Bombay High Court
Bhagwan Shivram Patekar vs The State Of Mah.Thr.Secr.Mumbai ... on 1 October, 2016
Bench: B.P. Dharmadhikari
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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
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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
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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
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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
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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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