1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 294 OF 2003
Murlidhar Atmaram Wani
Age 61 years, Occ. Retired
R/o. Near Tilak Talo,
Tq. Dharangaon, District Jalgaon ...Petitioner
Versus
1
D.D. Shankarwar, Inspector of Police)
Dharangaon Police Station
District Jalgaon
2 S.N. Pardesi (Police Head constable)
Batch No.42,
Dharangaon Police Station
Distrait Jalgaon
3 Vithal Sonwane,
Tahsildar Dharangaon
District Jalgaon
4 The Commissioner of Police
Nashik Division
5 District Superintendent of Police
Jalgaon, District Jalgaon
6 The State of Maharashtra
(Respondent Nos. 4 to 6 to be
served through G.P. Office
High Court, Bench at Aurangabad) ...Respondents
.....
Miss. Sadaf Quazi, advocate for the petitioner
Mr. V.D. Godbharle, A.P.P. for respondents
.....
::: Downloaded on - 09/06/2013 16:12:49 :::
2
CORAM: S.B. DESHMUKH &
S.S. SHINDE, JJ.
DATE OF RESERVATION
OF JUDGMENT : 08.07.2010
DATE OF PRONOUNCEMENT
OF JUDGMENT : 28.07.2010
JUDGMENT (PER SHINDE, J.)
1
The present writ petition is filed with prayer for issuance of
directions to respondent Nos. 4 to 6 to take deterrent action against
respondent No. 1, 2 and 3 i.e. the Inspector of Police, Shri D.D.
Shankarwar, Dharangaon police station, S.N. Pardeshi, (Police Head
Constable), Dharangaon Police Station and Mr. Vitthal Sonwane,
Tahsildar, Dharangaon. It is further prayed that the respondent Nos.
1, 2 and 3 be directed to pay compensation to the petitioner for their
illegal act of harassing and torturing the petitioner. Thus this petition is
filed with twofold prayers. This petition was heard by this court at
admission state on 15.12.2003, when “Rule” was issued. Now, matter
is taken up for final hearing.
2 It is the case of the petitioner that he retired as driver from
Municipal Council, Dharangaon. He has subscribed a cable
connection. One Jagannath Bansilal Shirsath, Aged 22 years, on
::: Downloaded on – 09/06/2013 16:12:49 :::
3
13.4.2003 at about 6.30 p.m. went on the roof of the petitioner’s house
with an intention to commit theft of cable wire. The petitioner caught
him red handed. The said person, being young and strong than the
petitioner, as the petitioner is old and handicapped by right hand and
was not able to resist the said person, said person succeeded in
escaping from the said place.
It is further case of the petitioner that he went to police station to
lodge the F.I.R. of the said incident, however, the concerned Officer on
duty told him to give written complaint. On the next day i.e. on
14.4.2003, at about 8.30 a.m. the petitioner went to the police station
and gave a written complaint. It is further case of the petitioner that
without reading the said complaint, same was torn into pieces and no
cognizance of said complaint was taken by the police Officer, who was
on duty. According to the petitioner, the respondent No.1 i.e.
Shankarwar was also present at the relevant time.
It is further case of the petitioner that instead of registering his
complaint, the police registered C.R. No. 165 of 2003 with Dharangaon
police station against the petitioner for assaulting Jagannath Bansilal
Shirsath. It is the case of the petitioner that the respondent No.1
demanded Rs.15,000/- for releasing the petitioner. It is further case of
the petitioner that his elder son Raju came to see him, however, he
was also detained in police station alongwith the petitioner.
::: Downloaded on – 09/06/2013 16:12:49 :::
4
Respondent No.1 released said Raju only after Rs.3000/- was paid to
respondent No.1. It is further case of the petitioner that since he was
not able to pay Rs.15,000/- to respondent No.1 on 14.4.2003, Chapter
case was filed against the petitioner on the same day. The Police
Officer wrote to the Tahsildar, Dharangaon to take action against the
present petitioner under Section 107 of Cr.P.C. According to the
petitioner, Tahsildar i.e. Executive Magistrate came to the police
station and passed an order for magisterial custody in the police
station itself and ordered “if not furnished bail, to be kept in custody till
16.4.2003.” It is further case of the petitioner that though respondent
No.3 had granted bail he himself refused to accept bail furnished by
the petitioner and the petitioner was kept in custody till 16.4.2003. On
16.4.2003, respondent No.3 accepted the bail instead of exercising his
discretion of releasing on “Security for Good behaviour,” According to
the petitioner, his detention from 14.4.2003 to 16.4.2003 was illegal
and Executive Magistrate has no power to order to furnish the bail
bond and detain the petitioner in custody till 16.4.2003.
