Bombay High Court
Jyoti Arun Jalake vs The State Of Maharashtra And Ors on 26 July, 2024
Author: A.S. Gadkari
Bench: A.S. Gadkari
2024:BHC-AS:29767-DB
MJ Jadhav 08 WP-3849-2013 - Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3849 OF 2013
Sou. Jyoti Arun Jalake
Age : 45 years, Occ.: Nil
R/at : 304, Amar Cottage,
Hadapsar, Pune. .... Petitioner
V/s.
1) State of Maharashtra
[Copy to be served upon the A.P.P.,
High Court Bombay] through the
Secretary, Home Dept. Mantralaya,
Mumbai.
2) Police Commissioner,
Pune City, Pune.
3) Sr. P.I. Shri Raghunath Jadhav
Hadapsar Police Station,
Hadapsar, Pune.
4) Sr. P.S.I., D. M. Darade
Hadapsar Police Station, Pune.
5) Smt. Lakade,
Police Constable,
Hadapsar Police Station,
Hadapsar, Pune. .... Respondents
Mr. Pawan Mali for the Petitioner.
Mr. J.P. Yagnik, APP for Respondent Nos.1 and 2 - State.
Mr. Sanjeev P. Kadam for Respondent Nos. 3 to 5.
CORAM: A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 08th MAY, 2024.
PRONOUNCED ON : 26th JULY, 2024.
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MJ Jadhav 08 WP-3849-2013 - Final.doc
JUDGMENT :[PER : SHYAM C. CHANDAK, J.] :-
1) Present Petition filed under Article 226/227 of the Constitution of India r/w. Section 482 of the Code of Criminal Procedure, for quashing of proceedings in Crime No.35 of 2013, registered against the Petitioner under Sections 112 and 117 of the Maharashtra Police Act ('the Act', for short), with Hadapsar Police Station and for direction to Respondent Nos.3 to 5 to pay a compensation of Rs.10 lac to the Petitioner for registering the said case falsely against her and on account of her illegal arrest and detention therein.
1.1) Respondent Nos.3 to 5 resisted the Petition by entering their separate Affidavits-in-reply dated 2nd/3rd February, 2018. 1.2) At the outset we noted that, the said case has been already disposed by the learned Magistrate invoking powers under Section 258 of Cr.P.C. As such, the prayer clause (a) in the Petition has become infructuous.
2) Heard Mr. Mali, learned Advocate for Petitioner, Mr. Yagnik, learned APP for Respondent Nos.1 and 2 and Mr. Kadam for Respondent Nos.3 to 5. Perused the record.
2.1) Record indicates that, Rule was granted on 27 th April, 2018. At that time, learned APP and learned Advocate Mr. Sanjeev Kadam waived the notice for the respective respondents.
3) Facts giving rise to this Petition are that, on 11th May, 2013 at about 11.45 a.m., the Petitioner was called at Hadapsar Police Station by 2/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc Respondent No.4 for recording her statement in relation to an Application filed by her on 2nd May, 2013. It is alleged that, the Petitioner attended, however, she shouted loudly, gathered crowd there and asked as, " what authority you have to question me. I have been seeking information against you under Right to Information". Thus, the Petitioner committed the breach of public peace in presence of Police. Hence, Respondent No.5 as first informant, filed the said Police Case No.35 of 2013 under Sections 112 and 117 of the Act. Thereafter, Petitioner was produced before a Judicial Magistrate First Class, at Pune alongwith Police Case Register No.35 of 2013 with an Application for Magisterial Custody Remand of 3 days'. In both the documents, the Petitioner was shown as arrested at 11:45 a.m.. The learned Magistrate granted the M.C.R., however, immediately released the Petitioner on PR bond.
3.1) The Petitioner averred that, she was arrested without informing the grounds of the arrest. Secondly, her arrest was not at all justifiable. The arrest was made with a biased mind and ulterior motive. As such, her detention after arrest was illegal. Hence, this Petition.
