Karnataka High Court
Riyaz Pasha vs Sub-Insepctor on 21 December, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
WRIT PETITION NO.23239/2018
AND
WRIT PETITION Nos.24400-24413/2018
BETWEEN:
1. RIYAZ PASHA
S/O MARDAN PASHA
AGE ABOUT 40 YEARS
CIVIL ENGINEER
R/AT NO.24, 7TH MAIN ROAD
VIJAY NAGAR-560 040.
2. MOHAMMED SHARIF
S/O MOHAMMED IQBAL
AGE ABOUT 40 YEARS
BUSINESS MAN
R/AT KODUGU FIRAR ROAD
MANGALORE CITY
D.K.DISTRICT-575 014.
3. DASTAGIR @ DADAPIR
S/O IBRAHIM KHAN
AGE ABOUT 39 YEARS
FRUIT VENDOR
R/AT 1ST CROSS
INDIRA COLONY
MANDYA-571 405.
2
4. RAFIQ AHMED
S/O KAMAL BASHA
AGE ABOUT 34 YEARS
FRUIT VENDOR
R/AT HOUSE NO.113
1ST FLOOR, FUNTEN STREET
K.R.MARKET,
BENGALURU-560 002.
5. MOOSA
S/O LATE SYED RAHIM
AGE ABOUT 39 YEARS
R/AT NO.26, 2ND MAIN, 2ND CROSS
1ST BLOCK, MUNESHWARA NAGAR
JAYNAGAR,
BENGALURU-560 011.
6. MOHAMMED FAROOQ
S/O J.M.ISMAIL
AGE ABOUT 32 YEARS
R/AT BAPU NAGAR
CHICKMAGALUR-577 102.
7. IMTIYAZ
S/O KHALID
AGE ABOUT 32 YEARS
R/AT NEW FAROOQ HOUSE
HARIKALA, MANGALOR CITY
D.K.DISTRICT-575 104.
8. NAZIR
S/O LIZNUDDIN
AGE ABOUT 2 YEARS
R/AT NO.2, 13TH CROSS
K.G.HALLI,
BENGALURU-560 045.
9. ILLYAS AHMED
S/O BASHIR
3
AGE ABOUT 40 YEARS
NO.11, 2ND CROSS
AMBEDAR MEDICAL COLLAGE, ROAD,
GANDHI NAGAR,
BENGALURU-560 045.
10. IMAMUDDIN
S/O MOHIDDIN
AGE ABOUT 32 YEARS
R/AT NO.2444, 11TH CROSS
NEAR BASHESHWARA HIGH SCHOOL
MCC 'A' BLOCK
DAVANAGERE-577 002.
11. MOHAMMED YAHAYA
S/O ABDUL SAB
AGE ABOUT 32 YEARS
R/AT NO.14, 4TH CROSS
AHMED NAGAR,
DAVANAGERE-577 002.
12. ASIF
S/O ABDUL JABBAR
AGE ABOUT 34 YEARS
R/AT NO.17TH CROSS
BASHA NAGAR
DAVANAGERE-577 002.
13. PARVEEZ
S/O NAZEER
AGE ABOUT 25 YEARS
R/AT NO.17TH CROSS
MILLAT COLONY
1ST MAIN, 4TH CROSS
DAVANAGERE-577 003.
14. SAMEER KHAN
S/O LATE IMAM KHAN
AGE ABOUT 40 YEARS
R/AT NO.NEAR MB BAKERY
4
DAVANAGERE-577 002.
15. FAZAL UR REHAMAN
S/O ABDUL REHAMAN
AGE ABOUT 30 YEARS
ITI LECTURER
R/AT NEAR NARANI SHADI MAHAL
2ND CROSS, IMAM NAGAR
DAVANAGERE-577 002. ...PETITIONERS
(BY SRI. MOHAMMED TAHIR, ADV.)
AND:
1. SUB-INSEPCTOR
GHANDHI NAGAR POLICE STATION
DAVANAGERE DISTRICT POLICE.
