Bombay High Court
Hiten Haridas Raichura vs The State Of Maharashtra And Anr on 11 November, 2024
HEMANT
2024:BHC-AS:43378
CHANDERSEN
SHIV
Digitally signed by
HEMANT
CHANDERSEN SHIV H.C. SHIV 901.w4396.2021.doc
Date: 2024.11.13
15:38:41 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4396 OF 2021
Hiten Haridas Raichura
Age 47 years, Residing at
1802, Casa Belisimo,
Behind Gorai Depot, Borivali,
Mumbai 400 092. ... Petitioner
vs.
1. State of Maharashtra
Through Colaba Police Station ...
2. Nimish Ramdas Shah
Age 58 years, Residing at
7, Mangrol Mansion, 6, Rustom
Sidhwa Marg, Fort ,
Mumbai 400 001. ... Respondents
Mr. Girish Kulkarni, Senior Advocate with Mr.Kripashankar Pandey,
Mr.Abhishek Kunchikor, Mr.Sujay Shingade, Mr.Mayur Tamore and
Mr.Himanshu Indise, for the Petitioner.
Mr. N. B. Patil A.P.P. for Respondent No.1-State.
Ms. C. Bocarro with Mr. Vivek Sharma for Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 11th SEPTEMBER, 2024,
PRONOUNCED ON : 11th NOVEMBER, 2024.
JUDGMENT :-
. Present Petition filed under Article 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code 1/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc seeking for quashing and setting aside of the impugned Order dated 10th April, 2019 passed by the 8 th Court of learned Additional Chief Metropolitan Magistrate, Esplanade, Mumbai in Complaint Case No.249/SS/2018 thereby said Court directed to issue process against the Petitioner for an offence punishable under Section 224 of I.P.C. The Petition also seeking for quashing and setting aside of the impugned Judgment and Order dated 27th September, 2021 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Greater Mumbai, thereby dismissing a Criminal Revision Application No.643/2019 assailing the said Order of issue process.
2) Heard learned Senior Advocate Mr.Kulkarni for the Petitioner, learned A.P.P. Mr. Patil for the Respondent-State and learned Advocate Ms. Bocarro for Respondent No.2. Perused record.
3) Rule. Rule made returnable forthwith and by consent of the parties taken up for final hearing.
4) The facts giving rise to this Petition are that, Respondent No.2 had filed a complaint bearing C.C.No.743/M/2002 in the 33 rd Court of Metropolitan Magistrate, Ballard Pier, Mumbai wherein the learned Magistrate passed an Order under Section 156 (3) of Cr.P.C. Pursuant thereto, M.R.A. Marg police station registered an FIR 2/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc bearing MECR No.14 of 2002 against the Petitioner along with Jayesh Doshi and Dharmesh Solanki. On completion of the investigation, said police filed a charge-sheet against the Petitioner's co-accused. Later on, supplementary charge-sheet came to be filed against the Petitioner arraying him as accused No.3. The case was numbered as C.C. No.279/PW/2006. On a full fledged trial in the case, the 16 th Court of Metropolitan Magistrate, Ballard Pier, Mumbai convicted and sentenced the Petitioner and his co-accused under Sections 420, 465, 467, 471 read with 34 and under Section 120B of the I.P.C, vide Judgment and Order dated 31st October 2013. The Petitioner and his co-accused assailed their conviction and sentence by filing Criminal Appeal Nos.134/2014 and 135/2014. The Respondent No.2 also filed a Criminal Appeal No.465/2014, as no compensation was awarded in the case. It was followed by Criminal Appeal No.855/2015 from Respondent No.1, seeking for enhancement of the sentence.
5) The Sessions Court by a Judgment and Order dated 10 th July 2017, dismissed the Appeals of the Petitioner and his co-accused and upheld their conviction. The Appeals filed by the respondents were allowed. The operative Order is as under :-
3/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc "1. Appeal No.134/2014 filed by the appellant Jayesh Pratap Doshi and Appeal No.135/2014 filed by appellants Dharmesh Jivanlal Solanki and Hiten Haridas Raichura are hereby dismissed.
2. Appeal No.465/2014 filed by the appellant Nimish Ramdas Shah and Appeal No.855/2015 filed by the State are hereby allowed.
