Dr. Nareshkumar Bansantilal ... vs The State Of Maharashtra & Ors.
2001 Latest Caselaw 186 Bom

JUDGMENT

Vishnu Sahai, J.

1. In this writ petition preferred under Article 226 of the Constitution of India, the petitioners who are practising doctors have made the following prayers :-

(a) direct the respondent No- 4 to take appropriate disciplinary action against P.S.I. Bagwan i.e. respondent No. 2:

(b) the respondents be directed to award a token compensation of Rs. 1,00,000/- each to both the petitioners who had to suffer humiliation at the hands of P.S.I. Bagwan who has flagrantly violated the directions of law;

(c) grant the petitioners such other and further reliefs as the facts and circumstances of this case so warrant.

2. The factual matrix (as per the averments made in this writ petition) from which this petition arises in short is as under :-

The Petitioner No. 1 Dr. Nareshkumar Basantilal Palvia (hereinafter also referred to as Dr. Palvia) is a qualified M.B.B.S. doctor and proprietor and owner of 'Palvia Clinic' situated at Gadab within the limits of Taluka Pen, District Raigad. The Petitioner No. 2 Dr. Ashokkumar Gopalrao Bidkar (hereinafter also referred to as Dr. Bidkar) is a general practitioner who practises in Pen and on call, works at Palvia Clinic, Gadab. He is also an Anaesthetist at Mahajan Hospital and Sitamai Hospital at Pen.

On 25.9.1997, at about 10 a.m. a patient named Lata Dliake. resident of village Shet Palas came to Palvia Clinic. She was having full term pregnancy. She was examined by Dr. Palvia. In his opinion she was not likely to deliver immediately. Hence, her relations chose to take her home. At about 2 p.m. she again came to Dr. Palvia's Clinic with labour pains where she was admitted at 6 p.m. It was noticed that heart beat of the foetus were irregular and rising. Consequently, Dr. Palvia advised immediate surgery and informed the relatives of Lata Dhake to take her to Alibag Civil Hospital or some other big hospital. However, they asked Dr. Palvia to operate on her. Dr. Palvia requested Dr. Bidkar to come over to his clinic. The latter came at about 7.50 p.m. At about 8 p.m. he examined Lata Dhake: studied her case papers; and opined that she was fit for surgery. At about 8.15 p.m. Xylocaine injection 5% ice was administered and at 8.25 p.m. surgery of Lata Dhake started. Her abdomen was opened at 8.30 p.m. At that time, a drastic fall in her blood pressure was noticed. Hence, the surgery was stopped and measures to save her were taken recourse to. Despite this at 9.15 p.m. Lata Dhake died.

The relatives of Lata Dhake were informed. Immediately a mob of about 300 people collected outside Dr. Palvia's Clinic. It started hurling stones. In the circumstances, sister of the clinic locked Dr. Palvia and Dr. Bldkar in the X-ray room and also locked the doors of the clinic from outside. As a consequence of the mob hurling stones. Dr. Palvia's clinic was damaged. Telephone connection was also snapped.

At about 10.15 p.m. two or three constables of Wadkhal Pol ice "Station came. The police rescued Dr. Palvia and Dr. Bidkar and took them to Wadkhal Police Station. At the said Police Station. P.S.I. Rafique Bagwan (respondent No. 2) recorded the F.I.R. at 11.30 p.m. At that juncture, one Dr. Chendwankar accompanied by Dr. Shahsnse who were friends of Dr. Palvia and Dr. Bidkar, came to the police station. The former requested P.S.I. Bagwan to permit Dr. Palvia and Dr. Bidkar to accompany them for some food and refreshments but, P.S.I. Bagwan did not permit. At about 3.30 a.m. both Dr. Chendwankar and Dr. Shahsane volunteered to stand as sureties for Dr. Palvia and Dr. Bidkar In case P.S.I. Bagwan wanted them to execute sureties. However, P.S.I. Bagwan did not accede to their offer. As P.S.I. Bagwan was not in a position to tell them as to how long the petitioners would be detained at the police station he asked the said doctors to go home. P.S.I. Bagwan however, assured Dr. Chendwankar and Dr. Shahsane that the petitioners would not be kept in the lock up and asked them to come in the morning.

