Dr Prakash Kundlikrao Kothule vs State Of Mah
2017 Latest Caselaw 7812 Bom

                                       1        Cr WP 447 of 2005

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Criminal Writ Petition No. 447 of 2005


     *       Dr Prakash s/o Kundlikrao Kothule,
             Age 38 years,
             Occupation : Nil,
             R/o Wakod, Taluka Jamner,
             District Jalgaon.                  ..           Petitioner.

                      Versus

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

     2)      The Chief Executive Officer,
             Zilla Parishad, Jalgaon.

     3)      The Superintendent of Police,
             Jalgaon.

     4)      Shri. K.R. Gavale,
             Police Sub Inspector,
             Pahur Police Station, Pahur,
             Taluka Jamner,
             District Jalgaon.                         .. Respondents.

                                 ----
     Shri. A.S. Bayas, Advocate, for petitioner.

     Shri. S.D. Ghayal, Additional Public Prosecutor, for
     respondent Nos.1 to 3.
                                 ----

                               Coram:      T.V. NALAWADE &
                                           A.M. DHAVALE, JJ.

                               Date:    5 October 2017




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                                         2        Cr WP 447 of 2005

     JUDGMENT (Per T.V. Nalawade, J.):

1) The petition is filed for many reliefs but due to

subsequent developments only relief in prayer clause 34

(D) remains and it is as under. Both the sides are heard.

"(D) To direct the respondents to forthwith pay an amount of Rs.5,00,000/- to the petitioner for violation of his life and liberty on account of illegal arrest and prosecution of the petitioner, by issuing a writ of mandamus or any other appropriate writ, order or direction."

2) The petitioner was working as Medical Officer

in Pahur Primary Health Centre, District Jalgaon and he

was also in-charge of Wakod Primary Health Centre. One

Santosh Jadhav was working as Junior Assistant in Zilla

Parishad and he was in charge of the accounts of Pahur

and Wakod Primary Health Centres. Due to complaints

made by many employees of the Zilla Parishad that their

amounts which were deducted from salary for

contribution to provident fund were not credited in their

provident fund accounts inquiry was made. Even audit

was done. This amount was arrears of salary in view of

implementation of 5th Pay Commission and as per the

3 Cr WP 447 of 2005

directions of the Government the amount was to go into

the provident fund account. After noticing that the amount

was not deposited and it was misappropriated report was

given by the auditor to police station Pahur and the crime

at CR No.29/2005 came to be registered for offences

punishable under section 406, 408, 409 of the Indian

Penal Code. The report was given against Jadhav.

3) During investigation, employees like Vasant

Mahajan, Devika Choudhari, Kashinath Patil, Suresh

Chavan etc. gave statements that present petitioner had

helped Jadhav and only due to the present petitioner the

amount was collected separately of the employees and the

amount was misappropriated.

4) The papers of investigation show that a cheque

of amount of Rs.2,68,070 dated 31-7-2003 was sent by

the Chief Executive Officer of the Zilla Parishad in the

name of present petitioner who was in charge of Wakod

Primary Health Centre. This cheque was sent by the

petitioner for encashment and it was sent to District

Central Cooperative Bank. The cheque was for making the

4 Cr WP 447 of 2005

aforesaid payment. In stead of making payment in the

accounts of the employees, two demand drafts were

collected by using the cheque amount. The amount of

Rs.1,52,348/- in respect of five employees for which

separate demand draft was obtained was not deposited in

the provident fund account of 5 employees and by

withdrawing the cash, the amount was misappropriated.

5) Papers of investigation show that Jadhav's

successor could not get charge of record in respect of

aforesaid transactions from Jadhav. The record since

2000-2001 like cash book, vouchers in respect of amount

of Rs.2,68,070 were not available. Statement of Chavan,

successor of Jadhav came to be recorded. Suspicion is

expressed by the investigating officer that the relevant

record is destroyed by accused persons to destroy the

evidence.

