Bombay High Court
Bibhishan Rajaram Kale vs The State Of Maharashtra And Ors on 15 September, 2017
Bench: T.V. Nalawade
1 Cr WP 44 of 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.44 of 2009
* Bibhishan s/o Rajaram Kale,
Age 38 years,
Occupation : Agriculture,
R/o Andora, Taluka Kallam,
District Osmanabad. .. Petitioner.
Versus
1) The State of Maharashtra,
Through Secretary,
Home Department,
Mantralaya, Mumbai.
2) The District Superintendent of Police,
Osmanabad, District Osmanabad.
3) Mallikarjun B. Surwase,
Age 54 years,
Occupation: Service,
as Police Inspector,
Police Station Kallam,
Taluka Kallam, Dist Osmanabad.
4) B.R. Tambare,
Age 52 years,
Occupation: Service as
Police Sub Inspector,
Police Station Kallam,
Taluka Kallam,
District Osmanabad. .. Respondents.
----
Shri. Suhash B. Ghute, Advocate, for petitioner.
Shri. S.D. Ghayal, Additional Public Prosecutor, for
respondents.
----
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2 Cr WP 44 of 2009
Coram: T.V. NALAWADE &
S.M. GAVHANE, JJ.
Date : 15 SEPTEMBER 2017
JUDGMENT (Per T.V. Nalawade, J):
1) The petition is filed for relief of compensation
on the ground of illegal arrest and detention of the
present petitioner. Both the side are heard.
2) In CR No.63/2008, registered in Kallam Police
Station for offences punishable under sections 302, 201,
149 of the Indian Penal Code present petitioner was
shown as one of the accused. Application for anticipatory
bail filed by the petitioner in Sessions Court was rejected.
He then filed Criminal Application No.2484/2008 for relief
of anticipatory bail in this Court. On 30-7-2008 this Court
granted interim relief in favour of the petitioner and the
matter was made to stand over to 13 August 2008.
3) It is the case of the petitioner that the aforesaid
interim order was made at 11.45 a.m. and in ordinary
course and even as per the oral directions given by this
3 Cr WP 44 of 2009
Court, learned Additional Public Prosecutor was expected
to communicate the interim order to the concerned police
station. It is his contention that the learned Additional
Public Prosecutor Shri. Borade had informed about the
order at 12.05 p.m. to the concerned police station on
telephone. It is contended that the investigating officer,
respondent No.3, and his assistant respondent No.4
ignored the order made by this Court and arrested him at
2.30 p.m. in the aforesaid crime. It is contended that he
was produced before the Judicial Magistrate and he was
committed to custody till 2-8-2008. It is contended that
on 31-7-2008 itself learned counsel for the petitioner had
collected the order made by this Court and the Advocate
had approached the concerned police station with the
order but the police turned blind eye towards the order
and no further steps were taken. It is contended that after
showing the order when request was made to the
investigating officer to release the petitioner on bail, he
was not released on bail. It is contended that due to this
conduct of the respondents, he remained in custody till 9-
9-2008. It appears that anticipatory bail application filed
in this Court came to be disposed of due to the arrest.
4 Cr WP 44 of 2009
Sessions Court granted bail to the petitioner on 9-9-2008.
By making aforesaid contentions the petitioner has
claimed compensation of Rs.10 lakh and he has prayed for
giving direction to State to take departmental action
against the two police officers.
4) The State has opposed the proceeding by filing
reply affidavit. It is the contention of the respondents that
on 30-8-2008 early in the morning action was taken by the
police officer to make arrests of absconding accused in
that case and after making entry in the station diary they
had left for the village. It is contended that after
completing the action the petitioner was taken in custody
in the village at 10.30 a.m. on 30-7-2008. It is contended
that the memorandum of panchanama of arrest was made
at 14.30 p.m. but prior to that the petitioner was taken in
custody and the arrest was effected and then he was
produced before the JMFC for getting police custody
remand. It is contended that the order made by this court
was received on 1-8-2008 and so no effect could have
been given to the order. In the reply, the background of
the petitioner is mentioned by saying that against him as
5 Cr WP 44 of 2009
many as 8 crimes were registered against him which
were for offences punishable under sections 380, 379,
353, 457 etc. of the Indian Penal Code.
5) Copy of station dairy dated 30-7-2008 made at
6.05 a.m. shows that a team of police officers had left for
the village for effecting raid. Copy of arrest panchanama
produced shows that the petitioner was taken in custody
but the memorandum was prepared in the police station
at 2.30 p.m. of 30-7-2008. After preparing memorandum,
entry of arrest was made in the station diary. Further
unconditional apology is tendered by the officers by
contending that if they have committed mistake then they
be forgiven for the same.
6) Provision of section 46 of the Cr.P.C. shows the
manner in which the arrest can be made. Other provisions
are with regard to preparation of the record of arrest. As
there is record of aforesaid nature showing that police
party had gone to the village of the petitioner to effect the
arrest in the morning and they had taken the petitioner in
custody in the village, this Court holds that the arrest was
6 Cr WP 44 of 2009
made prior to making of the order of interim nature by
this Court. Thus, the arrest or detention cannot be called
as illegal in the present matter. In view of these
circumstances no relief can be given to the petitioner. In
the result, the petition stands dismissed. Rule is
discharged.
Sd/- Sd/-
(S.M. GAVHANE, J.) (T.V. NALAWADE, J.)
rsl