3. The substantive sentence passed by the Metropolitan Magistrate, 16th Court, Ballard Pier in C.C.No.279/PW/2006 against all the accused i.e. Jayesh Pratap Doshi, Dharmesh Jivanlal Solanki and Hiten Haridas Raichura by order and judgment dtd. 31.10.2013 is hereby altered from simple imprisonment to rigorous imprisonment.
4. The Respondent no.2 to 4 in Criminal Appeal No.465/2014 Jayesh Pratap Doshi, Dharmesh Jivanlal Solanki and Hiten Haridas Raichura are hereby ordered to pay jointly or severally compensation of Rs.10,00,000/- each (Rs. Ten Lacks only) within three months from today and in default to suffer one year rigorous imprisonment.
5. The bail bonds of appellant/accused nos.1 to 3 Jayesh Pratap Doshi, Dharmesh Jivanlal Solanki and Hiten Haridas Raichura stands cancelled.
6. R & P be sent back to the trial court."
Sd/-.
(name) Addl. Sessions Judge, Sessions Court, Greater Mumbai.
4/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 6) It is alleged that, the Petitioner, his co-accused and the
Respondent No.2 were present in the Sessions Court at the time of pronouncement of the Judgment and Order. Thereafter, the learned Additional Sessions Judge directed the Sheristedar present in the Court to ask the police to take the Petitioner and his co-accused in custody. Hence, co-accused Jayesh Doshi and Dharmesh Solanki did not leave the Court premises, however, the Petitioner left the Court premises on the pretext of talking to his lawyers, who were present. Thereafter, the Petitioner did not return back to the Court and hence, the learned Additional Sessions Judge passed the following Order :-
"Later on, It is reported that, after the pronouncement of the order, when the Sheristedar was directed to ask police to take the appellants in custody, during the said period, immediately, appellant Hiten Haridas Raichura, under the pretext of talking with his Advocate left the Court and till 4.10 pm did not appear.
Ld. Trial Court to immediately issue conviction warrant and sent to execute the sentence."
sd/-
(name) Addl. Sessions Judge, Sessions Court, Greater Mumbai.
5/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 7) It is alleged that by disobeying the Order of learned
Additional Sessions Judge and leaving the Court premises as stated above, the Petitioner has committed the alleged offence under Section 224 of I.P.C. Hence, the Respondent No.2 filed the said Complaint Case No.249/2018 against the Petitioner.
8) The learned Additional Chief Metropolitan Magistrate, 8 th Court, (Esplanade), Mumbai recorded a verification statement of Respondent No.2 and considered the report of Respondent No.1 police filed under Section 202 of Cr.P.C. The report indicated that no offence under Section 224 of the I.P.C. is made out against the Petitioner. However, the learned Magistrate having regard to the text of the complaint and other material on record, passed the impugned Order dated 10th April 2019 and directed to issue process against the Petitioner. Aggrieved, the Petitioner filed a Criminal Revision Application No.643/2019 and assailed the impugned Order of issue process, questioning its correctness, illegality and propriety.
9) On perusing the record and hearing rival submissions, the learned Additional Sessions Judge held that the impugned Order of issue process does not suffer from any illegality, impropriety and incorrectness and dismissed the revision. Hence, this Petition. 6/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 10) Learned Senior Advocate Mr.Kulkarni for the Petitioner
emphatically submitted that, on the date when the Petitioner's Appeal was dismissed, the Petitioner was not in the custody of the Court as by virtue of the earlier Order, the Petitioner's conviction and sentence was suspended and he was released on the bail in the same Appeal. After pronouncement of the Judgment and Order in the said Appeal, immediately, the Petitioner was not taken in physical custody by the police. Therefore, just because the Petitioner went out of the Sessions Court, his said act cannot be held as escape from a lawful custody of the Court or police, which is an essential aspect to attract the offence of Section 224 of I.P.C. The Order of issue process is not a speaking Order meaning, it is not carrying the reasons to justify the passing of said Order. In the backdrop, the Petitioner cannot be prosecuted for the alleged offence of Section 224. To support the submissions, the learned Senior Advocate cited a decision in Lalankumar Singh and Othrs. vs. State of Maharashtras1 wherein it is held that, the Order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the Order itself.
1. 2022 SCC OnLine SC 1383.