The petitioner applied for certified copies of the record pertaining
to his arrest. According to the petitioner, respondent No.3 i.e. Tahsildar
came to know that the petitioner has applied for certified copy of the
record pertaining to his arrest. A police constable came to call the
petitioner to police station on 24.4.2003. The petitioner went to the
police station. Respondent No.1 abused and threatened the petitioner
::: Downloaded on – 09/06/2013 16:12:50 :::
5
and warned him not to think of initiating any legal action either against
him or the Tahsildar. The petitioner refuted this and therefore, he was
arrested and was produced before the Magistrate’s Court Erandol on
25.4.2003. It is further case of the petitioner that on 30.5.2003, he
filed representation with the Higher authorities of the police
department. It is further case of the petitioner that on 25.6.2003 in the
night at about 9.00 p.m. one police constable came to his house. He
informed the petitioner that the respondent No.1 had called him to the
police station on next day morning. They asked him to supply the
copy of the document, they refused to supply the copy and he was
made to sign. On 26.6.2003, when the petitioner went to police
station, respondent No.1 abused him and threatened him of dire
consequence. On 26.6.2003, the petitioner filed a representation to
respondent No.1 for taking action for obtaining his signature
deceptively. According to the petitioner, the action of the respondent
authorities is high handed and therefore, strict action is required to be
taken against the concerned respondents and the petitioner is entitled
for compensation.
3 We have heard learned counsel for the petitioner and learned
A.P.P. for the respondent authorities at great length. The affidavit in
reply is filed on behalf of respondent No.2 and also on behalf of
respondent No.3. Since the respondent No.1 is made party by name,
he has also filed his separate reply. It appears that the main grievance
::: Downloaded on – 09/06/2013 16:12:50 :::
6
of the petitioner is that he was illegally detained by the respondent No.
2 without any authority of law. According to the counsel for the
petitioner, in a chapter case the Executive Magistrate cannot direct to
furnish the bail or has no power to direct arrest of the petitioner.
According to the counsel for the petitioner, the petitioner was illegally
detained in jail from 14.4.2003 to 16.4.2003. It is further argued that
Section 41 of Cr.P.C. does not empower the police Officer to arrest
any person not accused of cognizable case. Section 42 of Cr.P.C.
contemplates situation when power of arrest can be exercised by the
police Officer, in case of non cognizable offence. The said power is
only to ascertain the name and address of the accused. The power
comes to an end the moment his credentials are ascertained. It is
further submitted that the police had no power to investigate into the
matter without any order from the Magistrate. Section 155 of Cr.P.C.
specifically provided that no police Officer can investigate the matter
without an order from the Magistrate. The affidavit filed by respondent
No.1 to the effect that he tried to settle the matter between the
petitioner and informant shows that he has indulged into and barged to
inquire into the matter, absolutely forbidden to him by the dictum of
Section 155. It is further submitted that Executive Magistrate has no
power under Section 107 of Cr.P.C. to order detention in custody. He
has power to issue show cause notice demanding why (after enquiry)
accused should not be made to execute a bond for keeping peace for
one year. According to the counsel for the petitioner, the interim bond
::: Downloaded on – 09/06/2013 16:12:50 :::
7
as provided under Section 116(3) of Cr.P.C. can be demanded from
the person who is being proceeded under Section 108, 109 and 110 of
Cr.P.C. i.e. those disseminating seditious matter, suspected persons,
habitual offenders respectively. According to the counsel for the
petitioner the case which was lodged against the petitioner was non
cognizable case which police ought not to have investigated without
express permission of the Magistrate. The sum and substance of the
argument advanced by counsel for the petitioner is that in the first
instance the police have no power to investigate into the matter unless
the permission is sought from the Magistrate and secondly the
Executive Magistrate has no power to direct detention of the petitioner
while invoking Section 107 of Cr.P.C. Therefore, the counsel for the
petitioner submits that this petition deserves to be allowed.
