Radha Subhash Maid vs The State Of Mah & Ors
2017 Latest Caselaw 5195 Bom

                                   (1)                       Writ Petition No. 216/06


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 216/2006

 Sau. Radha w/o Subhash Maid
 Age : 25 years, occ : household,
 R/o Bori, Taluka Jintur,
 District Parbhani                                      ..  Petitioner.

          Versus

 1.       The State of Maharashtra
          Through Secretary (Home Department),
          Mantralaya, Mumbai.

 2.       The State of Andhra Pradesh
          Through Secretary (Home Department),
          Secretariat, Hyderabad.
          (Andhra Pradesh State).

 3.       The Inspector General of Police,
          Maharashtra State, Mumbai.

 4.       The Superintendent of Police
          District Shrikakulam.
          (Andhra Pradesh State).

 5.       Shri Shriniwasrao, 
          Circle Inspector, Police Station,
          Sompetha, Tal. Sompetha,
          District Shrikakulam.
          (Andhra Pradesh State)

 6.       District Superintendent of Police,
          Parbhani.

 7.       The District Superintendent of
          Police, Hingoli.




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                                         (2)                      Writ Petition No. 216/06


 8.       Mohsin Khan s/o Moinuddin Khan
          Age : 58 years, occ : Service
          As Police Inspector, Local Crime
          Branch, Hingoli.

 9.       Circle Inspector,
          Police Station, Ankapalli,
          District Vishakapattanam.
          (Andhra Pradesh State).

 10.      Director General of Police,
          Andhra Pradesh,
          Hyderabad (Andhra Pradesh 
          State).                                           ..  Respondents.


                                         ***

 Mr. S.S. Thombre, Advocate for petitioner.
 Mr. R.V. Dasalkar, A.P.P. for respondent Nos.1, 3, 6, 7 and 8.
 Mr. N.B. Suryawanshi, Advocate for respondent Nos. 5 & 9.
 Mr. E.D. Sawant, Advocate for respondent No.8.

                                         ***

                                             CORAM : T.V. NALAWADE &
                                                          SUNIL K. KOTWAL,JJ. 

DATED : 28.07.2017.

JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This Writ Petition is filed for the habeus corpus to

direct the respondents to search and produce Subhash Santram

Maid, who is the husband of petitioner, before this Court. A

consequential relief of compensation of Rs. 10,00,000/- was

(3) Writ Petition No. 216/06

claimed for illegal detention of the petitioner's husband by

respondents.

2. Respondent No.1 is the State of Maharashtra,

respondent No.2 is the State of Andhra Pradesh, respondent

No.3 is Inspector General of Police, Maharashtra State,

respondent No. 4 is Superintendent of Police, District

Shrikakulam-Andhra Pradesh, respondent No. 5 is Shri

Shriniwasrao, Circle Inspector, Police Station, Sompetha,

District Shrikakulam, respondent No. 6 is District

Superintendent of Police of Parbhani, respondent No. 7 is

District Superintendent of Police of Hingoli, respondent No.8 is

Mohsin Khan s/o Moinuddin Khan, Police Inspector, Local Crime

Branch, Hingoli, respondent No. 9 is Circle Inspector of Police

Station, Ankapalli, District Vishakapattanam and respondent

No.10 is the Director General of Police, Andhra Pradesh,

3. In brief, contention of the petitioner is that on

16-02-2006 at about 7.00 p.m. respondent No. 5-Shriniwasrao,

Circle Inspector of Police Station, Sompetha, District

(4) Writ Petition No. 216/06

Shrikakulam (Andhra Pradesh State) and police from

Maharashtra State visited to Bori where the husband of

petitioner runs the business of goldsmith. They took away the

husband of petitioner to Andhra Pradesh though no offence was

registered against him either in Maharashtra or in Andhra

Pradesh. At the time of this visit, Andhra Pradesh police as well

as the police from Local Crime Branch, Hingoli informed the

petitioner that Crime No. 6/2006, under Sections 302 and 397

of the Indian Penal Code was registered against the husband of

petitioner. On 19.02.2006 respondent No. 5 and respondent

No. 8 i.e. Mohsin Khan, Police Inspector, Local Crime Branch,

Hingoli sent message to the petitioner and demanded 100 gm.

gold for release of the husband of petitioner. Therefore, the

brother of petitioner went to Hotel National Dhaba and gave 55

gm. gold to respondent Nos. 5 and 8. However, as the demand

of 100 gm. gold was not fulfilled, the husband of petitioner was

not released. Therefore, on 19.02.2006 the brother of

petitioner went to Sompetha Thana, Andhra Pradesh for

obtaining the bail of the husband of petitioner, because they

learnt that the husband of petitioner was taken to Sompetha.

