Bombay High Court
Amol Bharat Khule vs The State Of Maharashtra And Others on 20 November, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:31915-DB
Criminal WP 731 of 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 731 OF 2021
Amol S/o Bharat Khule,
Age: 36 years, Occ. : Driver,
R/o. Newasa BK Tal. Newasa,
Dist. Ahmednagar.
... PETITIONER
...VERSUS...
1. The State of Maharashtra,
Through Superintendent of Police,
Osmanabad.
2. The In-charge Investigation Officer,
Police Station Ambi Tal. Paranda,
Dist. Osmanabad.
3. Anilkumar Ramchandra Helkar
Age: 42 years, Occ. : Service as the Tahsildar,
Tahsil Office, Paranda,
Dist. Osmanabad.
... RESPONDENTS
_______________________________________________________________
•
Mr. Vikram S. Undre, Advocate for Petitioner
•
Mr. V. D. Sapkal, Senior Advocate i/b. Mr. Sandip. R. Sapkal,
Advocate for Respondent no. 3
• Mr. V. K. Kotecha, APP for Respondent nos. 1 and 2
_______________________________________________________________
CORAM : NITIN B. SURYAWANSHI AND
VAISHALI PATIL - JADHAV, JJ.
RESERVED ON : OCTOBER 13, 2025
PRONOUNCED ON : NOVEMBER 20, 2025
J U D G M E N T [Per Vaishali Patil - Jadhav, J.] :
. Rule. Rule made returnable forthwith, heard finally with
the consent of both parties.
komal kamble 1/18
Criminal WP 731 of 2021
2. This Criminal Writ Petition is filed under Article 226 of the
Constitution of India and Section 482 of the Criminal Procedure Code,
1973, seeking directions against respondent nos. 2 and 3 to pay
compensation of Rs. 5,00,000/- to the petitioner on the ground that the
petitioner was illegally arrested and detained in custody by respondent
no. 3, thereby, exceeding the powers vested with him and also violating
the fundamental right i.e. 'Right to Life and Personal Liberty'
guaranteed under Article 21 of the Constitution of India.
3. It is the case of the petitioner that, petitioner is owner of
agricultural land adjacent to Bhairavnath Sugar Company Ltd. situated
at Village Sonari, Tq. Paranda, Dist. Osmanabad. The polluted water
discharged from the sugar factory drains into the agricultural land of
the petitioner. Therefore, the petitioner had requested the
administration of the sugar factory to stop the same, as it causes
infertility of the land of the petitioner. The petitioner was making
requests to stop the polluted water from being drained into his
agricultural land, hence, two NCRs came to be registered against him.
NCR Nos. 171/2020 and 87/2021 were registered against the petitioner
under Sections 504, 506 and 507 of Indian Penal Code on 30.06.2020
and 24.05.2021 respectively. On the basis of these NCRs, the police
officer of the Ambi Police Station submitted Chapter Report No. 49 of
komal kamble 2/18
Criminal WP 731 of 2021
2021 under Section 107 of Criminal Procedure Code before respondent
no. 3 on 25.05.2021, requesting to pass an order to execute the bond of
good behaviour for maximum period. The petitioner was produced
before respondent no. 3 and he passed an order of sending the
petitioner to Magisterial Custody from 25.05.2021 to 31.05.2021.
4. As there was holiday on 26.05.2021, the advocate for the
petitioner, along with surety, namely, Ravindra Tanaji Khule, filed bail
application before respondent no. 3 on 27.05.2021, praying grant of
bail. However, respondent no. 3 rejected the said application on the
ground that an order has already been passed by him on 25.05.2021. It
is this action of the respondent, which is assailed in this petition.
