Shirishi Hiralal Choudhary vs The State Of Maharashtra And Ors
2017 Latest Caselaw 8551 Bom

                                                           Cri.W.P.No.124/2008
                                     1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 124 OF 2008

Shirish s/o Hiralal Choudhary,
Age 38 years, Occu. Business,
R/o Choudhary Galli, Nandurbar,
Taluka and District Nandurbar                        .. Petitioner

        Versus

1.      The State of Maharashtra

2.      The Special Executive Magistrate
        and Police Inspector of L.C.B.,
        Nandurbar

3.      Police Inspector,
        Nandurbar Town Police Station,
        Nandurbar                                    .. Respondents

Mr C.R. Deshpande, Advocate for petitioner
Mr P.G. Borade, A.P.P. for respondents


                               CORAM : T.V. NALAWADE AND
                                       A.M. DHAVALE, JJ

                               DATE OF RESERVING
                               THE JUDGMENT : 9.10.2017

                               DATE OF PRONOUNCING
                               THE JUDGMENT : 9.11.2017


JUDGMENT (Per A.M. Dhavale, )

1. This is a petition under Articles 14, 21 and 226 of the

Constitution. The petitioner, who is a Corporator at Nandurbar made

following prayers :

(B) By issuing writ of certiorari the notice issued by respondent no.2

Special Executive Magistrate and Police Inspector, L.C.B. Nandurbar to

the petitioner under Section 110 (e) and (g) of the Cr.P.C. may be

quashed;

Cri.W.P.No.124/2008

(C) Any appropriate writ for cancelling the directions to issue

interim bond executed by the petitioner on 28.12.2007 for a period of

one year;

(D) Issuance of Writ of certiorari for quashing of directions of

respondent no.2 dated 22.12.2007 of refusing to accept cash surety.

(E) Issuance of writ of certiorari for quashing of directions of

respondent no.2 for sending the solvency certificate for verification to

Police Inspector, Nandurbar;

(F) Issuance of writ of mandamus against respondent no.1 State to

pay compensation for unjustifiable action of arrest and detention

(from 21.12.2007 to 23.12.2007).

2. As per the documents on record on 22.12.2007, P.I. Nandurbar

City and Special Executive Magistrate made proposal for initiating

action under Section 110 (e) and (g) of Cr.P.C. against the present

petitioner. In the said proposal, it was pointed out that on 14.12.2007

at 21.40 Hrs., Head Constable Vijay Kulkarni of railway police station

had arrested two ladies in connection with illegal transport of country

liquor. At that time, the petitioner along with ten to twelve persons

entered the railway police station at Nandurbar by forming an

unlawful assembly and scuffled with police officials and intimidated

them. He held collar of Police Head Constable and damaged the

articles of police station and succeeded in taking away two arrested

ladies. That time cash of Rs.3,000/- of Head Constable Vijay Kulkarni

Cri.W.P.No.124/2008

and 200 bottles of illicit country liquor were also taken away.

Accordingly, F.I.R. at C.R. No.186/2007 under Sections 395, 353, 186,

147, 149, 504, 506 of Indian Penal Code and Sections 4 and 5 of the

Prevention of Damage to Public Property Act, 1984 came to be filed.

3. Earlier, in the year 2006, in a meeting held for celebration of

Sant Jagnade Maharaj Punyatithi, the petitioner along with 25 to 30

persons had assaulted Pravin Makkanrao Choudhari and his family

members by using sticks, lathis, iron rod and sword and attempted to

kill him and caused grievous injuries to them. Crime at C.R.

No.12/2006 was registered against the petitioner under Sections 307,

452, 143, 147, 148, 149, 325, 324, 323, 504, 506 of Indian Penal Code

and under Section 3/25 of Arms Act. One more offence at

C.R.No.105/2006 was also pending against the petitioner under

Sections 468, 471, 406 read with Sec.34 of Indian Penal Code and N.C.

Case No.547/2007 under Section 506 of Indian Penal Code was also

pending against the petitioner. The petitioner was running several

businesses in wine, permit room and beer bar in Nandurbar. He on

the basis of his huge income was maintaining ten to twelve persons in

order to commit serious offences. He threatened to disturb the public

piece and tranquility. He was not abiding by the provisions of law and

the orders issued under the provisions of law. He was using

dangerous arms and committing offences against public servants.

Hence, it was necessary to initiate proceedings against him and direct

him to execute bond with two sureties of Rs.2 lakhs under Section 110

(e) (g) of the Cr.P.C. The report itself shows that on earlier day, at

7.45 p.m., the petitioner was arrested under Section 41 (2) of Cr.P.C.