(5) Writ Petition No. 216/06

However, on enquiry, they learnt that no offence was registered

against the husband of petitioner at Police Station, Sompetha.

4. As the respondents illegally detained the husband of

petitioner, she filed Cri. M.A. No. 86/2006 before the Chief

Judicial Magistrate, Parbhani for search warrant. In response to

the notice served to respondent No. 8 in that proceedings, he

appeared in the Court of Chief Judicial Magistrate, Parbhani and

by submitting say informed that the husband of petitioner was

shifted to Sompetha by Circle Police Inspector, Sompetha. In

that proceedings Inspector of Local Crime Branch, Parbhani

appeared and denied to have arrested the husband of petitioner.

Nobody from Sompetha Police Station appeared before the

Chief Judicial Magistrate, Parbhani though notice was served

upon respondent No.5 Circle Inspector, Sompetha Police

Station. Therefore, search warrant under Section 97 of the

Code of Criminal Procedure was issued on 18.03.2006. On that

date Circle Inspector of Police Station Ankapalli, District

Vishakhapattanam, Andhra Pradesh sent fax message to the

Superintendent of Police, Parbhani that the husband of

(6) Writ Petition No. 216/06

petitioner was arrested alongwith other accused in Crime

No.59/2006, under Sections 41 and 102 of the Code of Criminal

Procedure. As the whereabouts of husband of petitioner could

not be traced out and as he was detained illegally by

Maharashtra and Andhra Pradesh Police, the petitioner was

constrained to file this petition for habeas corpus with

consequential relief of compensation.

5. By filing reply affidavit, respondent No.7 denied all

the allegations levelled by the petitioner. According to this

respondent, Mohsin Khan, the then Inspector of Local Crime

Branch, Hingoli never arrested husband of the petitioner. His

contention is that Crime No. 106/2005, under Sections 395 &

397 of the Indian Penal Code was registered at Police Station

Kurunda, Taluka Vasmat and respondent No.8 was investigating

that crime. Crime No. 248/2005 was registered at Hingoli City

Police Station, Crime No. 35/2005 was registered at Ansing

Police Station, District Washim and Crime No. 179/2005 was

registered at CIDCO Police Station, Nanded against unknown

persons. During investigation, it revealed that the husband of

(7) Writ Petition No. 216/06

petitioner was involved in the above-said offences alongwith

other accused. Therefore, when respondent No.8 had been to

Bori for investigation, that time Andhra Pradesh police officials

were present there and they were also investigating the similar

crime. Some arrested accused persons by Andhra Pradesh

police disclosed the name of the husband of petitioner as

purchaser of the stolen property. Therefore, to avoid arrest in

the above-said crime, the petitioner has filed this false Writ

Petition. Respondent No.7 made it clear that in Criminal M.A.

No.86/2006 Police Inspector of Local Crime Branch, Hingoli, by

submitting say, made it clear that Subhash Maid (husband of

petitioner) was taken in custody by Circle Inspector of

Sompetha Police Station in connection with Crime No. 6/2006

registered at Sompetha Police Station. That time two constables

from the Local Crime Branch, Parbhani accompanied Andhra

Pradesh police. In brief, the contention of respondent No.7 is

that, he was not involved in the arrest of the husband of

petitioner.

6. Respondent Nos. 5, 2, 9 and 10 filed reply affidavits

(8) Writ Petition No. 216/06

and denied that on 16.02.2006 Andhra Pradesh police arrested

the husband of petitioner. According to them, on that day

police from Andhra Pradesh visited Bori, but they only inquired

with the husband of petitioner and after inquiry, they left village

Bori without effecting any arrest. Their contention is that the

husband of petitioner was involved in various crimes registered

at different Police Stations in Maharashtra as well as Andhra

Pradesh. Therefore, initially on 18.03.2006 Assistant Sub

Inspector of Ankapalli Police Station arrested Subhash Maid and

recovered 50.240 gm. gold from his possession in Crime No.

59/2006, under Sections 41 and 102 of Cr.P.C. After knowing

this, Circle Inspector, Sompetha approached the Judicial

Magistrate, First Class of Sompetha and obtained transfer order

of Subhash Maid. From Sub Jail Ankapalli, Subhash Maid was

produced before Judicial Magistrate First Class, Sompetha and

thereafter as per the order of J.M.F.C. Sompetha, Sompetha

Police Station obtained police custody of Subhash Maid in Crime

No.39/2005 and 6/2005, upto 09.04.2006. During

investigation 91 gm. gold was recovered from Subhash Maid.

