Bombay High Court

Sachin S/O Shantaram Sonwane vs The State Of Maharashtra & Ors on 22 November, 2017

Bench: S.S. Shinde

                                 1             Cri.W.P.198-15. Jud.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


             CRIMINAL  WRIT PETITION
                                      NO.
                                         198
                                             OF 201
                                                   5
                                                     



     Sachin Shantaram Sonwane,
     Age : 33 years, Occu. Business, 
     R/o B-10, Mithul Enclave, CHS Ltd.
     Mahul, Chembur, Mumbai-74.                 ...  Petitioner

                      Versus

     1.      The State of Maharashtra, 
             Through the Secretary,
             Home Department, 
             Mantralaya, Mumbai-32.

     2.      The Superintendent of Police, 
             Ahmednagar, Dist. Ahmednagar.

     3.      B.B.Shinde
             The Police Inspector,
             Kopargaon Police Station,
             Kopargaon, Dist. Ahmednagar.

     4.      Pramod S/o Bhausaheb Labde,
             Age Major, Occu: Politician, 
             R/o Mahegaon (Deshmukh)
             Tq. Kopargaon, Dist. Ahmednagar.

     5.      Pallavi S/o Sachin Sonwane, 
             Age 32 years, Occu: Household,
             R/o Sanvi Bunglow, Garima Nagar, 
             Kopargaon, Tq. Kopargaon,
             Dist. Ahmednagar.              ...  Respondents




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                                             2                 Cri.W.P.198-15. Jud.odt

                                  ...
     Mr.  V.D.Sapkal h/f  Mr.  Yuvraj S. Choudhari,  Advocate 
     for Petitioner
     Mr. M.M.Nerlikar, APP for Respondent Nos.1 & 2 - State
     Mr.  Balaji   Shinde   h/f  Mr.   V.P.Latange,  Advocate   for 
     Respondent No.3
     Respondent No.4 served
     Mr.   S.G.Gorde  Patil,  Advocate   for   Respondent   No.5 
     (Absent) 
                                  ...

                                CORAM :  S.S.SHINDE AND
                                         MANGESH S. PATIL, JJ.

RESERVED ON : 08th November, 2017 PRONOUCED ON : 22nd November, 2017

JUDGMENT : (Per Mangesh S. Patil, J.) :-

Rule. The Rule is made returnable forthwith.

With the consent of both the sides the matter is heard

finally.

2. The Writ Petition is filed under Article 226 of the

Constitution of India with following prayers :

"C. This Hon'ble Court by issuing writ of mandamus or any other appropriate writ, order or directions in the like nature of writ, the respondent No.1 and 2 may kindly be directed to initiate the Departmental Enquiry against the respondent No.3 also to initiate criminal proceedings against the respondent No.4 in view of the N.C. Complaint No.307/2014 filed by the petitioner before Police Station, Kopargaon.

3 Cri.W.P.198-15. Jud.odt

D. The contempt proceedings may kindly be initiated against the respondent No.3 in view of the failure to comply the directions issued by the Hon'ble Supreme Court in the matter of Arnesh Kumar Vs. State of Bihar and others and be punished under the provisions of Contempt of Courts Act.

D. The respondent No.3 may kindly be directed to pay compensation of Rs.10,00,000/- to the petitioner for illegally detaining the petitioner for more than 33 hours."

3. According to the petitioner, Respondent No.3

illegally detained him for 33 hours in connection with

FIR No.223 of 2014 registered with Kopargaon Police

Station. According to the Petitioner, his marriage with

Respondent No.5 was solemnized on 27.12.2010. After

the marriage, the couple started residing at their

matrimonial house at Chembur, Mumbai, while his

parents were residing at their native village Chas,

Taluka Sinner, District Nashik. In the year 2012, he had

lent an amount of Rs.5,80,000/- to the brother of

Respondent No.5 for purchasing a car. When he started

demanding the amount back, Respondent No.5 began

quarreling with him and started residing at her parental

house. She then, lodged FIR No.223 of 2014 at

Kopargaon Police Station and an offence under Sections

4 Cri.W.P.198-15. Jud.odt

498-A, 406, 323, 504, 506 read with Section 34 was

registered against him and his parents.