Cri.W.P.No.124/2008

On the day of arrest, from 8.15 p.m. to 10.00 p.m., the petitioner filed

four applications to P.I./P.I. Local Crime Branch, Nandurbar for

releasing him on bail, but no order was passed thereon. On the same

night, he also filed application before respondent no.2 Special

Executive Magistrate, Nandurbar for releasing him on bail, but since

no proceeding was filed before him, he did not pass any order. On

22.12.2007 at 5.30 p.m., P.S.I. Chhagan Patil of Nandurbar police

station produced the petitioner before the Special Executive

Magistrate, Nandurbar and submitted a report that since there was

election for the post of President and Vice-President of Municipal

Council and order under Section 37 (1) (3) of Bombay Police Act was

promulgated and considering the nature of offence committed by the

petitioner, he be directed to execute interim bond of Rs.40,000/- with

two sureties of Rs.20,000/- each. Those should be from his locality

and should be reputed persons (izfr"Bhr) of clean character (fu"Bkoku).

Thereafter, on the same day, a notice under Section 111 of Cr.P.C.

was issued by the Police Inspector, Local Crime Branch and Special

Executive Magistrate, which was served on the petitioner at 7.30 p.m.

It refers to the contents of the proposal of police and the personal

satisfaction of the Special Executive Magistrate that there was

likelihood of breach of public piece and tranquility. He was called

upon to show cause why bond for keeping piece and good behaviour

with sureties should not be taken from him. The petitioner

immediately filed application stating that the office of Tahsildar was

closed and he was ready to deposit cash surety of Rs.40,000/-, but the

said application came to be rejected. One more order was passed on

22.12.2007 that Police Inspector should verify whether the solvency

Cri.W.P.No.124/2008

certificate submitted is of competent solvent surety of clean character

and whether he had earlier appeared as a surety. He was called upon

to submit report on or before 24.12.2007 at 8.00 a.m.

4. On 23.12.2007, the petitioner again submitted application

stating as follows. He was never convicted for any offence. No

charge-sheet was submitted in Crime No.12/2005 whereas the enquiry

in Crime No.105/2006 was stayed by the orders of this Court. In

C.R.No.186/2007, the petitioner has got interim anticipatory bail. The

petitioner did not fall under the category of habitual offender. On the

next day, i.e. 24.12.2007, he was contesting election for the post of

Vice-President of Municipal Council and he was certain that he would

be elected, but if he would remain in jail, he would be deprived of his

right to contest the election and to vote. He would be subjected to

irreparable loss. Hence, he be released on cash surety of any amount.

On 23.12.2007, respondent no.2 allowed the application of cash

surety of Rs.40,000/- for the time being and directed the petitioner to

furnish two competent sureties of Rs.20,000/- each before

31.12.2007. The petitioner submitted his own interim bond along with

two sureties furnishing similar bond in respect of the petitioner. The

petitioner through his Advocate called information under Right to

Information Act about number of cases in which respondent no.2 had

sent the documents of surety for verification and the reply disclosed

that this was the only case in which such type of surety was taken

from 22.7.2006 till 29.7.2007.

Cri.W.P.No.124/2008

5. The reply filed by respondent no.2 does not dispute the factual

matrix discussed hereinabove. He claimed that brother of the

petitioner had submitted cash surety of Rs.40,000/- but he was

involved in case of making false documents with corrupt tendency and

was wanted in a case, where bogus fax message in the name of

Gujarat government was issued. Even the father of the petitioner had

furnished his surety, which was not acceptable, as he had a criminal

history. It is claimed that before the election on the earlier date,

petitioner was released on cash surety. There are grave allegations

against the petitioner as disclosed in the proposal. He claimed that he

has followed all the necessary guidelines governing the law and the

petition deserves to be rejected.

6. Learned Advocate Mr C.R. Deshpande for the petitioner

submitted that there was no material on the basis of which

proceedings under Section 110 (e) and (g) of Cr.P.C. could have been

initiated against the petitioner. The respondent no.2 has not followed

proper procedure as laid down for initiating such proceedings. He has

wrongfully directed the petitioner to submit interim bond and

wrongfully imposed conditions for surety of proper character and

wrongfully rejected the application for cash surety. The petitioner was

not a habitual offender nor he was so desperate and dangerous as to

invoke powers under Section 110 (g) of Cr.P.C. He submitted that the

petitioner is not interested in compensation of any substantial amount

and a token compensation of Rs.1/- would be also sufficient, but he

seeks a finding that the action taken by respondent no.2 was illegal

and arbitrary. Respondent no.2 has not recorded the necessary

Cri.W.P.No.124/2008

satisfaction that immediate measures were necessary for calling

interim bonds and no reasoned order was passed. In fact, the

directions for interim bond was issued even before issuing the show-

cause notice under Section 110 (e) and (g) of Cr.P.C. He, therefore,

submitted that the petition should be allowed in terms of the prayers

made.