5. Learned advocate for the petitioner argued that the
procedure of remanding the accused to Magisterial Custody in
connection with the Chapter Proceedings under Section 107 of Criminal
Procedure Code is not contemplated under Chapter VIII of Criminal
Procedure Code. He submitted that, the Executive Magistrate, if he
considers that immediate measures are necessary for the prevention of
breach of the peace or disturbance of the public tranquility, then he can
direct the person against whom the order under Section 111 of the
Criminal Procedure Code has been passed to execute a bond, with or
komal kamble 3/18
Criminal WP 731 of 2021
without surety for keeping the peace. It is also contended that
respondent no. 3 has acted beyond the jurisdiction by exercising
powers, which are not vested with him. It is further submitted that, the
petitioner's right under Article 21 of the Constitution of India is violated
by illegally detaining him for seven (07) days and hence, he claims
compensation for his illegal detention. In support of his contention the
petitioner has relied on the following case laws :
I. Madhu Limaye Vs. Sub-Divisional Magistrate,
Monghyr and Others1
II. Gopalanachari Vs. State of Kerala2
III. Surendra Ramchandra Taori Vs. State of
Maharashtra and Others3
IV. Pravin Vijaykumar Taware and Others Vs. Special
Executive Magistrate, Baramati and Another4
V. Dinesh Vitthal Patil and Another Vs. State of
Maharashtra and Others5
VI. Rajesh S/o Surybhan Nayak Vs. State of Maharashtra
and Ors.6
VII. Dattatraya S/o Mahadu Tikkal Vs. The State of
Maharashtra and Others7
VIII. Mohd. Salam Mohd. Sakir Ansari Vs. L.S. Danekar
and Another8
1 AIR 1971 SC (1) 2486
2 AIR 1981 SC 674
3 2001 (4) Mh.L.J. 601
4 2009 (3) Mh.LJ (Cri.) 155
5 2012 (1) Mh.LJ 817
6 2006 (8) LJ SOFT 39
7 Criminal Writ Petition No. 964 of 2012
8 1999 Mh. L.J. (3) 864
komal kamble 4/18
Criminal WP 731 of 2021
IX. Jayvant Gabaji Tambe Vs. State of Maharashtra and
Others9
6. Per Contra, learned senior counsel for respondent no. 3 has
argued that, as per Section 3 of the Judges (Protection) Act, 1985, there
is protection to the Judges, and therefore, no action or prosecution can
be initiated against the Judges or quasi-judicial officers for their acts
done in the official capacity. Learned senior counsel submitted that
respondent no. 3, being a quasi-judicial officer, has conducted a detailed
hearing of the matter and, after considering the evidence placed on
record by the police and after hearing the petitioner, passed the
reasoned order dated 25.05.2021. It is submitted that the petitioner was
detained by following due procedure of law and there was no illegal
detention as such. Hence, there is no question of paying any
compensation to the petitioner. Learned senior counsel further
submitted that, respondent no. 3 has acted within four corners of law
and well within jurisdiction. He, being a quasi-judicial officer, cannot be
compelled to pay compensation for the action taken by him while
discharging his official duty. Merely because a wrong order is passed by
the Court or a quasi-judicial authority that by itself cannot be a ground
to claim compensation. Respondent No. 3, thus, claimed protection
under Section 3 of the Judges (Protection) Act, 1985. Respondent No. 3
has also filed affidavit-in-reply stating the abovementioned arguments.
9 2008 (6) AIR BOM R 682
komal kamble 5/18
Criminal WP 731 of 2021
In support of his contention, respondent no. 3 has relied upon the
following case laws :
A) N.V. Shamsunder V. Savitabai S. Singhvi and Ors.10
B) S.P. Goel V. Collector of Stamps, Delhi11
C) E.S. Sanjeeva Rao V. Central Bureau of Investigation
(CBI) Mumbai and Others12
D) Anowar Hussain V. Ajoy Kumar Mukherjee and
Others13
7. We have heard learned advocate for the petitioner, learned
senior counsel for respondent no. 3, and learned APP for respondent
nos. 1 and 2 at length. We have given anxious consideration to the facts
and circumstances placed before us and have also perused the record.
8. The facts relating to the arrest and detention of the
petitioner by the impugned order dated 25.05.2021, passed under
Section 107 of Criminal Procedure Code are not in dispute. It is also not
disputed that the bail application of the petitioner was rejected only on
the ground that the order is already passed on 25.05.2021.
