Bombay High Court
Nasir Alim Hashmi (Mir Abdul Nasir ... vs State Of Mah. Thr. Pso Ps Kurkheda ... on 12 August, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:8954-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.855 OF 2022
1. Nasir Alim Hashmi (Correct Name :
Mir Abdul Nasir Hashmi) Aged about
40 years, Occ : Journalist R/o
Ranapratap Ward, Kurkheda Dist.
Gadchiroli
2. Shabir Alim Hashmi, Aged about 34
years, Occ : Agriculturist, r/o
Ranapratap Ward, Kurkheda Dist.
Gadchiroli.
3. Vinod Narayan Meshram, Aged about
42 years, Occ : Labour, R/o Shree
Ram Nagar, Kurkheda, Dist.
Gadchiroli.
4. Ishwar Waman Thakur, aged about
34 years, Occ : Cutlery, R/o
Ambedkar Ward, Kurkheda, Dist.
Gadchiroli.
5. Ejaz Rafik Sheikh aged about 37
years, Occ : Auto Dealer, R/o
Ranapratap Ward, Kurkheda, Dist.
Gadchiroli.
...PETITIONERS
VERSUS
1. State of Maharashtra, through PSO
2 3.cri.wp.855.2022 J..odt
PS Kurkheda, Gadchiroli.
2. Khushal Ramkrushna Bansod, aged
38 years, Occ - Contractor, R/o
Gandhi Ward, Kurkheda, Tq.
Kurkheda, Dist. Gadchiroli.
3. Abhay Murlidhar Ashtekar, Police
Inspector, Police Station, Kurkheda,
Dist. Gadchiroli.
4. Dr. Bhuneshwar Ghanshyam Khune,
Medical Officer, Sub-District
Hospital, Kurkheda, Dist. Gadchiroli.
... RESPONDENTS
__________________________________________________________
Shri Mir Nagman Ali, Advocate for the petitioners.
Shri A.B. Badar, Additional Public Prosecutor for the
State.
Shri Rajnish Vyas, Advocate for respondent no.3.
__________________________________________________________
CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
DATED : 12.08.2024.
JUDGMENT :(Per : Vinay Joshi, J.) RULE. Rule made returnable forthwith. Heard finally with the consent of both sides.
2. The petitioners are seeking compensation on 3 3.cri.wp.855.2022 J..odt account of illegal arrest, consequential relief of initiating Departmental Enquiry against respondent no.3 Police Inspector and an action for contempt of Court.
3. The facts in brief are that, one Khushal Bansod has lodged report on 26.09.2022 on the basis of which crime has been registered with the Kurkheda Police Station, District Gadchiroli vide First Information Report No.136 of 2022 for the offence punishable under Sections 325, 294, 143, 147, 148, 149 of the Indian Penal Code, and Section 135 of the Maharashtra Police Act. It is the informant's case that a Contract of collection of garbage was alloted to him. Petitioner no.1 Nasir Hashmi and Petitioner no.3 Vinod Meshram were dissatisfied by said allotment of contract and on said count, used to pick up quarrel. On 25.09.2022, around 10.00 p.m., while the informant was near panshop, the petitioners (accused) accosted him and abused in filthy language. Accused also assaulted him by means of stick, fists blows and kicks, and therefore, the report.
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4. On the basis of said report, the Police have registered aforesaid crime on 26.09.2022 around 3.46 a.m. All accused were arrested on the very day i.e. on 26.09.2022 around 6.10 a.m. and produced before the concerned Judicial Magistrate First Class within 24 hours with the remand report. Respondent no.3 the Investigation Officer sought police custody for the purpose of investigation. The learned Magistrate was pleased to remand the petitioners (accused) into the police custody till the next date i.e. 27.09.2022.
5. In the aforesaid background, the petitioners' would contend that all the offences are bailable, therefore the police could not have arrested them. In other words, the arrest in connection with bailable offences is totally illegal. Secondly, it is canvassed that in contravention of the guidelines issued by the Supreme Court in case of Arnesh Kumar vs. State of Bihar and anr. (2014) 8 SCC 273, arrest has been effected, without issuing mandatory notice under 5 3.cri.wp.855.2022 J..odt Section 41-A of the Code of Criminal Procedure (for short 'the CrPC).