7. Learned A.P.P. for the State supported the impugned orders and

contended that the allegations in the proposal disclosed that the

petitioner had no regards for the law and order. He was taking the

law in his hands and was engaged in serious crime of attacking Police

Officers and causing escape of two accused ladies involved in illegal

transport of country liquor and has also committed offence of dacoity.

Respondent no.4 has properly exercised powers under Section 110 (g)

of Cr.P.C. for preservation and maintenance of public order.

Respondent no.2 had jurisdiction to direct the petitioner to furnish

interim bond with surety as directed and the orders passed by

respondent no. 2 are legally sound and proper. There was no

malafide as the petitioner was released well in time for contesting the

election and for voting in the election. Hence, the petition is devoid of

merits and deserves to be dismissed.

8. The points for our consideration with our findings are as follows:

(I) Whether there was patent miscarriage of justice by respondent no.2 in the proceedings initiated against the petitioner warranting invoking powers under Article 226 of Constitution ? .. In the negative

Cri.W.P.No.124/2008

(II) Whether the procedure followed by respondent no.2 in effecting the arrest and detaining the petitioner is legal and proper as per the provisions of law ? .. Does not survive

(III) Whether the petitioner deserves to get token compensation of Re.1/-

for illegal arrest and detention ? .. In the negative

(IV) Whether the impugned order dated 22.12.2007 and interim bond taken from the petitioner deserves to be quashed as per prayer clause (B), (C), (D), and (E) ? .. In the negative

(V) What order ? .. The petition is dismissed

9. Learned Counsel Mr C.R. Deshpande for the petitioner relied on

following rulings :

1)      Mohan Khatri Vs. M.G. Ingle & Ors., 2004 ALL MR (Cri) 68


2)      Chandrakant Vs. Spl. E.M. 2004 ALL MR (Cri) 81


3)      Bhumraj Vs. Sr. I.P. 2004 ALL MR (Cri) 40


4)      Vasantkumar Vs. State of Mah. 2005 ALL MR (Cri) 2951


5)      Rajesh Vs. State of Maharashtra 2006 (2) Bom. Cr C 849


6)      Surendra Vs. State of Maharashtra 2001 ALL MR (Cri) 2079





                                                              Cri.W.P.No.124/2008




7)      Lalookhan Vs. M.M. Kamble,Spl.E.M. 1996 Cri.L.J. 801


8)      Parvatibai Vs. State of Maharashtra 2003 ALL MR (Cri) 1645


9)      Chandrabhan Vs. Indirabai 1998 (1) Mh.L.J. 234


10)     Vimladevi Tiwari Vs. State of Mah. 1999 ALL MR (Cri) 406


10.     We rely on :



10-A) Mudhu Limay Vs. Vedmurti, AIR SC 2481


11)     Madhu Limaye Vs. S.D.M. Monghyr & Ors. AIR 1971 SC 2486

12)     Ram and ors. Vs. State of M.P. AIR 1978 SC 1594

13)     Tavinder Kumar and anr. Vs. The State 1990 Cri.L.J.40

14)     Jwala Prasad Vs.State of Bihar 2000 SCC Online Pat 159

15)     Raghunath Vs. Jagannath Panda 1982 SCC Online 182

16)     Jarnail Singh Vs. Khushbakht 2009 SCC Online P & H 2917

17)     State of M.P. Vs. Savji Hima Bhil, 1986 M.P.L.J. 509

18)     Abdul Aziz and ors. Vs. State of U.P., 1981 SCC Online All 722

19)     Prakash Awasthi Vs.State of U.P. 1986 SC Online All 6

11. The legal proposition laid down in these cases may be stated as

follows :

1) The liberty of citizens should be respected - Sr.No.1 & 5

2) The provisions are preventive and not penal in nature-Sr.No.18 & 1

3) Strict compliance of procedure is essential -Sr.No.3, 8,10-A,15 & 19

4) No detention without preliminary order - Sr.No.11

Cri.W.P.No.124/2008

5) Executive Magistrate must record satisfaction about necessity

setting forth the substance of information in writing -

6) Normally summons has to be issued to which copy of order should

be annexed. Warrant to be issued in case the accused is in

custody or in exceptional case recording reasons that otherwise

breach of public peace cannot be prevented - Sr. No.4

7) The provisions of bail under Section 88 and 309 Cr.P.C. are not

applicable to the proceeding under Chapter VIII of Cr.P.C. -

Sr.Nos.11, 18, 16, 10-A

8) As per Section 115 Cr.P.C. the personal appearance of the party

can be dispensed with.