4. According to the petitioner, on 11.09.2014

Respondent No.3 who was then attached to the

Kopargaon Police Station sent a police party to the

house of petitioner at Chembur, at 6.00 a.m. He was

taken to the R.C.F. Police Station, Chembur and then he

was taken to Kopargaon Police Station by 1.00 p.m. of

the same day and was put in the custody. However,

instead of producing him before the Magistrate as per

the mandate of the law he was illegally detained for

more than 33 hours and was produced before the

Magistrate on 12.09.2014, at 3.00 p.m. Thus, according

to the petitioner, he was illegally detained by

Respondent No.3 in violation of Article 21 and 22 of the

Constitution of India and hence he has made the above

mentioned prayers.

5. Respondent Nos.2 and 3 have filed separate

affidavits-in-reply which are similar. Respondent No.3

5 Cri.W.P.198-15. Jud.odt

was Police Inspector posted in Kopargaon Police Station

and also the Inquiry Officer has submitted his affidavit-

in-reply. They have admitted registration of the FIR and

that Respondent No.3 was investigating the crime. They

have stated that Respondent No.3 had obtained

permission of the Superintendent of Police, Ahmednagar

for investigating the matter. After such permission was

obtained one Mr. Sudhir Patil, PSI went to Mumbai in

search of the petitioner. On 11.09.2014, at about 6.35

a.m. an entry was made in the Police Station Diary at

R.C.F. Police Station Chembur, Mumbai and Mr. Sudhir

Patil along with two police constables took the petitioner

in custody at about 8.15 a.m. on the same day i.e. on

11.09.2014 and even an entry to that effect was also

made in the police diary Exh.R-2. Then Mr. Sudhir Patil

proceeded to Kopargaopn with the petitioner and

reached at Police Station Kopargaon at 15.15 hours of

the same day. The petitioner was formally arrested at

15.45 hours by Respondent No.3 who was investigating

the offence. It has been specifically mentioned that

Respondent No.3 had followed the procedure as

6 Cri.W.P.198-15. Jud.odt

contemplated by the Supreme Court in the case of

Arnesh Kumar Vs. State of Bihar and another

[(2014) 8 SCC 273]. He executed the check list under

Section 41 of Cr.P.C. by following the procedure under

Section 50 thereof. The petitioner was then taken to

jail. On the next day, i.e. on 12.09.2014, at about 10.20

a.m. he was brought to the Police Station for

interrogation. He was lateron produced before the

Judicial Magistrate First Class, Kopargaon at about

15.00 hours. Thus, according to him, right procedure

was followed in producing the petitioner before the

Magistrate within the statutory period.

6. We have heard the learned Advocate for the

petitioner, the learned APP for the State and learned

Advocate for Respondent Nos.3. We have also carefully

gone through the entire papers.

7. According to the advocate for the petitioner, under

the directions of Respondent No.3 who was the

Investigating Officer the petitioner was made to move

7 Cri.W.P.198-15. Jud.odt

out of his house at 6.00 or 6.45 a.m. of 11.09.2014. He

was taken from Chembur to Kopargaon Police Station

on the same day but he was formally arrested at 15.45

hours and was produced before the Magistrate at 3.00

p.m. of 12.09.2014. Thus according to the learned

advocate, even going by the affidavit-in-reply filed on

behalf of Respondent No.2, he was produced before the

Magistrate after 33 hours from the time he was taken

out of his house which is clearly a violation of Article 21

and 22 of the Constitution of India, in breach of the

fundamental right guaranteed to a citizen by a

Constitution. The learned Advocate also placed reliance

on the decision in the case of D.K.Basu Vs. State of

West Bengal [(1997) 1 SCC 416], Directorate of

Enforcement Vs. Deepak Mahajan and another [AIR

1994 SC 1775] and obviously the decision in the case of

Arnesh Kumar Vs. State of Bihar and another

[(2014) 8 SCC 273]. The learned Advocate also cited the

decisions of various Division Benches of this Court in

the case of Niraj Ramesh Jariwala and others Vs.