9. For considering the grievance of the petitioner, it is
necessary to consider the relevant Sections of Chapter VIII of Criminal
Procedure Code. The relevant provisions are reproduced as follows:
10 2007 (1) AIR Bom. R 116
11 AIR 1996 SC 839
12 2012 CRI. L.J. 4053
13 AIR 1965 SC 1651
komal kamble 6/18
Criminal WP 731 of 2021
Section 107 (1): When an Executive Magistrate receives
information that any person is likely to commit a breach of
the peace or disturb the public tranquillity or to do any
wrongful act that may probably occasion a breach of the
peace or disturb the public tranquillity and is of opinion
that there is sufficient ground for proceeding, he may, in
the manner hereinafter provided, require such person to
show cause why he should not be ordered to execute a
bond [with or without sureties], for keeping the peace for
such period, not exceeding one year, as the Magistrate
thinks fit.
Section 111: Order to be made. - When a Magistrate acting
under section 107, section 108, section 109 or section 110,
deems it necessary to require any person to show cause
under such section, he shall make an order in writing,
setting forth the substance of the information received, the
amount of the bond to be executed, the term for which it is
to be in force, and the number, character and class of
sureties (if any) required.
Section 116 (3): After the commencement, and before the
completion, of the inquiry under sub-section (1), the
Magistrate, if he considers that immediate measures are
necessary for the prevention of a breach of the peace or
disturbance of the public tranquility or the commission of
any offence or for the public safety, may, for reason to be
recorded in writing, direct the person in respect of whom
the order under section 111 has been made to execute a
bond, with or without sureties, for keeping the peace or
komal kamble 7/18
Criminal WP 731 of 2021
maintaining good behaviour until the conclusion of the
inquiry, and may detain him in custody until such bond is
executed or, in default of execution, until the inquiry is
concluded:
Provided that-
(a) No person against whom proceedings are not being
taken over under section 108, section 109, or section 110
shall be directed to execute a bond for maintaining good
behaviour;
(b) The conditions of such bond, whether as to the
amount thereof or as to the provision of sureties or the
number thereof or the pecuniary extent of their liability,
shall not be more onerous than those specified in the order
under Section 111.
Section 117: Order to give security - If, upon such inquiry,
it is proved that it is necessary for keeping the peace or
maintaining good behaviour, as the case may be, that the
person in respect of whom the inquiry is made should
execute a bond, with or without sureties, the Magistrate
shall make an order accordingly :
Provided that -
(a) no person shall be ordered to give security of a
nature different from, or of an amount larger than, or for a
period longer than, that specified in the order made under
section 111;
(b) the amount of every bond shall be fixed with due
regard to the circumstances of the case and shall not be
excessive;
komal kamble 8/18
Criminal WP 731 of 2021
(c) when the person in respect of whom the inquiry is
made is a minor, the bond shall be executed only by his
sureties.
10. From the sections quoted above, the procedure while
deciding the chapter cases can be summarized as follows :
a. There should be information against the person that
he is likely to commit breach of peace or he is likely to
disturb the public tranquility or is likely to do any wrongful
act, which may occasion breach of peace or disturbance of
public tranquility;
b. There should be material sufficient enough before
Executive Magistrate for forming opinion that there is
aforesaid probability;
c. There should be subjective satisfaction of the
Executive Magistrate that such a ground exists and that an
opinion needs to be formed on the basis of material;
d. Section 107 makes it incumbent on the part of the
Executive Magistrate to issue show cause notice, as to why a
person should not be ordered to execute a bond with or
without sureties for keeping the peace for such a period not
exceeding one year.
e. Sections 106 and 107 empower the Magistrate only to
obtain bond with or without surety/security for keeping
komal kamble 9/18
Criminal WP 731 of 2021
peace, from the concerned person to prevent him from
committing offence.
f. When Magistrate takes action under section 111 for
offences under Section 107 of the Criminal Procedure Code,
he has no power to send person to Magisterial Custody. He
has power to issue show-cause notice only and, if necessary,
initiate an enquiry.