On 26.9.1997 at about 9:30 a.m. Dr. Chendwankar visited the police station where he was informed by the police that they would like to visit the clinic of Dr. Palvia and draw a panchanama of the operation theatre and take charge of relevant materials. Consequently, Dr. Chendwankar accompanied the police to the clinic of Dr. Palvia. A panchanama was prepared. Staff of Dr. Palvia demanded a copy of the panchanama but, the same was hot given. On repeated enquiries, P.S.I. Bagwan refused to mention the reason as to why the petitioners were detained. Consequently, Dr. Chendwankar engaged the services of a lawyer who on that very date, i.e. 26.9.1997 made an application in the Court of J.M.F.C., Pen mentioning therein that on 25.9.1997, a complaint has been made against Dr. Palvia and Dr. Bidkar: they are being detained at Wadkhal Police Siaiion from 9.30 p.m. on 25.9.1997; they have committed any offence; and the police has not . informed them as to which offence has been registered against them. Consequently, it was prayed that the police be directed to produce them before the Court or release them on bail. On the say application, the J.M.F.C., Pen ordered "Issue notice to P.S.I, Wadkhal Police Station and directed to file say."

After receiving the said notice, respondent No. 2 registered an offence under section 304A of the I.P.C. at 4.05 p.m. same day at Wadkhal Police Station. The petitioners were not informed about any such developments but, they were put under arrest. They were ready to furnish ball but, P.S.I. Bagwan refused to accept it.

At 2 a.m. on 27.9.1997, the petitioners Dr. Palvia and Dr. Bidkar were put in lock up at the police station and on the same day, at 12.30p.m. they were produced before the J.M.F.C., Pen wherein their police custody, through an application was prayed but, the same was refused on the ground

that the offence under section 304(A) of the I.P.C. was a bailable one and bail was granted.

Thereafter, petitioners moved applications to.the fourth respondent the Director General of Police, State of Maharashtra praying therein that disciplinary action be take against respondent No. 2 P.S.I. Bagwan. From time to time, reminders were sent to him; the last reminder being dated 8.7.1998. When no response was'received from the office of the fourth respondent, the petitioners Dr. Palvia and Dr. Bidkar preferred the present writ petition in which, as seen above the prayer was not only that the fourth respondent be directed to take appropriate disciplinary action against P.S.I. Bagwan (respondent No. 2) but, that the respondents be directed to award a token compensation of Rs. l.OO.OOO/- each to both the petitioners for the humiliation they had to suffer at the hands of P.S.I. Bagwan.

3. We have heard Mr. Raja Thakare for the petitioners and Ms. Aruna Kamath, Additional Public Prosecutor for respondent Nos. 1 to 4. Mr. Raja Thakare emphatically urged that since the offence under section 304(A) of the I.P.C. was a bailable offence and the petitioners were prepared to furnish bail. P.S.I. Bagwan was under a obligatory duty in view of section 436 of the Cr.P.C, to forthwith grant bail to the petitioners and his failure to do so and his confining them in custody instead at the police station has resulted in infraction of their fundamental right guaranteed by Article 21 of the Constitution of India. Consequently he urged that the prayer for compensation In the circumstances was just and reasonable.

On the converse, Ms. Kamath appearing for respondent Nos. 1 to 4 has strenuously urged that since the respondent No. 2 acted in good faith in terms of section 159 of the Bombay .Police Act. 1951 the prayer for directing him and the other respondents to pay compensation is misconceived.

3A. We have reflected over the rival submissions and we find merit in Ms. Kamath's contention.