6) The record and the statements show that even

when directions were given by the Chief Executive Officer

of the Zilla Parishad to petitioner to give report to police,

the petitioner avoided to give report against Jadhav. In

stead of giving report he requested for permission to get

5 Cr WP 447 of 2005

audit done. The aforesaid circumstances and the nature

of allegations show that for this incident, audit was not at

all necessary and everything was a matter of record. Only

explanation if at all given by Jadhav could have been

considered.

7) The auditor filed report as steps were not taken

by present petitioner. The petitioner wants to use the

circumstances that in the decision given by the trial Court

in the case which was filed in the aforesaid matter he

came to be acquitted. Due to acquittal, it is the case of the

petitioner, that he was unnecessarily arrested by police

and he was made accused when he could have been made

witness against Jadhav. It is his contention that he was

made accused mala fidely and due to the arrest and

detention he was humiliated. The learned counsel for the

petitioner placed reliance on the guidelines given by the

Apex Court in the case reported as D.K. Basu v. State of

West Bengal (1997) 1 SCC 416 . It is the case of the

petitioner that the guidelines were not followed and there

was violation of his rights given under Article 21 of the

Constitution of India.

                                           6      Cr WP 447 of 2005

     8)               The learned counsel for the petitioner placed

reliance on the observations made in other cases like AIR

1983 SC 1086 (Rudal Sah v. State of Bihar) and AIR 1986

SC 494 (Bhim Singh v. State of J. and K.) . The facts of the

two reported cases were altogether different. In the

present proceeding direction was given by this Court to

make inquiry into the allegation of mala fides and illegal

arrest. Direction was given to the District Superintendent

of Police and inquiry was made through Additional

Superintendent of Police. Report is received that action

was not mala fide and there was material against the

petitioner and as there was order of the learned Judicial

Magistrate, the detention cannot be called as illegal.

9) The papers already mentioned show that there

was allegation of misappropriation and there was

allegation against the present petitioner that he was also

involved in the offence. Due to the statements and

aforesaid circumstances he came to be arrested.

Statements of the witnesses were recorded on 5-4-2005

and 6-4-2005 and the petitioner was arrested on 22-6-

2005. The case diary is verified by superior officer of the

7 Cr WP 447 of 2005

investigating officer during inquiry. The petitioner was

produced before the Judicial Magistrate within 24 hours

of the arrest and he was released on bail on 25-6-2005. He

did not make complaint against the investigating officer

when he was produced for police custody remand before

the Magistrate. As per the record, intimation of his arrest

was given to his friend, one Dr. Lahane.

10) When the accused is produced before the

Magistrate after arrest and prayer is made for police

custody remand, the sum and substance of allegations and

material is mentioned in remand report and ordinarily,

police officer remains present with the accused to satisfy

the Magistrate on the requirement of police custody.

Grant or refusal of police custody is within the discretion

of the Judicial Magistrate. In view of provision of section

114 of the Evidence Act it needs to be presumed that

proper procedure was followed. Further, in view of the

aforesaid circumstances it cannot be said that there was

no material at all against the petitioner. The

circumstances that due to him two separate demand

drafts came to be created and list of only 7 employees

8 Cr WP 447 of 2005

which was prepared was placed before him for sending

the provident fund amount in their accounts when this

amount was of 13 employees was there. It was submitted

for the petitioner that he had recently joined the service

and Jadhav misused this circumstance and petitioner

committed the mistake. Such defence cannot be

considered as it was the stage of investigation. After all, it

is the subjective satisfaction of the investigating officer in

this regard and the court is expected to keep that in mind.

Thus it cannot be said that the arrest was illegal or the

detention of the petitioner was illegal. There is no

question of granting compensation in favour of the

petitioner. In the result, the petition stands dismissed.

Rule stands discharged.

                 Sd/-                                           Sd/-
     (A.M. DHAVALE J.)                             (T.V. NALAWADE, J.)




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