4) Learned Advocate Mr. Mali for the Petitioner submitted that, the society where Petitioner has been residing, was built on a plot. Certain tin sheds were illegally raised within the Society premises, which affected the peace, security and health of its members. Nevertheless, the Committee of the Society did not take any legal action against said tin sheds. The 3/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc Petitioner, therefore, made a correspondence with District Deputy Registrar of Co-operative Societies (DDRCS). On certain enquiry, it revealed to the DDR that, the said Committee was illegally established. Members of the Board of Directors did not furnish M-20 Bond in time. Hence, the Committee was dismissed and Administrator was appointed. 4.1) Learned Advocate submitted that, the Committee Members developed a grudge against the Petitioner due to the above circumstances. Therefore, they made a representation to the DDRCS with a copy to Hadapsar Police Station, even though said Police had no concern with the matter. As a result, said Police called the Petitioner and enquired with her. Thereafter, certain objectionable acts stated in the Petition were committed against the Petitioner and her family members by certain members of the Society, its Watchman and unknown persons, in the Society premises. The Petitioner got annoyed/offended due to said acts. Therefore, she filed several complaints with the Police Station concerned. Said Police, however, failed to enquire into the said complaints and take action against the wrongdoers. This caused the Petitioner to file appropriate applications under R.T.I. Act seeking information from the Public Information Officer (P.I.O.) of the Police authority. Consequently, Police also developed grudge against the Petitioner. Ultimately, when the Petitioner attended Hadapsar Police Station on 11th May, 2013 for enquiry as regards her complaint/s, Respondent Nos.3 to 5 illegally registered the said Case No.35 of 2013 4/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc against her for the alleged offence of Sections 112 and 117 of the Act and arrested her even though said offence was non-cognizable. Besides that, neither the Petitioner was informed the grounds of her arrest nor immediately released on bail by said Police even though the offence was bailable. Thereafter, Petitioner was produced before the concerned learned Judicial Magistrate, at about 4.30 p.m., at Pune along with Application seeking 3 days' M.C.R. The learned Magistrate took the Petitioner in custody, however immediately released on personal bond. Hence, the arrest of the Petitioner and her detention by Police was illegal as it was in stark violation of the Cr.P.C. and the guidelines laid down by the Hon'ble Supreme Court in the case of D. K. Basu v/s. State of West Bengal reported in 1997 (1) SCC 416. Accordingly, the Petition may be allowed.
5) Learned Advocate Mr. Kadam for Respondent Nos.3 to 5 submitted that, the Petitioner filed various applications/complaints against certain members of the Society and unknown persons. The Police concerned enquired into the same in accordance with law and to the best possible extent. Its outcome was informed to the Petitioner from time to time. However, the Petitioner, involved in filing unwanted R.T.I. Applications. She also filed undesired complaints with the higher authorities of the Police, Ministry of Home, etc. alleging that the Police are not conducting necessary enquiry in respect of the dispute between her and the Society. He submitted that, throughout the Petitioner was non-cooperative. Said fact is also noted 5/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc in station diary. Meanwhile, Respondent No.3 marked certain Application of Petitioner to Respondent No.4 for enquiry.
5.1) Learned Advocate submitted that, this incident occurred on 11th May 2013, between 11.30 a.m. to 1.00 p.m. On that day, Respondent No.4 had called the Petitioner in Hadapsar Police Station for necessary enquiry in relation to said Application. However, Respondent No.4 was not present in the Police Station as he had gone out for urgent investigation work. Respondent No.5 apprised that fact to the Petitioner and requested her to give the detailed information about her grievance. However, the Petitioner was not in a mood to listen. Then, suddenly the Petitioner used abusive and insulting words in presence of all other Police personnel and members of the crowd gathered there talking as, "if Mr. D.M. Darade (Respondent No.4) was not in Police Station, then why would he call me? Who gave you this authority to sit on chair, etc. " The behaviour of the Petitioner was out of control as she was shouting on every policeman. She also entered in the cabin of Respondent No.3 and abused him using filthy words. Respondent No.3 thus was compelled to instruct Respondent No.5 to register the said case against Petitioner and immediately produce her before the Magistrate. Thereafter when the Petitioner learnt about filing of the said case, she informed her husband who immediately came to the Police Station. Then, as requested by Petitioner's husband, he was allowed to take the Petitioner with him and produce before the Judicial Magistrate. Thus, 6/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc neither the Petitioner was arrested nor detained by the Police. This is confirmed by the extract of same dated station diary entry of the incident. However inadvertently, in the remand application and in the case the Petitioner was shown as arrested by the investigation officer. Thereafter, the Petitioner was released on PR bond and cash deposit. Now, the said case has been disposed of under Section 258 of Cr.P.C. In view thereof, there is no substance in the Petition, hence, the Petition may be dismissed.