8 Cri.W.P.198-15. Jud.odt

Mahadeo Pandurang Nikam and others [2013 ALL

MR (CRI) 1], The State of Maharashtra Vs. Shri.

Sagar Balu Ubhe [2014 ALL MR (Cri) 1010] and

Satish Vasant Salavi Vs. The State of Maharashtra

and others [2015 ALL MR (Cri) 3388].

8. Per contra, the learned APP and also the learned

Advocate for Respondent No.3 submitted that all the

procedure as per the directions in the case of D.K.Basu

and Arnesh Kumar (supra) was duly followed and there

was no violation of Article 21 and 22 of the Constitution

of India. The learned APP and the learned Advocate also

submitted that the petitioner was for the first time

arrested at 15.45 hours of 11.09.2914 and was produced

before the Judicial Magistrate First Class, Kopargaon

within 24 hours. Merely the police approached him at

his house at Chembur on 11.09.2014 and at their

request he voluntarily moved with them to Kopargaon

Police Station. There was no compulsion and the act

was voluntary. No force was used and his right to move

freely was also not curtailed at any moment. Therefore,

9 Cri.W.P.198-15. Jud.odt

it cannot be said that his life and personal liberty was

curtailed right from the moment he was approached at

his house on 11.09.2015 between 6.00 to 7.00 a.m. The

learned Advocate also endeavoured to point out that

there was no breach of any law or directions given by

the Supreme Court in the case of D.K.Basu and Arnesh

Kumar (supra).

9. At the outset, it is necessary to observe that in

fact, there is no dispute about the facts detailed herein

above. To repeat, the police from Kopargaon Police

Station approached the petitioner at his house in

Chembur, Mumbai on 11.09.2014, at about 6.30 a.m. He

was made to accompany them and was brought to

Kopargaon Police Station on the same day at about

15.00 hours. He was formally shown to have been

arrested at 15.45 hours on the same day i.e. 11.09.2014

and that he was produced before the Magistrate on

12.09.2014 at about 15.00 hours. The only dispute that

has been raised on behalf of the Respondents is that

though the petitioner was brought to Kopargaon, the

10 Cri.W.P.198-15. Jud.odt

police had not arrested him and he had accompanied

them to Kopargaon voluntarily. Therefore, during the

period from 6.30 a.m. of 11.09.2014 till the time he was

arrested at 15.45 hours, his life and personal liberty

was not restricted. It is therefore necessary to ascertain

as to whether it can be said that the petitioner was

really arrested at about 6.30 a.m. of 11.09.2014. It is

only if we reach such a conclusion that we would be

able to record a finding that he having been produced

before the Magistrate at 15.00 hours of the next day, his

total detention would exceed 24 hours in violation of

Article 22(2) of the Constitution of India.

10. The statements in the affidavit-in-reply filed on

behalf of Respondent No.2 and the one filed by

Respondent no.3 apparently take a usual stand in

consonance with the submissions of their learned

advocates saying that when the petitioner was not

arrested on 6.30 a.m. on 11.09.2014, it cannot be said

that there was any delay in producing him before the

Magistrate. However, a careful reading of the police

11 Cri.W.P.198-15. Jud.odt

papers annexed to the affidavit-in-reply filed on behalf of

Respondent No.2 would make it abundantly clear that

in fact the police party was sent to Chembur with the

sole object of arresting the petitioner and his father. On

07.09.2014 Respondent No.3 addressed a letter to

Respondent no.2 and had sought permission to send

the police party to Chembur for effecting the arrest. The

wireless message record at page 59 of the Annexures

further shows that the permission granted by

Respondent No.2 was communicated to Respondent

No.3. It is thus apparent that right from inception the

whole purpose of sending the police party to Chembur

was to arrest the petitioner and even Respondent No.2

who is Superintendent of Police, Ahmednagar must be

presumed to have accorded the permission for it at the

request of Respondent No.3. If such is the state of

affairs, the stand taken in the affidavits-in-reply and the

submissions of the learned APP and the learned

Advocate for Respondent No.3 falls to ground.