4. We may mention that pursuant to order dated 21.8.1998 passed by a Division Bench of this Court of whfch one of us (Vishnu Sahai, J.) was a member. Rule was issued In the instant writ petition and time granted to the Additional Public Prosecutor for filing a detailed affidavit. Thereafter, P.S.I. Bagwan filed two affidavits; the first dated 20.8.1998 and the second dated 18.9.1998.

It is pertinent to mention that two other affidavits namely those of Dr. C. R..Kadam (dated 13.8.1998) and Anil Chendwankar (dated 5.8.1998), were also filed and have been annexed to this writ petition.

A perusal of the affidavit of Dr. Kadam shows that on 25.9.1997 at 11 p.m. while he was at his clinic which was near the police station, he saw a crowd at the police station. He went there. He saw both the petitioners namely Dr. Palvia and Dr. Bidkar who told him that a patient had come for delivery and she had expired on the operating table. He also learnt from Dr. Palvia and Dr. Bidkar that a mob of 300 to 400 persons which was pelting stones had collected at the clinic and the police had brought them. Dr. Kadam has averred in his affidavit that Dr. Palvia and Dr. Bidkar were looking nervous and he told P.S.I. Bagwan (respondent No. 2) that if he wanted to take action against them he may take but, he be allowed to take them to his house for rest. The recitals in Dr. Kadam's affidavit show that P.S.I. Bagwan relented and he took them to his house and when at 4 p.m.

on 26.9.1997 he received a telephonic call from the police station from P.S.I. Bagwan that since a offence had been registered against the petitioners, he should bring them to the police station he brought them there.

5. Mr. Thakare, learned counsel for the petitioners urged that the averments made in this affidavit do not appear to be correct because had they been so, then a lawyer on behalf of the petitioners would not have moved an application in the Court of the J.M.F.C.. Pen on 26.9.1997 alleging therein that the petitioners had been detained at Wadkhal Police Station from 9.30 p.m. on 25.9.1997; they had not been informed as to what offence had been registered against them; and hence police be directed to release them forthwith.

Mr. Thakare also invited our attention to the affidavit filed by Dr. Chendwankar, the recitals wherein in his submission falsify the averments contained in the affidavit of Dr. Kadam. Mr. Thakare urged that in the said affidavit it has been mentioned that between 10 p.m. on 25.9.1997 and 3.30 a.m. on 26.9.1997. Dr. Chendwankar was at the police station and the petitioners were also there. Mr. Thakare contended that Dr. Chendwankar stated in his affidavit that P.S.I. Bagwan told him that he will not put the petitioners in lock up and he should come the next morning to make enquiries. He further stated that a perusal of the said affidavit shows that on 26.9.1997, he came to the police station and P.S.I. Bagwan refused to tell him why he had detained them. Hence, he was prompted to move an application through a lawyer on the same day.

6. Mr. Thakare contended that even if it is assumed that the F.I.R. was lodged at 4.05 p.m. on 26.9.1997, P.S.I. Bagwan was under a obligatory duty in terms of section of the 436 of the Cr.P.C. to grant bail to the petitioners forthwith, because the offence under section 304(A) of the I.P.C., in respect of which they had been arrested, was a bailable one and they were prepared to furnish bail.

7. We have reflected over Mr. Thakare's submissions and we are constrained to observe that we do not find any merit in them.

We make no bones in observing that the affidavits of Dr. Kadam and Dr. Chendwankar are conflicting the (former showing that at 11 p.m. on 25.9.1997, Dr. Kadam had taken the petitioners to his house and they were there till 4 p.m. on 26.9.1997 and the latter showing that in the said period the petitioners were at the police station) and we are not competent in the exercise of our jurisdiction under Article 226 of the Constitution of India to decide as to the averments contained in which of them are correct.

It is a time honoured principle that the High Court does not enter into disputed questions of fact in the exercise of its writ jurisdiction.