9) On appearance of the party, the proceeding should be initiated

as per Section 116 (1), (2).

10) Interim bond cannot be taken on the basis of police report or

before commencement of the proceeding. It can be taken after

commencement of the proceeding if the competent authority

feels that immediate measures are necessary to prevent breach

of public peace. The reasons for such satisfaction should be

recorded in writing. The interim bond can be, with or without

sureties - Sr.No.1,10-A, 15, 19, 14, 5, 6, 8.

11) The conditions for bond should not be onerous looking to the

facts of the case and the status of the party - Sr.No.1, 10-A, 15

19, 14, 5, 6, 8.

Cri.W.P.No.124/2008

12) The verification of surety should be carried out by the authority in

person as provided under Sections 441 (4), 441-A and Rules 14

and 15 of Chapter I of Criminal Manual. The competent authority

has discretion to accept cash surety.

13) If there is illegal detention, the Court can impose compensation

on the State.

14) As per Section 110 (e), the proceedings can be initiated only

against habitual offender, which means there should be conviction

against such person. The same is not applicable for invoking

powers under Section 110 (g) of Cr.P.C - Sr.Nos.9, 10.

12. We find substance in the arguments of learned Advocate Mr

C.R. Deshpande that while initiating proceedings against the

petitioner, the procedure was not properly followed. But we find that

there was no malafides on the part of the Special Executive Magistrate

as the petitioner was released by him on cash surety well in time so

that he could participate in the elections.

13. However, we find that in this case, the conduct of the petitioner

was such that initiation of proceedings under Section 110 (g) of Cr.P.C.

was essential for the maintenance of public peace. The petitioner

had gone along with some Gunda persons to the police station and

manhandled the Police Officers. He has seriously interfered with the

investigation of a crime and had removed two accused ladies from the

custody of Police along with huge quantity of Muddemal liquor seized

Cri.W.P.No.124/2008

from them. In Raju Thapar Vs. Madanlal 2013 Cri.L.J. SC, it has

been held that the powers under Section 482 of Cr.P.C. and Article

226 of Constitution should be exercised sparingly and in order to

prevent the miscarriage of justice or to prevent the abuse of process

of law. Invoking these powers is at the discretion of the Court and it

should be used in appropriate cases only. In Amit Kapoor Vs.

Ramesh Chander, (2012) 8 SCC 460, it is held :

"27.4 Where the exercise of such power is absolutely

essential to prevent patent miscarriage of justice and for

correcting some grave error that might be committed by

the subordinate courts even in such cases, the High Court

should be loath to interfere, at the threshold, to throttle the

prosecution in exercise of its inherent powers.

27.15 Coupled with any or all of the above, where the

Courts finds that it would amount to abuse of process of

the Code or that the interest of justice favours, otherwise it

may quash the charge. The power is to be exercised ex

debito justitiae i.e. to do real and substantial justice for

administration of which alone, the courts exist."

14. In Varala Bharath Kumar and anr., Vs. State of Telangana and anr., 2017 SAR (Cri) 975, it is held :

7. It is by now well settled that the extraordinary

power under Article 226 or inherent power under

Section 482 of the Code of Criminal Procedure can

Cri.W.P.No.124/2008

be exercised by the High Court, either to prevent

abuse of process of the court or otherwise to secure

the ends of justice.

15. We find that the petitioner did not wait to get a decision on

merits in respect of the allegations made against him and had rushed

to this Court immediately after he was released on bail. Since the

cases were of 2007 or earlier to that, those must have been disposed

of. He has not produced copies of judgments to show that the

prosecution initiated against him was false and he was acquitted.

16. We find that the preventive action against the petitioner was

essential. The facts of the case and initiation of such action was

neither miscarriage of justice nor abuse of the process of the Court.

However, such power should have been exercised by the Special

Executive Magistrate in strict compliance of the provisions of law. The

precedents laid down by the High Courts and Supreme Court in the

matter should have been followed. If the Special Executive

Magistrates do not follow the provisions of law as explained in the

various rulings, the State as well as the concerned Officers can be

personally held liable for payment of compensation. With these

observations, we record that our judicial conscience does not

persuade us to exercise the inherent powers under Article 226 or

Section 482 of Cr.P.C. Those can be exercised ex debito justitiae.

17. We find that this is not a fit case to invoke our powers under

Article 226 of Constitution or under Section 482 of Cr.P.C.

Cri.W.P.No.124/2008

18. With the above observations, in the facts and circumstances, we

decline to invoke our powers and hence, the petition is dismissed.

       ( A.M. DHAVALE, J.)              ( T.V. NALAWADE, J.)


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