2. EXECUTIVE MAGISTRATE
TASHILDAR OFFICE
DAVANAGERE TALUK,
DAVANAGERE.
RESPONDENT NO1-2
REP.BY STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT COMPLEX
BENGALURU-560 001. ...RESPONDENTS
(BY SRI.K.P.YOGANNA, HCGP, FOR R-1 AND R-2)
****
THESE WRIT PETITIONS ARE FILED UNDER SECTIONS
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI AGAINST THE RESPONDENT NO.2
TO AND SEEK HIS RESPONSE FOR SENDING PETITIONERS
5
TO ILLEGAL CUSTODY AT THE INSTANCE OF
RESPONDENT NO.1 IN MOCK PROCEEDING UNDER
M.A.J.C.R/802/17-18 VIDE DATED 16.02.2018 AS
ANNEXURE-D BY EXCEEDING HIS STATUTORY POWER.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have sought for:
(a) Issuing writ of certiorari and seek response from respondent No.2 - Taluka Executive Magistrate, Davangere Taluk, for sending the petitioners to illegal custody at the instance of respondent No.1, in proceedings under No.M.A.J.Cr./ 802/17-18 dated 16.02.2018; and
(b) Issuing writ of mandamus against respondent Nos.1 and 2 directing them to pay the damages to the petitioners for their illegal act of arresting the petitioners and sending them to illegal custody, in the aforesaid proceedings.6
2. Heard learned counsel for the petitioners and learned State Public Prosecutor for the respondents.
3. The facts leading to this petition are that on the basis of the report submitted by the Police Sub- Inspector, Gandhinagar Police Station, Davangere, the Taluka Executive Magistrate, Davangere Taluk, initiated proceedings by his order dated 16.02.2018 in No.M.A.J.Cr./802/17-18 and has passed an order by exercising his powers under Section 116(3) for remanding the accused namely the petitioners to judicial custody till furnishing the surety or till 24.04.2018.
4. The learned counsel for the petitioners strenuously contended that the order passed by the Taluka Executive Magistrate is illegal and he has remanded the accused persons namely the petitioners 7 to judicial custody, without following the procedure and without issuing notice under Section 107 Cr.P.C. The entire proceedings were initiated at the instance of respondent No.1 - Police Sub-Inspector with a vindictive motive and to crush the spirit of petitioners in celebrating the foundation day of their organization. The Taluka Executive Magistrate was duty bound to act independently and to take necessary steps as provided in the relevant provisions of Cr.P.C., but he has acted at the behest of Police Sub-Inspector without following the procedure and has passed an order for illegal detention, which has caused injustice to the petitioners.
5. The learned State Public Prosecutor submitted that the learned Taluka Executive Magistrate has passed the order by following the procedure, as prescribed under Sections 107, 108, 111, 112, 116(3) under Chapter VIII of Cr.P.C. There is no illegality whatsoever committed by the Taluka Executive 8 Magistrate in passing the said orders. The detention of the petitioners was only till furnishing the surety. There was no violation of procedure, as Section 116(3) Cr.P.C. empowers the respondent No.2 - Taluka Executive Magistrate to order for remanding a person to judicial custody, till furnishing the surety. Under these circumstances, there are no valid grounds for seeking the report from respondent No.2 and for payment of damages to the petitioners.
6. In view of the submissions of the counsel for the petitioners and the learned SPP, the main point in controversy is that whether the order passed by the Taluka Executive Magistrate is in accordance with law. Main grounds urged are as under:
i. When the accused were in custody, the notice under Section 107 were forcibly served, as such, the same cannot be termed as proper service notice;9
ii. On the same day when the petitioners were produced before the Taluka Executive Magistrate, the bail application was also filed along with sureties, but the Taluka Executive Magistrate passed an order for detention of the petitioners and they were sent to illegal custody.