6) Learned APP submitted that, considering the facts and circumstances of the case, necessary order may be passed in the interest of justice.
7) We have carefully scrutinized and considered the material on record in the light of rival submissions. Looking at the controversy involved in the matter, certain Sections of Cr.PC. and the Act are important to be considered. The directions issued in the case of D. K. Basu (supra) are also significant in that regard.
8) The main grievance of the Petitioner is that, neither she was informed that she would be arrested for the said offence nor the grounds of her arrest. Therefore, her arrest by the Police was in stark violation of the guidelines laid down by the Hon'ble Supreme Court in the case of D. K. Basu v/s. State of West Bengal reported in 1997 (1) SCC 416. This the Police did to her, only because she took an exception to the action of calling her by the Police for enquiry in relation to a representation made against 7/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc her by her Society members. Further, because she was seeking information from the Police under R.T.I. in relation to her complaints and complained to the higher authorities for not taking actions on her Applications/complaints and not providing any information about the action taken. In short, the Police wanted to teach her a lesson for acting against them. Therefore, the Petition deserves to be allowed.
9) In the above context, the Petitioner has placed on record various documents. Said documents revealed that, before July 2011, the Petitioner had complained against the Society in respect of some tin-sheds raised in the society premises. According to Petitioner, said tin-sheds were illegal. Therefore, on her complaint the DDR, Pune took action against the Committee of the Society for not furnishing the M-20 bond within time. Thereafter, the Petitioner filed several complaints with the Police in respect of different acts committed at different time by certain members of her Society etc., due to which she was offended/annoyed.
10) Record indicates that, the concerned Police looked into those complaints and did the necessary enquiry at their end. Meanwhile, the Petitioner was seeking information about the police actions taken on her complaints. However, she was not satisfied about the action taken on her complaints in respect of the incidents occurred on 3rd February 2013, when one member of the Society allegedly rushed on her person to assault and on 26th April, 2013 when 10-15 women members of the Society had been to 8/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc her house and threatened to beat her family, etc. Therefore, she gave an Application dated 2nd May, 2013 to the Commissioner of Police, Pune, to look into the matter and take an action. Said Application was forwarded to Hadapsar Police Station and it was marked to Respondent No.4, for enquiry. In turn, Respondent No.4 called the Petitioner for enquiry on 11 th May, 2013. However, Respondent No.4 was not available in the Police Station as he had gone out for investigation. When the Petitioner was informed this fact by Respondent No.3 and 5, she took an exception to that. Consequently, the matter precipitated and ultimately it led Respondent No.3 to file the said case through Respondent No.5. This all happened only due to an unreasonable doubt by the Petitioner against the Police who otherwise performed its duties in accordance with law.
11) Section 41 of Cr.P.C. pertains to power of Police to arrest without warrant. Clause (a) in Sub-section (1) thereof is relevant here. It provides that, any Police Officer may without an order from a Magistrate and without a warrant, arrest any person who commits, in the presence of a Police Officer a cognizable offence.
12) Sections 79, 80 and 81 of the Act also provide for power of Police to arrest without warrant. Said Sections read as under :-
"79. Power of Police to arrest without warrant when certain offences committed in his presence.-- Any Police Officer may, without an order from a Magistrate and without a warrant, arrest any person committing in his presence any offence 9/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc punishable under Section 117 or Section 125 or Section 130 or sub-clauses (i) (iv) or (v) of Section 131 or clause (i) of Section 135 in respect of contravention of any order made under Section 39 or 40.
80. Other powers of arrest.-- (1) Any Police Officer specially employed in this behalf by a competent authority may arrest without warrant for an offence specified in Section 110. (2) Any Police Officer may, on the information of any person in possession, or charge of any dwelling house, private premises or land ground attached thereto, arrest without warrant any person alleged to have committed therein or thereon an offence punishable under Section 120."
