Dilip Kisan Wadkar (C-4569) vs The State Of Maharashtra
2017 Latest Caselaw 8097 Bom

                                                    903.2017 Cri.WP.odt
                                    1



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.903 OF 2017 

          Dilip s/o.Kisan Wadkar,  
          [Convict No.4569], 
          R/o.Open District Prison, Paithan, 
          Dist. Aurangabad.                  PETITIONER

                     VERSUS

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

          2]       The Superintendent of Jail, 
                   Central Prison, Solapur, 
                   Dist. Solapur.  

          3]       Deputy Inspector General, 
                   Central Prison, Solapur, 
                   Dist. Solapur.               RESPONDENTS

                                 ...
          Mr.B.M.Dhanure   [Appointed],   Advocate   for   the 
          petitioner 
          Mr.M.M.Nerlikar,   APP   for   the   Respondent/ 
          State
                                 ...

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

Reserved on : 04.10.2017 Pronounced on : 12.10.2017

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JUDGMENT: (Per S.S.Shinde, J.):

1] This Petition under Article 226 of

the Constitution of India is filed by the

convict undergoing life imprisonment for the

offence punishable under Section 302 of the

Indian Penal Code in the Open District

Prison, Paithan, District Aurangabad, taking

exception to the impugned judicial appraisal

order dated 24th May, 2010, passed by the

District Judge-I, Kolhapur.

2] Learned counsel appearing for the

petitioner submits that the petitioner was

released on parole for 30 days for the period

from 14th February, 2009 to 15th March, 2009.

He was supposed to surrender on due date i.e.

on 16th March, 2009, however, he surrendered

on 11th June, 2009.

It is submitted that when he was

released on parole, respondent implicated him

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in a false case, and he was arrested in crime

No.11/2009 for the offence punishable under

Section 394 r/w.34 of the Indian Penal Code,

registered with Devrukh Police Station,

District Ratnagiri. It is further submitted

that the petitioner was falsely implicated

and his arrest was illegal. When he was in

the custody in the afore-mentioned crime

registered with Devrukh Police Station,

District Ratnagiri, he was assaulted by the

police personnel, and due to the said

atrocities by the police, he was required to

be treated in the Civil Hospital at Ratnagiri

for 15-16 days, and thereafter, he was taken

to the Sayan Hospital at Mumbai wherein he

was admitted in the Hospital till 28th May,

2009. He was discharged from the Sayan

Hospital, Mumbai, and then the Police brought

him at Ratnagiri and later on he was released

on bail. He suo motu appeared before the Jail

Administration on 11th June, 2009, and

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submitted medical reports and papers of Sayan

Hospital, Mumbai, and also submitted the said

papers to the Central Prison Authority,

Kolhapur. It is submitted that since the

petitioner was arrested and treated in the

Civil Hospital at Ratnagiri and in Sayan

Hospital at Mumbai when he was in police

custody, the deduction of remission of 261

days for his overstay of 87 days by the

impugned order has caused injustice to the

petitioner. Therefore, learned counsel

appearing for the petitioner submits that the

Petition may be allowed.

3] On the other hand, learned APP

appearing for the respondent-State relying

upon the averments in the affidavit filed by

one Shri Sharad S.Shelake, Superintendent of

Central Prison, Kolhapur, on 3rd August, 2017,

and also further affidavit filed on 13th

September, 2017, submits that there is no

substance in the Petition. It is submitted

903.2017 Cri.WP.odt

that the petitioner was supposed to surrender

to the Jail Authority on 16th March, 2009, but

he surrendered himself on 11th June, 2009 i.e.