g. When a Magistrate while acting under Sections 107,
108, 109 or 110 of Criminal Procedure Code deems it
necessary to require any person to show cause under such
sections then he shall make an order in writing, based upon
the substance of the information received. The order should
mention the amount of the bond to be executed, the term
for which it is to be enforced or class of sureties, if any
required.
h. In a proceeding initiated under Section 107 of the
Criminal Procedure Code, no surety/security or personal
bond is required to be furnished under an interim order
under Section 116 (3) (a) and hence, a person cannot be
detained for non-execution of interim bond.
i. If any one commits breach of any order under Section
107 of the Criminal Procedure Code, he will have to be
prosecuted before a Judicial Magistrate to receive
punishment passed by Executive Magistrate, directing he
execution of bond.
komal kamble 10/18
Criminal WP 731 of 2021
11. On a plain reading of the above Sections it is clear that
Executive Magistrate has no authority/power to remand a person to
Judicial or Magisterial Custody in a proceeding under Section 107 of
Criminal Procedure Code.
The objective of chapter cases is not punitive in nature;
rather, the aim of chapter cases is to prevent a person from indulging in
any activity which disturbs the peace and tranquility based upon
antecedent and past history.
12. While remanding the petitioner in judicial custody,
respondent no. 3 has passed following order;
"izdj.kkr vk;-vks- ,l- ch- ok?kqys gtj o tkc ns.kkj
veksy Hkkjr [kqGs gtj- lnj izdj.kkr dkxni=s]
tckc] ,ulh ;kaps voyksdu dsys vlrk- Hkfo";kr lkek-
ftd rs< iljowu lkoZtfud 'kkarrspk Hkax gks.;kph 'kD;rk
ukdkjrk ;sr ukgh- lcc lnj vijk/kh veksy Hkkjr
[kqGs ;kl 31-5-21 i;Zar U;k;ky;hu dksBMh ns.;kps
vknsf'kr dj.;kr ;srs-"
13. From the above order, it is apparent that the Executive
Magistrate has acted beyond the vested jurisdiction, which has resulted
in violation of Article 21 of the Constitution of India whereby the per-
sonal liberty of petitioner was taken away by detaining him in magiste-
rial custody for seven days without following the due procedure of law
and by acting beyond the jurisdiction conferred by law.
komal kamble 11/18
Criminal WP 731 of 2021
14. While passing the impugned order, the respondent no. 3
has not issued any show cause notice to the petitioner neither was he
asked to execute the bond with or without sureties for keeping the
peace. Though in the order respondent no. 3 says that he had
apprehension that the petitioner may cause breach of peace or
disturbance of public tranquility there is no discussion as to on what
basis, he has reached the said conclusion.
Respondent No. 3 has further committed illegality by
rejecting the application filed by the petitioner on 27.05.2025 for bail,
on the ground that he has already passed an order of remanding the
petitioner in MCR on 25.05.2021.
15. The order passed by respondent no. 3 is wholly without
jurisdiction and he has acted in totally illegal manner in remanding the
petitioner to the Magisterial Custody. This Court has issued directions to
the State in the proceeding under Sections 107 and 108 of Criminal
Procedure Code in Rajesh Suryabhan Nayak Vs. The State of
Maharashtra14, as under:
"11. This, we are required to highlight as a fact that
in a proceedings initiated under Section 107 of the
Code, it is common practice on the part of the
Executive Magistrate to insist for surety bond by
passing interim order under Section 116 (3) Cr. P.C.
The court has taken judicial notice of this that inspite
of a clear cut provisions in Clause (a) of the proviso to
14 2006 (5) Mh.L.J. 243
komal kamble 12/18
Criminal WP 731 of 2021
Sub-section 3 of Section 116 of the Code of Criminal
Procedure, in a proceeding initiated under Section 107
of the Code and the form no. 12 (Scheduled II) which is
prescribed for executing bond under section 107 of the
Code, persons are detained in judicial custody for
their failure to furnish interim surety in a
proceedings initiated under Section 107 of
Chapter VIII of the Code in exercise of
jurisdiction not vested upon them in law. {See
State of Maharashtra and Anr. V. Mangali Dewaiyya
Puppalla, Mh.L., 483, Mrs. Pramila Navin Shaha V.
