Bombay High Court
Bharat S/O Bhimraj Gabhane vs State Of Maharashtra, Through Its ... on 16 August, 2017
Bench: Vasanti A. Naik
1 cri.w.p.951.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No. 951 of 2015
[Mr. Bharat S/o Bhimraj Gabhane Vs. State of Maharashtra through its Secretary, Dept. of Home
and ors.]
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri R. R. Vyas, Advocate for the petitioner
Shri S. S. Doifode, A.P.P. for the respondent nos. 1 to 4
None for the respondent no. 5
CORAM : VASANTI A NAIK and
M. G. GIRATKAR, JJ.
DATE : 16/08/2017.
By this criminal writ petition, the petitioner seeks
compensation for violation of his fundamental rights
guaranteed under Article 21 of the Constitution of India. The
petitioner further seeks the initiation of a departmental enquiry
against the respondent no. 5.
The petitioner claims to be a practicing lawyer at
Lakhani, District Bhandara. A 'missing' complaint was lodged
by the parents of Bhushan on 23-4-2010. Certain enquiry was
conducted by the concerned Police Station Officer. In the
meanwhile, on the request made by the parents of the missing
boy, the investigation was transferred to the CID in view of the
directions issued by this Court in a writ petition filed by the
parents of the missing boy. After the CID started investigating
the matter, certain material was found against the petitioner
pertaining to the suspected involvement of the petitioner for
the offence punishable under Section 363 of the Penal Code.
The petitioner was arrested by the respondent nos. 4 and 5 on
11-2-2015 and within 24 hours, he was produced before the
2 cri.w.p.951.15.odt
concerned Magistrate with an application made by the
respondent nos. 4 and 5 for seeking police custody remand
for 7 days. The learned Magistrate, however, rejected the
application filed by the respondent nos. 4 and 5 for grant of 7
days police custody remand. The petitioner has filed the
instant petition seeking compensation and also the initiation of
the departmental enquiry against the respondent no. 5, Police
Inspector, State Crime Investigation Department to whom the
petitioner has joined in person.
Several grounds are raised in the petition for seeking
the aforesaid relief. The learned counsel for the petitioner has
however only argued that the respondents had not maintained
the diary of the proceedings in the investigation, as required to
be maintained under Section 172 of the Code of Criminal
Procedure. It is stated that as per Section 41 of the Code of
Criminal Procedure, it was necessary for the Police Officer to
record the reasons in writing while arresting the petitioner and
maintain the diary under Section 172 of the Code. It is
submitted that the respondent nos. 4 and 5 have not followed
the procedure prescribed by Section 41 of the Code while
arresting the petitioner and the diary is not maintained in
accordance with Section 172 of the Code.
Shri Doifode, the learned Additional Public Prosecutor
submitted that the offence for which the petitioner was
interrogated is a cognizable offence as defined under Section
2(c) of the Code of Criminal Procedure and since certain
material that was sought from the petitioner was not being
produced by him, the respondent nos. 4 and 5 had resorted to
the provisions of Section 167 of the Code of Criminal
Procedure for seeking further custody of the petitioner. It is
3 cri.w.p.951.15.odt
stated that the petitioner was being interrogated in respect of a
serious offence and hence, his detention was further sought
under the provisions of Section 167 of the Code of Criminal
Procedure. The learned Additional Public Prosecutor has
produced the case diary in the Court today to point out that the
reason for arresting the petitioner is mentioned in the case
diary and the procedure that is required to be followed while
arresting the petitioner under Section 41 was also followed
while arresting the petitioner. It is stated that the petitioner's
lawyer was present in the Police Station along with the
petitioners relatives and the petitioner was permitted to talk to
his lawyer from time to time. It is submitted that the case of
the petitioner that the respondent nos. 4 and 5 had not
arrested the petitioner as per the procedure laid down in the
Code of Criminal Procedure and that the diary was not
maintained as per Section 172 of the Code is incorrect. It is
stated that on further investigation, the petitioner has admitted
that he had purchased the mobile from which the messages
were sent to the parent of the missing boy and he had thrown
the handset in the Nag river. It is stated that in these
circumstances of the case, the writ petition is liable to be
dismissed as the same is filed by the petitioner with a view to
pressurize the respondent nos. 4 and 5 who are conducting the
investigation as per the provisions of Code of Criminal
Procedure and in view of the directions issued by this Court in
the writ petition filed by the parents of the missing boy. The
learned Additional Public Prosecutor sought for the dismissal of
the writ petition.
We find much merit in the submissions of the learned
Additional Public Prosecutor for the respondents. After perusal
4 cri.w.p.951.15.odt
of the police diary maintained under Section 172 of the Code
of Criminal Procedure, we find that the diary pertaining to the
investigation in the complaint of the missing boy appears to
have been maintained as required by the provisions of Section
172 of the Code. We find that reasons are recorded for
arresting the petitioner. We find that the case diary is
maintained as per Section 172 of the Code and each of the
pages of the diary are paginated. We do not, therefore, find
any merit in the submissions made on behalf of the petitioner
that since the arrest of the petitioner is made without recording
any reason in a diary and case diary is not maintained as per
Section 172 of the Code, the departmental enquiry needs to be
initiated against the respondent no. 5. We find much force in
the submissions made on behalf of the respondents that the
writ petition appears to have been filed with a view to take
action against the respondent no. 5 so that the respondent
no. 5 could be pressurized.
In the result, the criminal writ petition fails and is
dismissed. Order accordingly.
JUDGE JUDGE
wasnik
