Bombay High Court High Court

Age 61 Years vs Unknown on 28 July, 2010

Bombay High Court
Age 61 Years vs Unknown on 28 July, 2010
Bench: S.B. Deshmukh, S. S. Shinde
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               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

                                         .....



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                                       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

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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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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.

*****

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