4 We have heard learned counsel for the petitioner and the
learned A.P.P. for the respondent-State. Respondent No.2 herein was
in charge of police station on 13.4.2003 between 14.00 to 20.00 hours
at Dharangaon police station. In his affidavit in reply, it is stated that
one Jagannath Bansi Shirsath, R/o. Dharangaon came to the police
station at about 19.45 hours and made a complaint in writing stating
that he is serving with cable operator and was doing business of cable
operation work on 13.4.2003 at about 18.45 hours, the petitioners
called him at the terrace of his residential house and threatened him
that he will lodge complaint against him for theft of cable wire. The
::: Downloaded on – 09/06/2013 16:12:50 :::
8
complainant Shri Jagannath Shirsath told the petitioner that the
petitioner has not paid cable connection charges within stipulated
period and therefore, cable connection has been disconnected. On
being annoyed, the petitioner herein assaulted the complainant Shri
Jagannath Bansi Shirsath. The complaint further reveals that the
petitioner has twisted left hand finger of the complainant and pushed
the complainant on the terrace. The complainant also alleged in the
complaint that he was beaten by the petitioner by fist and kick blows.
On the basis of the said complaint non-cognizable case No. 165
of 2003 was registered for the offence punishable under section 323 of
I.P.C. against the petitioner. The complainant Shri Jagannath Shirsath
was referred to the Rural Hospital, Dharangaon for medical treatment.
The respondent No.1 issued instructions to respondent No.2 to
initiate appropriate preventive action against the petitioner. The
affidavit of respondent No.2 further mentions that Jagannath Shirsath
and the petitioner residing adjoining to each other and there is every
possibility of committing serious offence and therefore, it was
necessary to take appropriate preventive action against the petitioner.
The petitioner was called upon to remain present in the police station
on 13.4.2003. However, the petitioner did not turn up to the police
station. A message was again sent to the petitioner to attend the
police station on 14.4.2003. The petitioner was informed that said
::: Downloaded on – 09/06/2013 16:12:50 :::
9
Shirsath has filed non cognizable case against the petitioner.
Therefore, taking into consideration that no further serious
offence should be committed by the petitioner, the proposal was
referred to Taluka Executive Magistrate for initiating appropriate
preventive action under Section 107 of Cr.P.C. The Executive
Magistrate, Dharangaon initiated chapter proceeding against the
petitioner.
It is further stated by respondent No.2 that complainant Shri
Jagannath Shirsath produced medical certificate dated 22.4.2003
issued by the Medical Officer, Rural Hospital at Dharangaon and
lodged F.I.R. against the petitioner for the offences punishable under
Sections 325 and 323 of I.P.C. On the basis of the said report, offence
was registered under Section 325 and 323 of I.P.C. against the
petitioner. The petitioner was arrested on 24.4.2003 at 20.40 hours.
He was produced before the Magistrate on 24.5.2003 at 3.00 p.m.
The petitioner herein did not make any complaint of ill treatment at the
hands of the police before the learned J.M.F.C. at the relevant time.
The petitioner came to be released on 25.4.2003. Respondent No.2
alongwith his reply has annexed copy of the extract of lock up register
and the station diary entry. The lock up register and station diary entry
clearly show that the petitioner was arrested on 24.4.2003 on 20.40
hours and was produced before learned J.M.F.C. on 25.4.2003 at
::: Downloaded on – 09/06/2013 16:12:50 :::
10
15.00 hours. The lock up register also mentions that the crime is
registered against the petitioner under Section 323 and 325 of I.P.C.
Respondent No.2 has categorically denied that he made demand of
money from the petitioner to release him. The affidavit categorically
denies all allegations levelled against respondent No.2 in the writ
petition. It is not in dispute that the petitioner has not filed any
rejoinder affidavit to this reply filed by respondent No.2.