When he was remanded in Judicial Custody on 10.04.2006,

(9) Writ Petition No. 216/06

Police Station Parvatipuram obtained custody of Subhash Maid

from the Court. Thus, according to Andhra Pradesh police, they

never illegally detained Subhash Maid. Thus, all respondents

have denied the allegation of demand of gold by them from the

petitioner.

7. Heard learned Advocate for the petitioner as well as

learned Advocates for the respondents. Both of them argued in

the line of their respective pleadings.

8. At the stage of hearing, the so called missing

Subhash Maid filed affidavit before this Court and submitted

that he was arrested by P.S.I. Mohsin Khan of Local Crime

Branch, Hingoli on 16.02.2006 and he was kept in Savali Rest

House at Parbhani. On the next day he was kept in B & C Rest

House on the pretext of inquiry and thereafter he was taken to

Nanded, Hingoli and Washim by police vehicle. On 17.02.2006

he was taken to Zero Phata, Taluka Wasmat and he was directed

by police to call his father-in-law at National Dhaba. When his

father-in-law reached to National Dhaba, Zero Phata, Hingoli

(10) Writ Petition No. 216/06

Road, the police authorities demanded gold. However, as his

father-in-law handed over only 55 gm. gold to the police, he

was not released and kept in the Rest House at Parbhani

Railway Station. On the next day morning he was taken to

Vishakhapattanam by train. He was also taken to Sompetha,

District Shrikakulam in Andhra Pradesh and he was kept in

Police Station. Police from Andhra Pradesh demanded gold

from him. Police threatened to kill him in fake encounter.

Therefore, on the request of deponent, he was allowed to talk to

his family members. On 20.02.2006 his family members and

one Advocate came to Sompetha. But they were informed that

nobody was arrested at Police Station, Sompetha. As the police

could not extract gold and cash from the deponent, he was

taken to Ankapalli and on 18.03.2006 offence was registered

against him at Ankapalli Police Station, subsequently at

Parvatipuram-Shrikakulam and lastly at Police Station

Sompetha. Thereafter he was transferred to Maharashtra on

request by Maharashtra police in connection with the offence

registered at Ansing, Taluka Washim and Nanded police

stations. According to deponent, he was illegally detained by

(11) Writ Petition No. 216/06

police from 16.02.2006 till 18.03.2006.

9. No doubt, on the basis of above statement of

Subhash Santram Maid, definite conclusion cannot be drawn

regarding his illegal detention by Maharashtra and Andhra

Pradesh Police.

10. However, in view of the reply affidavit submitted by

Andhra Pradesh police officers, it is clear that for the first time

Subhash Santram Maid was arrested by Andhra Pradesh police

on 18.03.2006. After that he was produced before the

concerned Judicial Magistrates and his further remands were

obtained by different police stations from the different Courts.

Thus, the detention of the accused from 18.03.2006 cannot

become wrongful detention.

11. However, according to petitioner, her husband

Subhash Maid was taken in custody by police of Andhra Pradesh

alongwith the police from Local Crime Branch, Hingoli on

16.02.2006 at about 7.00 p.m. and thereafter continuously his

(12) Writ Petition No. 216/06

whereabouts could not be traced out despite of efforts by the

petitioner and her relatives. Though Andhra Pradesh police

officers have denied detention of Subhash Maid by them since

16.02.2006, the cat has come out of the bag in view of the say

submitted by respondent No.8 before the Chief Judicial

Magistrate, Parbhani on 18.03.2006 in Criminal M.A. No.

86/2006 filed by petitioner before the Chief Judicial Magistrate,

Parbhani for search warrant under Section 97 of Cr.P.C. In the

say submitted by respondent No.8 Police Inspector Mohsin

Khan, Local Crime Branch, Hingoli, he has made it clear that on

16.02.2006 alongwith Circle Inspector of Sompetha Police

Station, Andhra Pradesh, he had been to Bori for investigation

and that time two constables from Local Crime Branch, Parbhani

also accompanied them. In this say respondent No. 8 has

clearly stated that Circle Police Inspector of Sompetha Police

Station took Subhash Santram Maid in his custody and Andhra

Pradesh police thereafter went away.

12. Considering this affidavit, on 18.03.2006 Chief

Judicial Magistrate, Parbhani issued search warrant under

(13) Writ Petition No. 216/06

Section 97 of Cr.P.C. and directed Police Inspector of Nanalpeth

Police Station to take the search of Sompetha Police Station for

Subhash Santram Maid. After passing of this order, at 6.16 p.m.

