegal detention of a citizen on a complaint of his wife for a period of 63 days.
15. On the other hand, Mr. Gurusahani, learned Counsel appearing for the respondent No. 4, Police Inspector, cited the decision of the Apex Court in the case of State of Maharashtra v. Ravikant Patil in support of his contention that the order for payment of compensation can be made against the State. That was a case where the compensation was sought for handcuffing the accused and parading him through the streets who was a suspect involved in a murder case. The Apex Court held that the compensation awarded by this Court shall be payable by the State who in turn can hold inquiry and then decide whether any action is to be taken against the Inspector of Police who had violated the fundamental right of a citizen by handcuffing and parading him through the streets.
16. There are catena of judgments of the Apex Court which take the view that where there is infringement of fundamental right of a citizen under Article 21 of the Constitution of India, that is the right to life and liberty, he can be compensated by awarding compensation payable to the citizen whose fundamental right under Article 21 of the Constitution of India has been infringed.
17. In spite of various judgments of this Court and the Apex Court, cases of this kind where there is abuse of power to the Police Officers are on the increase. Very few citizens in fact file such writ petitions for the enforcement of the fundamental rights. Unless adequate measures are taken in that regard by the Courts, the tendency of illegal exercise of power or abuse of the power by the police authorities cannot be curbed and, therefore, it is essential that when such instances are brought to the notice of the Court, the adequate relief should be given. The age old maxim, Ubi Jus Ibi Remedium, i. e. there is no wrong without a remedy, has to be invoked in matters of this kind.
18. We are told across the Bar by the Counsel appearing for the petitioner that criminal proceedings under C.R. No. 86 of 1988 have already been concluded and have resulted in the acquittal of the petitioner. Of course, that factor has no relevance to the present proceedings.
19. As we have come to the conclusion that the petitioner was kept in detention for a period of two and half days without producing him before the appropriate authority with mala fide intention without giving any explanation justifying the said detention, the petitioner is entitled for payment of compensation. In spite of the strong plea made on behalf of the petitioner, we are inclined to grant a symbolic compensation in view of the lapse of time which has taken place.
20. In the facts and circumstances, we allow the writ petition and award compensation of Rs. Ten thousand to the petitioner, which shall be paid by the State of Maharahstra, State to deposit the compensation within a period of four weeks from today and when the same is deposited, the Additional Registrar of this Court shall pay the same to the petitioner, It would be open to the respondent State to hold inquiry and find out as to who was the officer responsible for the illegal detention of the petitioner and decide whether any further action has to be taken against the erring police officer in accordance with law including the criminal action which is prescribed under law. Rule is made absolute accordingly.