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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION .665 OF 2005
PETITIONER: Bhagwan S/o Shivram Patekar, aged
about 59 years, Occ-Retired Deputy
Superintendent of Police, R/o Shiv
Krupa Colony, Amravati, Tahsil &
District - Amravati.
-VERSUS-
RESPONDENTS: 1 The State of Maharashtra, Through
Secretary, Home Department,
Mantralaya, Mumbai.
2 The State of Maharashtra, Through
Anti Corruption Bureau, Amravati.
3 Shri G. Y. Bobde, Aged-Major, Occ-
Deputy Superintendent of Police, Anti
Corruption Bureau, Amravati.
None for the petitioner.
Shri M. J. Khan, Additional Public Prosecutor for the respondents.
CORAM: B.P.DHARMADHIKARI AND A.S.CHANDURKAR, JJ.
DATED: 1 OCTOBER, 2016.
st
ORAL JUDGMENT : (Per B. P. Dharmadhikari, J)
1. Nobody for the petitioner.
2. The learned Additional Public Prosecutor Shri M. J.
Khan has argued the matter on behalf of the respondents.
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3. Prayer in the petition is to award compensation of Rs.5,00,000/- to the petitioner for the wrongful detention in Central Prison from 29-8-2005 till 5-9-2005.
4. The learned Additional Public Prosecutor submits that special trial in Anti Corruption Offence against the petitioner is still pending. He also points out that ultimately matter came before this Court in Criminal Application No.2304/2005 and the order, on which the petitioner is basing his claim, was set aside. Fresh order was passed and the police custody remand for a day was allowed. According to the learned Additional Public Prosecutor, this order was never questioned and it, therefore, substantiates the insistence for grant of police custody remand by the respondents on 24-8-2005.
5. He further submits that on 24-8-2005, the trial Court granted magisterial custody remand and the matter was to come up on 29-8-2005. On 29-8-2005, the respondents sought adjournment to file reply to the application moved by the petitioner for his release on bail on 24-8-2005. The challenge to the order dated 24-8-2005 was ultimately looked into by this Court and allowed. As such, there is no question of respondents paying any compensation.
6. Inviting attention to the last portion of paragraph no.5 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:39:51 ::: wp665.05.odt 3/8 of the writ petition, the learned Additional Public Prosecutor submits that no grievance can be made against the Court and its order being judicial order at the most could have been questioned before the superior Court.
7. Facts shows that the petitioner was arrested in Crime No.3083/2005 on 28-3-2005 as claimed by him and papers show his arrests on 28-4-2005 at 3.50 hours. He was produced before the Special Judge, Anti Corruption at Amravati on 24-8-2005 itself.
The respondents then claimed police custody remand for a period up to 29-8-2005. The said request was not accepted and the petitioner was sent to the magisterial custody remand till 29-8-2005. The petitioner, therefore, moved an application seeking release on bail. The prosecution sought one day time to file reply to that application. On 25-8-2005, the prosecutor sought further time stating that the order refusing police custody remand was to be challenged before the higher Court. The learned Special Judge granted time to file reply till 29-8-2005.
8. As per the allegations in the petition on 29-8-2005 the petitioner was produced before the Special Judge and the respondents did not submit any application either for extension of magisterial custody remand or for any other purpose in relation to the custody. On the contrary, they moved another application on ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:39:51 ::: wp665.05.odt 4/8 29-8-2005 seeking time to file reply to the bail application which was pending since 24-8-2005. They pointed out that criminal revision application was filed before this Court. The learned Special Judge adjourned the matter on 30-8-2005.
9. In this background, the petitioner has in paragraph no.5 claimed that as on 29-8-2005 the period of magisterial custody remand was about to expire and there was no further request by the prosecution to extend it, the trial Court ought to have released the petitioner on bail. Contention is act of trial Court in sending the petitioner back to Jail ( in Magisterial Custody Remand) is improper. It is apparent that the said act was/is a judicial act and grievance against it would have been immediately made before superior Court, that was never done.
10. On 30-8-2005, the petitioner was produced before the Sessions Court and again the respondents sought time to file reply to the bail application. The Special Court allowed it and fixed the matter on 31-8-2005. On 31-8-2005, the prosecution sought further time and the learned Special Court granted the same till 2-9-2005. On 2-9-2005, the respondents filed a pursis pointing out that in criminal revision proceedings before the High Court the Counsel for the petitioner had sought adjournment and therefore, the revision was to be heard on 5-9-2005. Another application ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:39:51 ::: wp665.05.odt 5/8 seeking time to file reply to bail application was moved. The learned Special Court granted time till 5-9-2005 as a last chance.
11. On 5-9-2005, the Criminal Application No.2304/2005 was allowed and the order dated 24-8-2005 rejecting the police custody remand was quashed and set aside. The High Court directed the Special Judge to reconsider the application seeking police custody remand. Accordingly, on 6-9-2005 learned Special Judge reconsidered the application and granted police custody remand till 7-9-2005 i.e. of one day only.
12. We are not concerned with further developments in the matter as period for which compensation is claimed is between 29-8-2005 to 5-9-2005.
13. The prayer is against the respondents who are all Government Officers investigating into the alleged crime. They have sought time from the special Court and by judicial orders, time was granted. The magisterial custody remand up to 29-8-2005 was because of rejection of the application moved by the respondents on 24-8-2005 seeking police custody remand.
After the High Court order dated 5-9-2005, this order of rejection passed on 24-8-2005 was set aside and the request made by the prosecution to grant police custody remand on 24-8-2005 revived.
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14. The High Court aware of these facts has directed fresh consideration of that application. After giving due opportunity to the parties, the application was redecided and the police custody remand of one day was allowed. It is important to note that the police custody remand could not have been given from 24-8-2005 itself as it has to be prospective. Hence, the police custody remand of one day i.e. till 6-9-2005 was allowed. This order granting police custody remand of one day has attained finality. With the result, justification in insistence of the respondents for grant of police custody remand on 24-8-2005 stood substantiated on 5-9-2005. These developments, therefore, show that had there been police custody remand on 24-8-2005, the petitioner might not have been required to spend time in magisterial custody remand.
15. In any case, the time taken from 29-8-2005 till 5-9-2005 is in order to prosecute the judicial remedy by the respondents. Orders of the High Court passed on 5-9-2005 has found them justified in approaching the High Court. Thus, it cannot be said that the respondents have contributed in any way to allege illegal or wrongful detention of the petitioner. On the contrary, his application for release on bail on 24-8-2005 itself was impliedly rejected by this Court when it restored the prayer of the ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:39:51 ::: wp665.05.odt 7/8 respondents for grant of his police custody remand.
16. We, therefore, find that the grievance as made is misconceived. The writ petition is accordingly dismissed. Rule discharged. However, in the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
//MULEY//
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