State of Maharashtra and Ors. Fact that in a
proceedings initiated under Section 107 of the Code no
surety/security or personal bond is required to be
furnished under an interim order under section 116 (3)
Criminal Procedure Code,, henceforth if it comes to the
notice of this court that a person against whom
proceedings are initiated under section 107 of the
Code is detained in judicial custody for failure on his
part to furnish interim surety/security Bond or
personal Bond pursuant to an order passed under
Section 116 (3) of Criminal Procedure Code. The
State shall be liable to pay compensation to such
person for violation of his fundamental right
enshrined under Article 21 of the Constitution of
India and the aggrieved person may also take
recourse to other remedies available to him under
the general law viz. to prosecute the said
magistrate for wrongful confinement and
appropriate compensation for wrongful
detention."
In the light of the aforestated discussion and the above
ratio, the detention of the petitioner is illegal and it is in violation of
petitioner's fundamental right guaranteed under Article 21 of the
Constitution of India. The petitioner is, therefore, entitled for
compensation.
komal kamble 13/18
Criminal WP 731 of 2021
15. Respondent No. 3 has strongly relied on Section 3 of
Judges (Protection) Act, 1985 contending that his action of sending the
petitioner in magisterial custody was taken while exercising powers as a
quasi-judicial authority and during exercise of his duties without any ill
intention hence his actions are protected under Section 3 of the Act. For
dealing with the arguments of respondent no. 3, it is necessary to
consider as to whether the functions discharged by respondent no. 3 in
chapter proceedings as Executive Magistrate are executive or quasi-
judicial. It would be apposite to extract Section 3 of the Judges
(Protection) Act for better appreciation of the contentions raised by the
respondent no. 3. Section 3 reads thus:
"3. Additional protection to Judges - (1)
Notwithstanding anything contained in any other law
for the time being in force and subject to the
provisions of sub-section (2), no court shall entertain
or continue any civil or criminal proceeding against
any person who is or was a Judge for any act, thing or
word committed, done or spoken by him when, or in
the course of, acting or purporting to act in the
discharge of his official or judicial duty or function.
(2) Nothing in sub-section (1) shall debar or affect in
any manner the power of the Central Government or
the State Government or the Supreme Court of India
or any High Court or any other authority under any
law for the time being in force to take such action
(whether by way of civil, criminal, or departmental
proceedings or otherwise) against any person who is
or was a Judge.
The case laws relied by respondent are not relevant for
deciding the issue in hand as those case laws are on different facts,
circumstances, acts and powers.
komal kamble 14/18
Criminal WP 731 of 2021
16. Hon'ble Supreme Court in Gulam Abbas Vs. State of Uttar
Pradesh15 has succinctly considered this issue and held as follows:
"25. Turning to the 1973 Code itself the scheme
of separating judicial Magistrates from executive
Magistrates with allocation of judicial functions to the
former and the executive or administrative functions to
the latter, as we shall presently indicate, has been
implemented in the Code to a great extent. Section 6
provides that there shall be in every State four classes
of Criminal Courts, namely, (1) Courts of Session, (ii)
Judicial Magistrates of the First Class and, in any
Metropolitan area, Metropolitan Magistrates; (iii)
Judicial Magistrates of the Second Class; and (iv)
Executive Magistrates; Sections 8 to 19 provide inter
alia for declaration of metropolitan area, establishment
of Courts of Session, Courts of Judicial Magistrates,
Courts of Metropolitan Magistrates and appointments
of Sessions Judges, Additional Sessions Judges,
Assistant Sessions Judges, Chief Judicial Magistrates
Judicial Magistrates, Chief Metropolitan Magistrates
and Metropolitan Magistrates together with inter so
subordination, but all appointments being required to
be made by the High Court, while Sections 20, 21, 22
and 23 deal with appointment of District Magistrates,
Additional District Magistrates, Executive Magistrates,
Sub-Divisional Magistrates and Special Executive
Magistrates and their respective jurisdictions in every
district and metropolitan area together with inter se
subordination, but appointments being made by the
State Government, Chapter III comprising Sections 26
to 35 clearly shows that Executive Magistrates are
totally excluded from conferment of powers to punish,
which are conferred on Judicial Magistrates; this
shows that if any one were to commit a breach of any
order passed by an Executive Magistrate in exercise of
his administrative or executive function he will have to
be challenged or prosecuted before a Judicial
Magistrate to receive punishment on conviction."