87 days late, and therefore, his remission of

261 days have been deducted as per Rules. It

is submitted that the petitioner has not

mentioned correct factual position in the

Petition as per the record maintained by the

Devrukh Police Station, Ratnagiri. Learned

APP further submits that he has received

report from the Police Inspector, Devrukh

Police Station, District Ratnagiri, by letter

dated 28th September, 2017. He submits that

the petitioner has not approached this Court

with clean hands. It is submitted that the

present petitioner filed Criminal Writ

Petition No.1085/2009 with Criminal

Application No.335/2009 [Dilip Kisan Wadkar

Vs. The State of Maharashtra] alleging

therein that he was tortured by the Police

when he was in police custody during the

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period when he was released on parole.

However, the petitioner has not disclosed in

his application about filing of the Criminal

Writ Petition No.1085 of 2009 with Criminal

Application No.335 of 2009 filed at Principal

Seat of the Bombay High Court.

4] It is submitted that the afore-

mentioned Criminal Writ Petition No.1085 of

2009 with Criminal Application No.335 of 2009

has been rejected by the Division Bench

[Coram: V.M.Kanade & P.D.Kode, JJ.] on 12th

June, 2014. Therefore, it is submitted that

on same set of facts the present Petition is

not maintainable, and same deserves to be

dismissed for suppression of filing of the

afore-mentioned Criminal Writ Petition

No.1085/2009 with Criminal Application No.

335/2009. It is submitted that when the

petitioner was on parole, on 27th February,

2009 he committed offence punishable under

Section 394 r/w. 34 of the IPC and Crime

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No.11/2009 came to be registered against him

with the Devrukh Police Station, District

Ratnagiri. The petitioner was arrested on 27th

February, 2009, and was produced before the

concerned Court on 28th February, 2009 and

thereafter time to time. It is submitted that

the Court granted police custody remand to

the petitioner till 10th March, 2009, and

thereafter on 9th March, 2009 and thereafter

on 10th March, 2009 he was released on bail.

Again the petitioner committed another

offence punishable under Sections 406, 420

and 34 of the IPC and Crime No.18/2009 came

to be registered with Devrukh Police Station,

District Ratnagiri and again he was arrested

on 10th March, 2009, and he was produced

before the Court on 11th March, 2009 and he

was released on bail on 11th March, 2009. It

is submitted that the contention of the

petitioner that he was in police custody till

28th May, 2009, is not correct. He was in the

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police custody from 27th February, 2009 to 11th

March, 2009, and thereafter, he was released

on bail on 11th March, 2009. It is submitted

that on 11th March, 2009, on his own he went

to the Civil Hospital at Ratnagiri at about

21.30 hours and he was admitted in the said

Hospital, and thereafter on 15th March, 2009

his relatives took him to the Sayan Hospital

at Mumbai on 17th March, 2009, and he was

discharged from the Hospital on 31st March,

2009. The petitioner was not admitted in the

Hospital through Police, and therefore, the

contentions of the petitioner that he was

unnecessarily arrested and Police kept him in

illegal custody, is a wrong statement made in

the Petition. Therefore, the learned APP

submits that the Petition may be dismissed.

5] We have heard learned counsel

appearing for the petitioner, and learned APP

appearing for the respondent-State at length.

With their able assistance, we have perused

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the grounds taken in the Petition, annexures

thereto, affidavits filed by Shri Sharad

S.Shelake, Superintendent of Kolhapur Central

Prison, Kolhapur, and also report submitted

by the Police Inspector, Devrukh Police

Station, District Ratnagiri, with copies of

the documents and the order passed by the

Division Bench [Coram: V.M.Kanade & P.D.Kode,

JJ.] in Criminal Writ Petition No.1085/2009

with Criminal Application No.335/2009. Upon

careful perusal of the order passed by the

Division Bench at Principal seat, it is

abundantly clear that the present petitioner

filed aforesaid Criminal Writ Petition

wherein it was alleged that he was tortured

by the Police when he was in custody and he

was detained illegally for three days and

thereafter shown to be arrested by the

Devrukh Police Station, District Ratnagiri.

It further appears that the Superintendent of

Police, Ratnagiri, was directed by the Court

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to hold an independent inquiry.