6. The learned Counsel for the petitioners would submit that in case of bailable offences, the accused has a statutory right to get released on bail. The Investigating Officer did not inform the accused about the right to bail, but on the contrary sought the police custody remand. It is submitted that the learned Magistrate in ignorance of mandate of Section 436 of the CrPC has remanded them into the police custody, which is illegal. It is the petitioners' contention that since the offences are punishable up-to 7 years of imprisonment that too of bailable nature, there was no necessity of arrest. In case of Arnesh Kumar vs. State of Bihar (supra) directions have been issued about the necessity and procedure for arrest, which according to the petitioners, has been flouted. For aforesaid reasons the petitioners claim to grant compensation for violation of fundamental right to liberty by effecting illegal arrest.
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7. Learned Counsel Shri Vyas for the respondent no.3 Investigating Officer, would submit that there is no legal embargo in arresting the accused in bailable offences. Only after the arrest, the accused has a right to get released on bail, which they did not exercise. It is submitted that provisions of Section 41 of the CrPC did not preclude the arrest, in offences which may attract punishment to the extent of 7 years of imprisonment, however the rider contained in Clause 41(1)(b) of the CrPC has to be followed.
8. On facts, it is submitted that the petitioners (accused) after arrest, have not opted to exercise their right to get released on bail, and thus, the Investigating Officer cannot be blamed. It is submitted that, having regard to the nature of accusation the Investigating Officer has formed an opinion that there is necessity to arrest. The Police Officer has also recorded reasons for arrest, which were forwarded to the Magistrate along with the remand report. It is argued 7 3.cri.wp.855.2022 J..odt that the reasons for arrest assigned in writing would fall within the criteria incorporated in Section 41(1)(b) of the CrPC, and thus, arrest cannot be termed illegal.
9. Undisputedly, the accused were charged for bailable cognizable offences. It is also not in dispute that within 24 hours from the arrest, the accused have been produced before the concerned Magistrate. We are unable to see any provision, which could preclude the Investigating Agency to effect arrest in bailable cases, but Section 436 of the CrPC provides that in cases of such arrest without warrant, if an accused is prepared to furnishi bail, he shall be released on bail. In other words, there can be arrest in bailable offences, but on arrest the accused has right to get bail. The petitioners never contended that they had expressed to the Investigating Officer to furnish bail on their arrest. Moreover, the order of the Magistrate on the remand application never indicates that the accused urged for release on bail, rather it reveals that, at the time of remand, 8 3.cri.wp.855.2022 J..odt the petitioners/accused were represented by an Advocate, who has opposed for grant of police custody. The order of the Magistrate never indicates that the accused have specifically urged to release on bail as they have been arrested in connection with the bailable offences. There is no material before us to hold that the accused were ready/prepared to furnish bail on their arrest.
10. True, in all fairness, the Police ought to have informed to the accused about their statutory right to get released on bail. The remand report never discloses that the accused were informed about their right, which they ought to have. The Magistrate while authorizing the detention under Section 167 of the CrPC ought to have satisfied that arrest was legal and further detention is necessary. Moreover, the Magistrate ought to have also informed to the accused about his right to bail as all the offences are bailable in nature. Rather, it reveals from the order of the Magistrate that no one has adverted to the vital aspect that 9 3.cri.wp.855.2022 J..odt arrest was in respect of bailable offences. The order of Magistrate does not give a sense as to whether accused were made aware about their right to claim bail as offences are bailable. However, the matter was dealt in the fashion like the offences are of non-bailable nature. The lapses if any, on the part of the Magistrate in granting Police Custody Remand (PCR) cannot be termed to be a deliberate act of the Investigating Officer. It is for the Magistrate to authorize detention after 24 hours, which has been erroneously exercised in total ignorance of the statutory mandate of Section 436 of the CrPC. We may reiterate that for that reason the Investigating Officer cannot be blamed.