7/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 11) In contrast, the learned A.P.P. for the Respondent No.1-
State vehemently submitted that, on cancellation of the bail bonds of the Petitioner, he was in judicial custody of the Sessions Court. Therefore, the Petitioner was duty bound to return to that Court after meeting with his lawyer. Withal, the Petitioner left the Court uninformed and without a reason. Before that, the learned Additional Sessions Judge had already directed the Court's Sheristedar to call the police to take the Petitioner in custody and to send him to jail to undergo the sentence. Therefore, the Petitioner's act of leaving the Court post dismissal of his Appeal and cancellation of the bail bonds is amount to escape from the custody of the Sessions Court. As such there is a prima facie case against the Petitioner of having committed the offence of Section 224 of I.P.C. Thus, both the impugned Orders are sustainable in law. As such, the Petition be dismissed.
12) Learned Counsel Mr.Sharma for Respondent No.2 adopted the arguments of learned A.P.P. and stated that the Petition be dismissed.
13) Considering the facts and circumstances of the case and rival submissions, first of all it is necessary to have a look at the provisions of Section 224 of I.P.C. which read as under :- 8/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc "224. Resistance or obstruction by a person to his lawful apprehension.--Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
14) As stated in the cited case of State of Orissa vs. Purna Chandra Jena2, said Section 224 has two distinct parts. The first relates to resistance to apprehension and the second part relates to escape from custody. In order to bring home the guilt of the accused under first part, the prosecution is to prove the following ingredients :
(1) that the accused was charged or convicted; (2) that he offered resistance or obstruction to his apprehension;
(3) that such resistance or obstruction was illegal; and (4) that the accused offered such resistance or obstruction illegally.
When the offence changed is that of escape or attempt to escape from custody, the prosecution is to prove the following:
2. 2005 SCC OnLine Ori 337 9/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc (1) that the accused was taken into custody for commission of an offence;
(2) that such detention in custody was lawful;
(3) that the accused escaped from such custody or made an
attempt to do so; and
(4) that the accused did so intentionally.
15) The word 'obstruction' appearing in said Section 224 is
not defined in the I.P.C. As stated in K J Aiyar Judicial Dictionary, "one of the general meaning of the "obstruct" means, to impede, hinder, retard, and in its legal sense of obstructing process under law, it means to commit the punishable offence of intentionally hindering the officers of the law in the execution of their duties. Mere obstruction, therefore, does not carry the meaning or any idea of use of force." Similarly, as stated in the same dictionary, "obstructing the police" includes anything which makes it more difficult for the police to carry out their duties and it is not confined to mere physical obstructions."
15.1) In the case of Sundeep Kumar Bafna vs. State of Maharashtra and Anr.3, in paragraph 9, the Hon'ble Supreme Court considered the meaning of the word 'custody' as stated in various dictionaries. Said paragraph 9 reads as under :-
3. AIR 2014 SC 1745.10/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc
"Meaning of custody :-
9. Unfortunately, the terms 'custody', 'detention' or 'arrest' have not been defined in the CrPC, and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance. The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance. The Cambridge Dictionary (online) explains 'custody' as the state of being kept in prison, especially while waiting to go to court for trial. Longman Dictionary (online) defines 'custody' as 'when someone is kept in prison until they go to court, because the police think they have committed a crime'. Chambers Dictionary (online) clarifies that custody is the 'condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them'.
Chambers' Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration. The Collins Cobuild English Dictionary for Advance Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison. The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. The Corpus Juris Secundum under the topic of 'Escape & Related Offenses; Rescue' adumbrates that 'Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over 11/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc another to confine the other person within certain physical limits or a restriction of ability or freedom of movement'. This is how 'Custody' is dealt with in Blacks Law Dictionary, (9th ed. 2009) :-
"Custody- The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term "custody"
within statute requiring that petitioner be "in custody" to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F. Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be "in custody" for purposes of habeas corpus proceedings." 15.2) Having thus considered the meaning of the word 'custody' resorting to various dictionaries, in paragraph 10 the Supreme Court held that, "A perusal of the dictionaries thus discloses that the 12/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc concept that is created is the controlling of a person's liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person's freedom of action. ..."