5
Respondent No.3 who was Executive Magistrate at the relevant
time and also working as Tahsildar, has also filed affidavit in reply. In
para 3 of the reply, respondent No.3 has stated that on receipt of the
proposal from respondent No.2 for initiating proceeding against the
petitioner under Section 107 of Cr.P.C., he passed necessary orders
on the same day, on which the proposal was received. The petitioner
was told to remain present on 16.4.2003 alongwith the surety. This
respondent has specifically denied the allegations of the petitioner that
on 14.4.2003 he came to police station Dharangaon and passed order
and in pursuance to the said order, Police had illegally detained the
petitioner from 14.4.2003 to 16.4.2003. It is further stated that on
14.4.2003 there was Dr. Babasaheb Ambedkar Jayanti and
respondent No.3 was performing his official duties. On 15.4.2003 also
there was Mahaveer Jayanti and for keeping law and order, this
respondent was present in the office and continued performing his
official duties. On 16.4.2003, the petitioner was present before the
::: Downloaded on – 09/06/2013 16:12:50 :::
11
Residential Naib Tahsildar Mr. V.B. Deshpande and said Residential
Naib Tahsildar, had passed an order under Section 111 of Cr. P.C.
and obtained signature of the petitioner on the notice on the same day.
On the same day, the petitioner submitted interim bond alongwith
surety namely Mr. Kashinath Pundlik Wani. His surety was accepted.
On the same day, the petitioner has executed interim bond alongwith
the surety. Copies of order passed under Section 111 of Cr.P.C.,
application of surety, 7×12 extract of surety and interim bond alongwith
surety bond, Rojnama, copy of report filed by police in Chapter Case
No. 132 of 2003 are annexed with the said reply. It is specifically
averred in para 6 of the reply that the petitioner was never detained in
custody from 14.4.2003 to 16.4.2003 in chapter case No. 132 of 2003.
The petitioner was asked to execute a bond of good behaviour
alongwith the surety. This respondent has specifically denied the
allegations made against him in the petition. It is specifically stated
that there is no threat by this respondent to the petitioner as alleged by
the petitioner in the petition. Alongwith reply, the respondent has
annexed copy of the record maintained by the Superintendent, Sub
Jail, Erandol, District Jalgaon, to show that the petitioner was not
detained in jail during the period from 14.4.2003 to 16.4.2003, as
alleged by the petitioner. It is an admitted position that no rejoinder
affidavit is filed on behalf of the petitioner to the reply filed by
respondent No.3.
::: Downloaded on – 09/06/2013 16:12:50 :::
12
6 Separate affidavit is filed by one Mr. Deelip s/o Digambar
Shankarwar, P.S.I. Dharangaon police station, who is respondent No.1
in the petition. In his reply, he has stated that he is serving as police
Inspector with Dharangaon police station since last 6 months. One
Jagannath Bansi Shirsath lodged complaint against the petitioner on
13.4.2003 stating therein that the petitioner assaulted him and due to
which he has sustained injuries. This affidavit in reply also mentions
that this respondent has tried to settle the dispute so as to have
harmony. There is also mention in para 3 of the affidavit in reply that
report was submitted to the Taluka Executive Magistrate for initiating
preventive action under Section 107 of Cr.P.C.. It was requested to
Taluka Executive Magistrate to get the bond executed from the
petitioner for good behaviour. This respondent has specifically denied
the allegations of any demand of money by him from the petitioner. In
para 5 of the affidavit in reply, there is reference to injury certificate
issued by Medical Officer, Dharangaon Rural Hospital to Shri
Jagannath Shirsath. Medical Officer described the said injuries to be
grievous hurt and therefore, respondent No.2 registered offence vide
crime No. 45 of 2003 against the petitioner for the offence punishable
under Section 325 and 323 of I.P.C. This respondent has given details
about handing over the investigation in connection with crime No. 45 of
2003 to police constable Shri Shivram Pawar, B. No. 718. In para 7, it
is specifically mentioned that the petitioner was arrested in connection
with crime No. 45 of 2003 which was registered under Section 325 and
::: Downloaded on – 09/06/2013 16:12:50 :::
13
323 of I.P.C. and therefore, the said detention in connection with the
said crime was not wrongful. This respondent has specifically denied
the allegations levelled against him in the petition.