12 Cri.W.P.198-15. Jud.odt

11. A lame attempt was made on behalf of Respondent

No.3 by producing a Call Data Record to show that the

petitioner was allowed to make and receive telephone

calls during the period he along with the police party

left his home at Chembur and arrived at the Kopargaon

Police Station. In our considered view, this circumstance

would at the most demonstrate that the police party had

done some favour to the petitioner in allowing him to

make calls. However, that will not militate against the

actual removing of the petitioner from his house and

taking him to Kopargaon without formally showing that

he was arrested. This is apparently a convenient excuse

resorted to by the concerned police to come out of the

rigours of the law. If really the police were bona fide in

following the due process of law, they could have easily

formally arrested the petitioner immediately at about

6.30 a.m. of 11.09.2014 and could have produced him

before the nearest Magistrate and thereby could have

been able to get sanction of law for the period of transit.

However, having not resorted to this procedure, they

have clearly breached the mandate of clause 2 of Article

13 Cri.W.P.198-15. Jud.odt

22 and have also violated the right of the petitioner to

life and liberty guaranteed under Article 21 of the

Constitution of India. It is indeed a blatant violation of

fundamental right of the petitioner shocks our

conscience.

12. Suffice for the purpose to observe that this case is

indeed another example which demonstrates as to how

police machinery in the State is either oblivious of the

legal position or is emboldened to breach even the

fundamental rights of the citizens. We are, making

these observations with a sense of responsibility and we

have strong reasons to say so. At least in three

successive judgments of the Division Benches of this

Court, a similar breach of fundamental rights of the

citizens have been noticed and directions granting

compensation to the petitioners and imposing costs on

the State government have been passed. The cases of

Niraj Ramesh Jariwala, Shri. Sagar Balu Ubhe and

Satish Vasant Salavi (supra) are those three instances

where this Court has come across similar violations of

14 Cri.W.P.198-15. Jud.odt

the rights of citizens guaranteed under Article 21 and

22 of the Constitution of India. Inspite of such repeated

orders, we do not see any discernible change in the

mind set of police machinery or for that matter the State

Government. We have not been shown that any steps

have been taken either by the State Government or the

higher officials of the Police Department in setting their

home in order. We do not propose to comment any

further. We are satisfied that there is a blatant violation

of fundamental rights of the petitioner guaranteed

under Article 21 and 22 of the Constitution of India.

Equally, there has been a breach of the directions of the

Supreme Court in the case of D.K.Basu (supra) and we

propose to proceed to address the request of the

petitioner to pay compensation.

13. Obviously, there are no strict parameters, however,

considering the fact that the petitioner was produced

before the learned Magistrate at Kopargaon after about

32 hours and 30 minutes, in our view as a solace the

petitioner is entitled to receive an amount of

15 Cri.W.P.198-15. Jud.odt

Rs.50,000/- by way of compensation. In addition we

also deem it appropriate to direct the State

Government / Respondent No.1 to pay Rs.10,000/- to

the petitioner as a cost of this petition.

14. As is mentioned above Respondent No.3 has

obtained permission of Respondent No.2 while sending

the police party to Chembur for arresting the petitioner.

Therefore, it would be in the fitness of things to direct

Respondent No.1 / the State Government and

Respondent No.2 / the Superintendent of Police,

Ahmednagar to first deposit / pay the compensation and

costs to the petitioner and then take suitable steps to

recover the amount of compensation from Respondent

No.3 personally. Independently, even they can proceed

against Respondent No.3 for a disciplinary action.

Hence, we pass the following order.


                                 ORDER


     (1)     The petition is allowed.





                                       16             Cri.W.P.198-15. Jud.odt

     (a)     We hold that the detention of the petitioner at the

instance of Respondent No.3 from 6.30 hours of

11.09.2014 to 15.00 hours of 12.09.2014 is illegal

and in violation of his fundamental rights

guaranteed under Article 21 and 22 of the

Constitution of India.

(b) We direct Respondent No.1 / State of Maharashtra

to pay compensation of Rs.50,000/- to the

petitioner together with interest @ 8 % per annum

from the date of filing of this petition i.e.

13.02.2015 till realization of the entire amount of

compensation together with interest. This amount

shall be paid to him within four weeks from today.