Accordingly, inquiry was conducted and report

was submitted before the Court. The said

Criminal Writ Petition was decided on 12th

June, 2014. Para 4 and 5 of the order dated

12th June, 2014, passed by the Division Bench

of this Court [Coram: V.M.Kanade & P.D.Kode,

JJ.] in Criminal Writ Petition No.1085 of

2009 with Criminal Application No.335/2009,

reads thus:

4. Petitioner in this case was convicted for the offence punishable under Section 302 of Indian Penal Code and was in jail. However, he was released on parole and while he was on parole, it is alleged that he had stolen one truck and had committed robbery and also the offence punishable under Sections 406 and 420 of Indian Penal Code is registered against him.

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5. We are of the view that since the Superintendent of Police, Ratnagiri has submitted a negative report, we do not propose to accept the version of the petitioner and therefore, the petition is dismissed.

Therefore, it is abundantly clear

that the petitioner did raise grievance in

the afore-mentioned Criminal Writ Petition

that he was tortured by the police when he

was in custody in Crime Nos.11/2009 and

18/2009 registered with Devrukh Police

Station, District Ratnagir. However, the said

contention has been negated by the Court

relying upon the report submitted by the

Superintendent of Police, Ratnagiri.

6] The order impugned in this Petition

is passed on 24th May, 2010. As already

observed, it appears that the petitioner did

raise grievance about his illegal

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detention/arrest/custody by the Devrukh

Police Station, District Ratnagiri. However,

the said contention has been negated by the

Division Bench of the High Court at Principal

Seat by order dated 12th June, 2014 in

Criminal Writ Petition No.1085 of 2009 with

Criminal Application No.335 of 2009. In that

view of the matter, it was incumbent on the

part of the petitioner to disclose all true

and correct facts about filing of the afore-

mentioned Criminal Writ Petition, and

rejection of the said Writ Petition. The

petitioner has not approached this Court with

clean hands and suppressed filing of the

afore-mentioned Criminal Writ Petition, and

the order passed in the said Writ Petition,

which goes to the root of the matter.

Therefore, on this ground alone, the Petition

is liable to be dismissed.

7] The contention of the learned

counsel appearing for the petitioner that

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before passing the impugned order the

petitioner was not heard, is also incorrect

statement. Upon careful perusal of the

contents of the order impugned in this

Petition, it is abundantly clear that the

learned District Judge-I, Kolhapur was on

regular visit to the jail. It is mentioned in

the impugned order that during said visit the

petitioner was heard, and also the

Superintendent of Central Prison, Kolhapur

was also heard. In short, the submission of

the petitioner is also recorded in the

impugned order, and thereafter, the learned

Judge has passed the impugned order. During

the course of argument, learned APP has

narrated sequence of events, which completely

demolished the case of the petitioner that he

was arrested or illegally detained and he was

taken to the Hospital by the Devrukh Police

Station, District Ratnagiri. The view taken

by the District Judge-I, Kolhapur, is in

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consonance with the record and also appears

to be lenient inasmuch as he directed to

deduct remission as 1:3, though the concerned

respondent Authority submitted proposal for

deduction of remission as 1:5.

8] In the light of the discussion

herein above, we are not inclined to exercise

our discretion in favour of the petitioner,

and also he is not entitled for equitable

relief for not approaching this Court with

clean hands, thereby suppressing filing of

the Criminal Writ Petition No.1085 of 2009

with Criminal Application No.335 of 2009 and

the order dated 12th June, 2014, passed by the

Division Bench at Principal seat at Mumbai.

Hence the Writ Petition stands rejected.

9] Since, Mr.B.M.Dhanure, the learned

counsel is appointed to prosecute the cause

of the petitioner, he would be entitled for

the fees, as per the schedule of fees

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maintained by the High Court Legal Services

Sub-Committee, Aurangabad.

            [MANGESH S.PATIL]           [S.S.SHINDE]
                 JUDGE                      JUDGE  
          DDC