16) In the case in hand, from the operative Order under the Judgment of the learned Sessions Judge as mentioned above, it can be safely concluded that by dismissing the Appeal of the Petitioner, directing to cancel his bail bonds and to take him in custody for the offences for which his conviction was upheld, the learned Additional Sessions Judge intended to send the Petitioner to jail with the help of police and cause him to undergo the sentence imposed on him. This, the learned Sessions Judge deemed lawful and necessary so that the Judgments and Orders recorded by the trial Court and in the Appeal are lawfully executed. However, by vanishing from the Sessions Court under the pretext to talk to his lawyer, the Petitioner has caused an intentional plus illegal obstruction to the process of apprehending him by the police and taking him in their lawful physical custody to lodge him in the jail, even though his conviction was upheld by the Sessions Court. Said act of obstruction is clearly falling within the meanings of the word "obstruct" and "obstructing the police" as stated in K J Aiyar Judicial Dictionary and referred above. 13/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 17) Secondly, when the Petitioner filed the Appeal challenging
his conviction and sentence, he obtained bail under Section 389 of Cr.P.C., thus, the Petitioner subjected himself and his liberty to the discretion of the Sessions Court and the judicial Orders that may be passed in the Appeal. This option the Petitioner availed as he knew that otherwise he would be in jail during the pendency of his Appeal. As such, the Petitioner was aware that his bail would be operational till pendency of the Appeal only. Meaning thereby, once the Appeal is disposed of, the relief of said bail would come to an end by operation of law and in particular, on dismissal of the Appeal, the Petitioner shall immediately undergo the substantive sentence of imprisonment.
18) After dismissing the Appeal when the Court of the learned Additional Sessions Judge cancelled the bail bonds of the Petitioner and directed to call the police to take him into custody, the Petitioner's liberty was subject to the Orders of the Sessions Court and thus he was under restraint of the judicial Orders. As such, the Petitioner shall be deemed to be in constructive custody of the Appellate Court. However, the Petitioner escaped from the said lawful custody on a false pretext of meeting with his lawyer. Finally, after 05 months, the Petitioner surrendered before trial Court on 15.12.2017. 14/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::
H.C. SHIV 901.w4396.2021.doc 19) To fortify the aforesaid conclusion, a useful reference can
be made to a decision in Mohd. Azam Aslam Butt vs. State of Maharashtras and Othrs4 cited by learned Advocate Ms. Bocarro for Respondent No.2. In this case, the Petitioner was released from the prison after he complied with the parole Order and furnished the bail bonds. In compliance with the Order granting and extending the parole leave, the Petitioner was to report back to the prison authority but he did not. In this background, this Court held that non surrendering to the prison authorities after the expiry of parole or furlough leave period will amount to divergence from the standard rules and regulations. Therefore, the said Petitioner was held guilty of unlawfully departing from the legal custody and it is amounting to escape from the legal custody.
20) Upshot of the aforesaid discussion is that, a clear case of the offence punishable under Section 224 of I.P.C. has been made out against the Petitioner. As such, the trial Court is correct in issuing the process for the said offence and so the Sessions Court which dismissed the Criminal Revision Application challenging the said Order of issue process. Thus, both the impugned Orders are
4. Cri.W.P.No.951 of 2015 dtd.5/04/2016, BHC 15/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 ::: H.C. SHIV 901.w4396.2021.doc sustainable in law. In the result, the Petition is liable to be dismissed and is dismissed, accordingly.
[SHYAM C. CHANDAK, J.]
21) After pronouncement of the judgment, the learned Senior Advocate Mr.Kulkarni requested to stay this judgment and to continue the interim relief to facilitate the Petitioner to impugn this judgment before the Hon'ble Supreme Court. However, for the reasons recorded in the judgment, the said request is rejected.
22) Learned Advocate for Respondent No.2 submitted that, the Complaint Case No.249/SS/2018 is pending for more than 5 years. Hence, hearing and disposal of the said case may be expedited.
23) Considering the facts and circumstances of the case and that, the said Complaint Case No.249/SS/2018 is pending for more than 5 years, the learned Magistrate of the trial Court is requested to expedite the hearing and disposal of the said case, if possible, without affecting the other cases requiring expeditious hearing and disposal.
[SHYAM C. CHANDAK, J.] 16/16 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:27:33 :::