Circle Inspector of Police Station, Ankapalli Town, District

Vishakhapattanam sent fax message to the Superintendent of

Police, Parbhani and informed that Subhash Maid was arrested

on 18.03.2006 alongwith other accused by police from

Ankapalli Police Station and they were sent in Judicial Custody

by Mandal Executive Magistrate, Ankapalli Town. This fax

letter placed on record certainly indicates that rat is smelling

somewhere. The say of respondent No. 8 filed in Criminal M.A.

No. 86/2006 together with fax letter submitted by Circle

Inspector, Ankapalli to Superintendent of Police, Parbhani

indicate the correctness of the contention of respondent No.8

that on 16.02.2006 Subhash Maid was taken in custody by

Andhra Pradesh police and that time Maharashtra police also

helped them.

13. In addition to this, the petitioner has filed copy of

inquiry report submitted by Sub-Divisional Police Officer,

(14) Writ Petition No. 216/06

Wasmat to Superintendent of Police, Hingoli on complaint

application filed by petitioner. In that inquiry he recorded

statement of Police Inspector Shrirang Nimmanwad, Local

Crime Branch, Parbhani who has stated before the Inquiry

Officer that on 16.02.2006 with the help of police constable

Jafar and Sachin Mahure from Local Crime Branch, Parbhani,

Andhra Pradesh police visited Bori and took away Subhash

Maid with them. To that effect this officer also submitted

complaint to Superintendent of Police, Parbhani.

14. Even Police Head Constable Jafar Mehmood, Local

Crime Branch, Parbhani has stated before the Inquiry Officer

that on 16.02.2006 alongwith Andhra Pradesh Police Officers

and Police Inspector Shri Khan of Local Crime Branch, Hingoli

(respondent No.8), he went to Bori and from there Subhash

Maid was apprehended by Andhra Pradesh police and he was

taken at first to Parbhani and thereafter to Hingoli. P.S.I. Kisan

Dhotre, Local Crime Branch, Hingoli has given statement that

on 16.02.2006 alongwith P.I. Khan (respondent No.8) he went

to Bori and Subhash Maid was taken in custody by Andhra

(15) Writ Petition No. 216/06

Pradesh police and on 19.02.2006 Andhra Pradesh police met to

Superintendent of Police of Hingoli. From the statement of this

witness, it also emerges that at Wagarwadi Dhaba he had

noticed Andhra Police police with arrested accused and later on

he came to know that Andhra Pradesh police obtained 58 gm.

gold from the brother-in-law of Subhash Maid at Wagarwadi

Dhaba.

15. Thus, sufficient material is available on record which

shows that with the help of Maharashtra police, the police

officers from Andhra Pradesh detained Subhash Maid in their

custody, without obtaining his further detention order from the

nearest Magistrate. The record indicates that till 18.03.2006

Subhash Maid was detained by Andhra Pradesh police without

any authorisation from the Magistrate. Thus, obviously the

State of Maharashtra as well as Andhra Pradesh are responsible

for illegal detention of Subhash Maid. If he was suspect

criminal, then Police Officer ought to have arrested him after

completing required formalities of arrest panchnama and within

24 hours they should have obtained further custody of Subhash

(16) Writ Petition No. 216/06

Maid from the nearest Judicial Magistrate. Thus, both States

are responsible for illegal detention of Subhash Maid.

16. No doubt, the antecedents of Subhash Maid do not

appear to be clean. However, as a citizen of India when his

personal liberty is illegally infringed by Maharashtra and

Andhra Pradesh Police Officers, the petitioner is entitled to

compensation from both the State as claimed by her.

Accordingly, we pass the following order.

ORDER

1. The Petition is allowed.

2. Both Governments viz. Maharashtra and Andhra Pradesh States do jointly and severally pay compensation of Rs. 1,00,000/- (Rupees One Lakh) to the petitioner or to Subhash Santram Maid, within 45 days from the date of this order.

3. If the amount is not paid within the above-

mentioned time, the amount shall carry interest at the rate of Rs. 9 % per annum.

(17) Writ Petition No. 216/06

4. There will be liberty to both Governments to fix the responsibility on the respective police officers for illegal detention of Subhash Maid and the Governments can recover that amount from the respective officers.

5. Rule is made absolute in the above terms.

                     Sd/-                                   Sd/-
          ( SUNIL K. KOTWAL)                      ( T.V. NALAWADE)
               JUDGE                                      JUDGE


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