81. Refusal to obey warning or to accompany Police.-- A Police officer may arrest without warrant any person committing in his presence in any street or public place any non cognizable offence punishable under this Act, or under any rule thereunder and for which no express provision has been made elsewhere or under any other law for the time being in force, if such person-(i) after being warned by a Police officer persists in committing such offence, or (ii) refuses to accompany the Police officer to a Police Station on being required so to do.
13) Section 112 of the Act provides that, "No person shall use in any street or public place any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned". Said offence is punishable under Section 117 of the Act with fine, which may extend to Rs.1200/-. Therefore, as provided in Part II of the First Schedule of Cr.P.C., it would be a non- cognizable offence. However, it being an offence under any other law, it should be also investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Cr.P.C., but subject to any enactment for 10/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore, if the offence under Section 112 r/w. 117 is committed by any person in presence of any Police, said Police may arrest that person immediately without an order from a Magistrate and without a warrant, exercising her/his powers under Section 79 of the Act.
14) The object of the Act is not only to keep the society orderly and correct but also to correct the one who acts against that objective to be achieved. That is why Section 79 of the Act provides for arrest of the person by Police if he/she commits the offences stated therein in presence of such Police. Otherwise every such person would be allowed to go uninterrupted by Police even after committing breach of the law in presence of that Police. This would encourage the acts which are against the object of the Act i.e., 'maintenance of public order'. That is why Section 4 Sub-Section (2) of Cr.P.C. provides that, all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions in Cr.P.C., but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. This conclusion is fortified by the fact that, even Section 81 of the Act also empowers a Police officer to arrest without warrant any person committing in his presence in any street or public place any non-cognizable offence punishable under the Act, or under any rule 11/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc thereunder and for which no express provision has been made elsewhere or under any other law for the time being in force, if such person (i) after being warned by a Police officer persists in committing such offence, or (ii) refuses to accompany the Police officer to a Police Station on being required so to do. If this test of a logical interpretation and conclusion is not applied after reading and construing the provisions of Sections 2(c), 4, 5 of Cr.P.C. and Sections 79, 80 and 81 of the Act in harmony, the provisions as to the power of Police to arrest without an order from a Magistrate and without a warrant under Section 79 of the Act, would become redundant and ultimately it would act against the objective to be achieved under the Act i.e., 'maintenance of public order'.
15) In the case in hand, the Petitioner was creating ruckus and/or indulging into a breach of peace at public place i.e., the Police Station. The Petitioner created that situation only because Respondent No.4 was not available to enquire with her as he had gone out for some official work. Therefore, and considering the record, it seems that, with a view to prevent the Petitioner from continuing the said act, the local Police simply accosted her and charged with the offence under Section 112 r/w. 117 of the Act, exercising their power under Section 79 of the Act. However, as the Petitioner was not willing to pay the fine amount for releasing her immediately from the Police Station, the Police were left with no other alternative than to refer her to the Jurisdictional Magistrate along with the 12/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 ::: MJ Jadhav 08 WP-3849-2013 - Final.doc Police Case/report dated 13th May, 2013. As such, there is no illegal act of Respondent No.3 in directing to produce the Petitioner before the jurisdictional Magistrate with necessary report in that behalf. It appears to us that, while producing the Petitioner before the concerned Magistrate, the report submitted by the police was not happily worded as required under the provisions of Cr.P.C. However, when the Petitioner was produced before the Magistrate, he immediately released her on bail on executing a Personal Bond of Rs.15,000/-, after taking overall view of the case.
16) Thus, the entire process was carried out by following necessary procedure prescribed under the law and according to us, the Petitioner was never illegally detained by the Police-Respondent Nos.3 to 5.
17) Conspectus of the above discussion is that, there is no substance in the averment of the Petitioner that, she was illegally arrested and detained in the alleged offence by Respondent Nos.3 to 5. As a result, the Petition is liable to be dismissed and is accordingly dismissed. 17.1) Rule is discharged.
PREETI HEERO (SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.) JAYANI Digitally signed by PREETI HEERO JAYANI Date: 2024.07.30 15:02:39 +0530 13/13 ::: Uploaded on - 30/07/2024 ::: Downloaded on - 03/08/2024 12:27:31 :::