7 In order to find out correct position about alleged illegal
detention of the petitioner, we have perused the grounds taken in the
petition and also the annexures annexed to the petition. We have also
noticed the contents in the affidavit in replies filed on behalf of the
respondents. The relief claimed by the petitioner can be entertained
and granted only if the petitioner was illegally detained by the
respondent authorities as alleged by him. The another prayer, which is
sought by the petitioner is to take appropriate action against
respondent Nos. 1 to 3. The said prayer can be entertained and
granted only if we come to the conclusion that the actions taken by the
respondents against the petitioner were illegal, with malafide intention
and/or contrary to the law. We have given due consideration to the
submissions made by the counsel for the petitioner. At the cost of
repeatation, it is relevant to mention at this juncture that inspite of
giving opportunity to the petitioner for filing rejoinder affidavit, the
petitioner has chosen not to file affidavit in rejoinder to the affidavit in
replies filed by the respondents. Therefore, the averments in the
affidavit in reply are remained uncontroverted.
8 The grievance of the petitioner can be entertained only if there is
::: Downloaded on – 09/06/2013 16:12:50 :::
14
any documents on record to show or suggest that the petitioner was
illegally detained by the respondent authorities. In foregoing
paragraphs, we have referred to the affidavit in replies filed by the
respondents and also to the annexures thereto. Not only this but the
annexures to the petition also unequivocally indicate that the petitioner
was arrested in connection with crime No. 45 of 2003, which was
registered under Sections 325 and 323 of I.P.C. On plain reading of
Section 325 of I.P.C., it is clear that the said offence is cognizable
offence and therefore, the arrest of the petitioner on 24.4.2003 in
connection with the said crime No. 45 of 2003 cannot be said to be
illegal detention. It has come on record that the injuries sustained by
the complainant Mr. Shirsath was grievous in nature. Therefore, the
police officers were justified in registering the crime No. 45 of 2003
under Sections 325 and 323 of I.P.C. In connection with the said crime
charge sheet was filed before the competent Court. On perusal of the
charge sheet, it clearly reveals that the said crime was registered
under Section 325 and 323 of I.P.C. and therefore, the arrest of the
petitioner on 24.4.2003 and his further detention till 25.4.2003 does not
amount to illegal detention.
9 With the assistance of the counsel for the petitioner and the
learned A.P.P., we have carefully and minutely perused the pleadings
in the petition and also averments in the affidavit in replies and
documents annexed thereto and we are of the considered opinion that
::: Downloaded on – 09/06/2013 16:12:50 :::
15
there was no illegal detention or arrest in connection with chapter case
which was registered against the present petitioner. All three affidavits
are filed on behalf of the respondents, have specifically denied the
arrest of the petitioner in connection with chapter case, from 14.4.2003
to 16.4.2003. The petitioner has failed to produce any proof or
documents on record which would suggest that the petitioner was
illegally detained in chapter case from 14.4.2003 to 16.4.2003. There
is no iota of evidence except the bare words in the petition to suggest
that the petitioner was illegally detained in chapter case. In absence of
any proof of illegal detention or for that matter any other documents
including the affidavit of any other person that the petitioner was
illegally arrested, it is not possible to rely on bare words of the
petitioner that the petitioner was illegally detained by the respondents
authorities and therefore entitled for relief claimed in the petition. It is
not necessary to burden our judgment with any other points raised in
the petition since the petitioner has utterly failed to demonstrate before
us that the petitioner was illegally detained by the respondent
authorities. Though the counsel for the petitioner relied on various
judgments of this Court and the Apex Court, however, those
judgments are not applicable in the facts of this case for the reason
that on facts the petitioner has failed to demonstrate that he was
illegally detained by the respondents.
::: Downloaded on – 09/06/2013 16:12:50 :::
16
10 In the result, we find that there is no any document/record made
available by the petitioner to come to the conclusion that the petitioner
was illegally detained. Therefore, we do not find any substance in the
writ petition. Rule discharged. Writ petition stands dismissed. No order
as to costs.
*****
::: Downloaded on – 09/06/2013 16:12:50 :::