7. The learned counsel for the petitioners has relied on a decision reported in 2007 (4) KLJ 649 in the case of Sathi Sundaresh, s/o. Somayya vs The State P.S.I. of Moodigere, wherein, the Hon'ble High Court has held as under:
"3. The provisions of Section 107 of Cr.P.C. will have to be invoked by the Executive Magistrate only if he is of the opinion that there is every likelihood of breach of peace. The underlying object of Section 107 of Cr.P.C. is preventive and not penal. The section is designed to enable the Magistrate to take measures with a view to prevent 10 commission of offences involving; breach of peace or disturbance of public tranquility. Wide powers have been conferred on the Magistrates specified in this section and as the matter affects the liberty of an individual who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law as has been held by the Apex Court in the case of Ram Narain Singh and Ors. v. State of Bihar. The provisions of Chapter VIII may be easily made an engine of injustice and oppression and the High Court will exercise closest scrutiny to prevent the same. Section 107 of Cr.P.C. is not intended to afford the police a means of getting hold of a person against whom they cannot foist an offence or to enable them to detain him until they can work out a case against him. Section 107 of Cr.P.C. is mainly intended for persons who are of desperate characters and habitually disturbing the public peace. The proceedings under Section 107 of Cr.P.C. are concerning proper bonds to be taken from the concerned 11 persons by way of security for keeping peace."
8. In the aforesaid decision, the Taluka Executive Magistrate had sent the petitioners to judicial custody and the petitioners were detained without passing an order under Section 111 Cr.P.C. or under Section 116(3) of Cr.P.C. As could be seen from the records, in the present case, on 16.02.2018, the petitioners were arrested by respondent No.1 and produced before respondent No.2. On the said date, the respondent No.2 has passed a preliminary order dated 16.02.2018, which is at Annexure-C and on the same day, the proceedings were initiated on appearance of the petitioners.
9. The order sheet which is at Annexure-D discloses that on production of the petitioners, the contents of the complaint and orders were explained to them. In the synopsis of this writ petition, at column 12 No.6, it is submitted that respondent No.2 has forcibly served the notice to the petitioners when they were in custody of respondent No.1, which goes to show that the notice was issued before passing the orders, there is no dispute about other contents of Section 111 Cr.P.C. Thus, in my opinion, there are no valid grounds to hold that the proceedings initiated by the Taluka Executive Magistrate and the order passed for detention is illegal, perverse or capricious.
10. As observed by the Hon'ble High Court of Karnataka in the aforesaid decision, the scheme of Chapter VIII that the person, under Section 107 of Cr.P.C., can be arrested only if the Magistrate, under Section 113 of Cr.P.C., based on the report of the police officer or upon other information (the substance of which report or information is to be recorded in writing by the Magistrate) was of the opinion that there is reason to fear the commission of breach of peace and 13 that such breach of peace cannot be prevented otherwise than by immediate arrest of such person, the Magistrate may at any time after passing the order under Section 111 of Cr.P.C., issue warrant of his arrest. Secondly, if a person refuses to execute interim bond as contemplated under Section 116(3) of Cr.P.C., the person may be detained in custody. Thirdly, if the bond is not executed by a person after full pledged enquiry as per the order of the Executive Magistrate, he may be detained in custody under Section 122 of Cr.P.C.
11. In the present case, the order passed by the Taluka Executive Magistrate; order sheet and other documents placed on record by the counsel for the petitioners prove the compliance of the procedure under Chapter VIII, as such, the detention of the petitioners was illegal.
14
12. In the facts and circumstances of the case, there are no valid grounds for issuance of mandamus directing respondent Nos.1 and 2 to pay the damages to the petitioners or to seek response from Taluka Executive Magistrate, Davangere Taluk.
13. For the foregoing reasons, I am of the view that there are no valid or justifiable grounds to grant the reliefs claimed. Hence, I proceed to pass the following:
ORDER The petitions are dismissed.
Sd/-
JUDGE SJ