11. We have already observed that there are no allegations that the petitioners have prepared or shown their willingness to furnish bail, therefore, the arrest on said count cannot be termed as an illegal. The learned Counsel for the petitioners relied on the decision of this Court in case of Neelam Nitin Sampat vs. State of Maharashtra 2023 10 3.cri.wp.855.2022 J..odt ALL MR (CRI) 4095. In the said decision pertaining to bailable offences, the accused has offered to furnish bail, which was not considered. Thus, being vital difference in factual aspect, the said ratio would not assist in any manner.
12. Coming to the another challenge regarding illegal arrest on account of contravention of the directions of the Supreme Court in case of Arnesh Kumar vs. State of Bihar (supra), the matter largely revolves around the provisions of Section 41 of the CrPC, which we have extracted below to the extent of relevancy :
"41. When police may arrest without warrant. - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
[(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are 11 3.cri.wp.855.2022 J..odt satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured;
and the police officer shall record while making such arrest, his reasons in writing :..."
13. In case of Arnesh Kumar vs. State of Bihar (supra), it has been expressed that the Police shall avoid unnecessary arrest in cases where the offence is punishable up-to 7 years of imprisonment. The directions issued in 12 3.cri.wp.855.2022 J..odt paragraph 11 of the said decision reads as below : -
"11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/ producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused
13 3.cri.wp.855.2022 J..odt within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
14. In the said context, it is the petitioners' case that the Police ought to have issued notice under Section 41-A of the CrPC, which they did not, and thus, the directions of the Supreme Court have been flouted. Guideline no.1 postulates that there shall be no automatic arrest but the Police have to satisfy themselves about the necessity for arrest under the parameters flowing from Section 41 of the CrPC. Moreover, the Police have to furnish the reasons about the necessity to arrest.
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15. In the light of the guidelines and the provisions of Section 41 coupled with Section 41-A of the CrPC, we have assessed the entire material. Section 41-A of the CrPC provides that the Police shall issue a notice of appearance in cases where the arrest is not required under the provisions of Section 41 of the CrPC. The relevant provision of Section 41-A reads as below :
"41-A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice...."
16. The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a 15 3.cri.wp.855.2022 J..odt specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
17. Section 41-A(1) provides that if reasonable complaint has been made, or credible information has been received regarding the commission of cognizable offence and the Police Officer has reason to believe that the accused has committed the offence, then he can arrest subject to recording satisfaction on the parameters contained in Section 41(1)(b)(i) and Sub-clause (a) to (e) of Section 41(1)(b)(ii) of the CrPC. Undisputedly along with remand report, the Police have filed an application (page 33) informing to the Magistrate the grounds for arrest. The said 16 3.cri.wp.855.2022 J..odt application also bears a reference about the guidelines issued by the Supreme Court in case of Arnesh Kumar vs. State of Bihar (supra). The Investigating Officer has stated that the arrest is necessary as there is likelihood of accused committing similar type of offence, he may obstruct in process of investigation, there is likelihood of pressurizing the witnesses and the accused may not appear in the Court, therefore, arrest is necessary.
18. It is apparent that the Police Officer has recorded the reasons for arrest. Some of them may not be acceptable, but the satisfaction has been recorded by the Police to effect the arrest, and therefore, it cannot be said that there is breach of the directions issued by the Supreme Court in case of Arnesh Kumar vs. State of Bihar (supra).
19. In conclusion, no absolute proposition can be laid that arrest is wholly illegal in cases of bailable offences. However, the arrest shall be in exceptional cases, with a 17 3.cri.wp.855.2022 J..odt mandate to release the accused on bail, if he is prepared to do so. We see no material nor a contention of accused that after arrest they have prepared or applied for bail. Grant of PCR in bailable offences is not approvable in law unless special circumstances are shown but for that the Police cannot be held responsible. The petitioners have failed to make out a case that the arrest was wholly illegal as well as there is blatant breach of the directions issued by the Supreme Court in the case of Arnesh Kumar vs. State of Bihar (supra). In the circumstances, the petition deserves to be dismissed, hence we do so accordingly. No order as to costs.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.) Trupti Signed by: Trupti D. Agrawal Designation: PA To Honourable Judge Date: 14/08/2024 15:09:22