15 1982 (1) SCC 71
komal kamble 15/18
Criminal WP 731 of 2021
In the very paragraph the Supreme Court has further
observed that,
"Further, if certain sections of the present
Code are compared with the equivalent sections
in the Old Code it will appear clear that a
separation between judicial functions and
executive or administrative functions has been
achieved by assigning substantially the former to
the Judicial Magistrates and the latter to the
Executive Magistrates. For example, the power
under Section 106 to release a person on
conviction of certain types of offences by
obtaining from him security by way of execution
of bond for keeping peace and good behaviour for
a period not exceeding three years-a judicial
function is now exclusively entrusted to a Judicial
Magistrate whereas under Section 106 of the old
Code such power could be exercised by a
Presidency Magistrate, a District Magistrate or
Sub-Divisional Magistrate, but the power to direct
the execution of a similar bond by way of security
for keeping peace in other cases where such a
person is likely to commit breach of peace or
disturb the public tranquility-an executive
function of police to maintain law and order and
public peace which was conferred on a Presidency
Magistrate, District Magistrate, etc. under the old
Section 107 is now assigned exclusively to the
Executive Magistrate under the present Section
107;"
It is also observed in the very paragraph that,
"But the fact that the parties and
particularly the aggrieved party are heard before
such an order is made merely ensures fair play
and observance of audi alteram partem rule
which are regarded as essential in the
performance of any executive or administrative
function and the further fact that a revision lies
against the order of the executive magistrate
komal kamble 16/18
Criminal WP 731 of 2021
either to the Sessions Court or to the High Court
removes the vice of arbitrariness, if any,
pertaining to the section."
The Supreme Court has discussed in detail the scheme of
separation of Executive and Judicial functions laid down in new
Criminal Procedure Code, and held that the power of Executive
Magistrate to direct the execution of a bond under Section 107 is an
executive function. If anyone commits breach of any order passed under
Section 117 by Executive Magistrate by not executing the bond then he
will have to be prosecuted before a Judicial Magistrate to receive
punishment.
In the light of aforestated ratio it is clear that respondent
no. 3 was discharging the executive function while conducting the
chapter proceedings against the petitioner under Section 107 of the
Criminal Procedure Code. Therefore, he is not entitled to claim
protection under Section 3 of the Judges (Protection) Act. We, therefore
find no merit in the submission of the learned senior counsel that
respondent no. 3 is entitled for protection under Section 3 of the said
Act.
17. It is now a settled position of law to grant compensation for
illegal detention for violation of Article 21 of Constitution of India. For
his illegal detention of seven days and for the violation of his right
komal kamble 17/18
Criminal WP 731 of 2021
under Article 21 of the Constitution of India, the petitioner is entitled
for compensation in terms of the ratio in Rajesh Suryabhan Nayak
(Supra).
18. In the result, we pass the following order :
ORDER
(i) The Writ Petition is allowed in following terms:
(a) The respondent no. 1, State of Maharashtra is directed to pay a sum of Rs. 1,00,000/- (Rupees one lakh only) to the petitioner for illegal detention.
(b) It is further directed that the amount shall be deposited in Registry within a period of four (04) weeks from the date of uploading of this order and the same be paid to the petitioner.
(c) The respondent no. 1 is entitled to recover the said amount of Rs. 1,00,000/- (Rupees one lakh only) from the respondent no. 3.
19. Rule is made absolute in above terms.
[VAISHALI PATIL - JADHAV, J.] [NITIN B. SURYAWANSHI, J.] komal kamble 18/18