Bombay High Court
Mahadeo Rambhau Kendre And Anr vs The State Of Maharashtra And Ors on 27 September, 2017
Bench: T.V. Nalawade
Cri.W.P.No. 239/2010
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 239 OF 2010
1. Mahadeo s/o. Rambhau Kendre,
Age 60 years, Occu. Agriculture,
R/o. Dongarpimpala, Tq. Ambejogai,
Dist. Beed.
2. Satish s/o. Mahipati Kendre,
Age 33 years, Occu. Advocate,
R/o. Dongarpimpala, Tq. Ambejogai,
Dist. Beed. ....Petitioners.
Versus
1. The State of Maharashtra,
Through its Secretary Home
Department, Mantralaya, Mumbai.
2. The Superintendent of Police
Beed.
3. G.I. Bhume,
Police Inspector
Ambejogai (Rural),
Police Station, Ambejogai,
Dist. Beed. ....Respondents.
Mr. S.S. Bora, Advocate for petitioners.
Mr. S.J. Salgare, AGP for respondent Nos. 1 to 3.
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
Date : 27/09/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The petition is filed for giving direction to respondents to
produce son of petitioner No. 1 namely Shrikrishna in the Court,
Cri.W.P.No. 239/2010
relief of habeas corpus nature. The relief is also claimed to give
compensation of Rs. five lakh which can be recovered from
respondent No. 3 for illegal detention of son of petitioner No. 1.
Further, direction is also claimed for starting departmental inquiry
against respondent No. 3 for illegal actions taken against son of
petitioner No. 1. Both the sides are heard.
2) The aforesaid son of petitioner No. 1 was in service of
Government of India, in Army. On 12.2.2010 F.I.R. was registered
against the said son in Ambejogai Rural Police Station for the
offences punishable under sections 354, 452 etc. of Indian Penal
Code ('IPC' for short) at C.R. No. 13/2010. The said son applied for
anticipatory bail in Sessions Court by filing Misc. Criminal Application
No. 70/2010. On 5.3.2010 the learned Additional Sessions Judge
gave the relief of anticipatory bail.
3) It is the case of petitioners that even when there was
order of anticipatory bail made in favour of son of petitioner No. 1
dated 5.3.2010, on 7.3.2010 the said son of petitioner No. 1 was
taken in custody and he was not released on bail. It is contended
that no information was being given about the whereabouts of said
son. The petition came to be filed in this Court on 8.3.2010.
Cri.W.P.No. 239/2010
4) Submission was made that in view of subsequent
developments, the relief of only compensation remains in the matter.
The son of petitioner No. 1 is now available.
5) By by of filing reply affidavit, it is contended by
respondents that proceeding was initiated under section 110 of
Criminal Procedure Code ('Cr.P.C.' for short) against Shrikrishna, son
of petitioner No. 1 and he was released on bail as per the order
made by the Special Executive Magistrate in the Chapter proceeding.
It is denied that son of petitioner No. 1 was illegally detained by
respondents. The relevant papers are produced along with reply
affidavit.
6) The submissions made and the record show that on
12.2.2010 one lady had given report against Shrikrishna for
aforesaid offences and after giving of the relief of anticipatory bail,
some incidents took place. The submissions made show that on the
basis of report given by Shrikrishna, crime was registered against
the opposite side for offences punishable under sections 324, 149
etc. of IPC and the aforesaid lady was also made an accused in that
case. It is contended that in said C.R.No. 17/2010, the persons
shown as accused were arrested and as due to counter complaints,
there was possibility of breach of peace, action like Chapter
Cri.W.P.No. 239/2010
proceeding under section 107 of Cr.P.C. was taken against the
persons against whom C.R. No. 17/2010 was registered. It is the
contention of the respondents that Shrikrishna was admitted in
hospital for treatment, when he was required in C.R. No. 13/2010
but he absconded from there on 16.2.2010. It is contended that
then the other side made complaints that Shrikrishna was
threatening the other side and threats of life were given. Copies of
these complaints dated 18.2.2010 and 20.2.2010 are produced. It is
contended that in view of this record and conduct of Shrikrishna,
report was submitted before Executive Magistrate to start
proceeding under section 110 of Cr.P.C. and for that Shrikrishna
came to be arrested on 7.3.2010 at about 4.00 p.m. under section
41 of Cr.P.C. It is contended that the learned Executive Magistrate
made order of magistrate custody in the said report and so, there
was no illegal detention.
7) The learned counsel for petitioners submitted that when
anticipatory bail was granted to the son of petitioner No. 1 by
Sessions Court, the police ought not to have taken steps like
initiating Chapter proceeding in respect of the same incident. On this
point, the learned counsel placed reliance on some reported cases
like 2002 Bom.C.R. (Cri.) 128 [Surendra s/o. Ramchandra
Taori Vs. State of Maharashtra through its Secretary],2003
Cri.W.P.No. 239/2010
Bom.C.R. (Cri.) 1013 [Deelip Bhikaji Sonawane Vs. State of
Maharashtra and Ors.], 2002 Bom.C.R. (Cri.) 578 [Baban
Khandu Rajput Vs. State of Maharashtra & Ors.], 1998 (5)
Bom.C.R. 191 [Chandrabhan s/o. Rama Dhengle Vs. Indarbai
w/o. Chandrabhan Dhengle & Ors.] and AIR 1981 SC 674
[Gopalanachari Vs. State of Kerala]. The facts and circumstances
of each and every case are always different. This Court in the case of
Surendra cited supra had deprecated the practice of starting
Chapter proceeding and it is observed that the power vested in the
Executive Magistrate needs to be exercised with extreme caution
and strictly in accordance with the procedure laid down for
exercising the power. There cannot be dispute over the propositions
made in the case cited supra. In the present matter, there is record
of aforesaid nature against the petitioners. The record does not show
that police acted partially against Shrikrishna. The report was made
to start Chapter proceeding under section 110 (e) (g) of Cr.P.C. It
can be said that if in the opinion of the police, the opponent is
dangerous and he is likely to commit the offence which may disturb
peace, they can take step like making proposal before Executive
Magistrate. The power of the police cannot be disputed in this
regard. Then the Executive Magistrate is expected to exercise the
power given to it under the provisions of sections 107 to 124 of
Cr.P.C. The power is judicial in nature and admittedly, order was
Cri.W.P.No. 239/2010
made by Magistrate to commit the applicant to magistrate custody
when he was produced. The submissions made show that he was
released on 8.3.2010, within one day from the date of arrest. Due to
these circumstances, this Court holds that detention of the applicant
by police after his arrest under section 41 of Cr.P.C. and further
detention order of Magistarte cannot be called as illegal. There is no
question of awarding compensation for such detention. In the result,
the petition stands dismissed. Rule stands discharged.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