8. Coming to the submission of Mr. Thakare that since the F.I.R. against the petitioners was registered by P.S.I. Bagwan on 26.9.1997 at 4.05 p.m. for the offence under section 304(A) of the I.P.C. which was a bailable offence, and in respect of which P.S.I. Bagwan, in view of the provisions contained in section 436 of the Cr.P.C. was duty bound to release the petitioners on bail and since he did not do so, he violated the fundamental right of the petitioners guaranteed under Article 21 of the Constitution of India, inas much as he deprived them of their liberty in derogation of the procedure established by law and consequently he should be directed to pay compensation to them, we find the said submission to be untenable in view

of the averments contained in the two affidavits filed by P.S.I. Bagwan, respondent No. 2, which are supported by probabilities.

9. We find merit in the averments contained in both the affidavits filed by P.S.I. Bagwan. lie has categorically mentioned in them that on 25.9.1997 immediately after it was announced that Lata Dhake had died, a mob of 300 to 400 people surrounded the nursing home of Dr. Palvia (Petitioner No. 1) had damaged the same; and in order to ensure safety of the petitioners, he had brought them at the police station. He has averred in the said affidavits that in case the petitioners were granted bail, the likelihood of invoking the wrath of those people (mob of 300 to 400 people which had gathered at the nursing home) on the petitioners and the police personnel, could not be ruled out.

It is pertinent to mention that the petitioners have also admitted in para 9 of their petition that :- when on 25.9.1997 at about 9.30 p.m. it was communicated to the relatives of Lata Dhake that she had died in the operation theatre, a mob of 300 persons had collected; it had turned violent: had started throwing stones at the clinic of petitioner No. 1 Dr. Palvia; and consequently, the sister of the clinic locked the petitioners in the x-ray room of the clinic.

10. In such a situation, we cannot fault the judgment of P.S.I. Bagwan that in case the petitioners were released on ball, the mob would have turned violent and attacked the petitioners and the police personnel. In our view, the said judgment cannot be castigated as being reckless, malicious. and vindictive as urged by Mr. Thakare.

11. It should be borne in mind that when a Police Officer has to take a decision in a perilous situation, the said decision should not be examined microscopically on the touch stone of cold logic. If in such a situation, a Police Officer, to the best of his judgment takes a decision, which cannot be castigated as being unreasonable and this Court examines it on the norm whether it was a whollyjudicious and correct one and reaches a conclusion that since it was not so, he Is liable to pay compensation, the police would start playing safe and that in a given case such as the instant, may prove detrimental to larger public interests.

In our view, in the instant case, had P.S.I. Bagwan forthwith released the petitioners on bail, then the possibility of people turning violent and making an attack on the police personnel and the petitioners cannot be ruled out.

12. In the circumstances, in our view, it cannot be said that there is no substance in Ms. Kamath's contention that P.S.I. Bagwan acted in good faith in terms of section 159 of the Bombay Police Act, 1951. The said section read thus :-

"No Revenue Commissioner, Magistrate or Police Officer shall be liable to any penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given therein."

12A. Since the probability of P.S.I. Bagwan acting in good faith cannot be ruled out, he would not be liable to pay compensation to the petitioners in view of the embargo contained in the said section.

13. Before parting with this judgment, we would like to make it clear that this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India directs a public servant to pay compensation to a private citizen only where it is per se manifest that a public servant has acted in derogation oflaw and has caused injury to a citizen. Where this is not the case and the possibility of a public servant having a plausible defence cannot be ruled out, as is the case here, this Court Is loathe to grant compensation, for directing a public servant to pay compensation in such a case would demoralise public servants at large; would prompt them to play safe and that would prove to bo ;intagonisttc to larger public interests.

14. Since in our view, the possibility that the second respondent- P.S.I. Bagwan could have acted in good faith. In terms of section 159 of the Bombay Police Act. 1951 cannot be ruled out it would be erroneous to direct the respondents to pay compensation to the petitioners and to direct the fourth respondent (Director General of Police, State of Maharashtra) to take disciplinary action against respondent No. 2. as prayed in the prayer clause of the petition.

15. In the circumstances, we dismiss this writ petition and discharge the rule.

It is clarified that this judgment shall only govern this writ petition.