Chandrashekhar S/O. Madhukar ... vs The State Of Maharashtra And Anr
2022 Latest Caselaw 9699 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


               CRIMINAL WRIT PETITION NO.1720 OF 2019


           1        Chandrashekhar Madhukar Gurav,
                    Age 47 yrs., Occ. Agri.,

           2        Vivek Madhukar Gurav,
                    Age 42 yrs., Occ. Agri.,

           3        Santosh Madhukar Gurav,
                    Age 54 yrs., Occ. Agri.,

           4        Sharad Madhukar Gurav,
                    Age 62 yrs., Occ. Agri.,

           5        Vaishali w/o Sharad Gurav,
                    Age 60 yrs., Occ. Household,

           6        Meena w/o Santosh Gurav,
                    Age 38 yrs., Occ. Household,

           7        Pranali w/o Vivek Gurav,
                    Age 30 yrs., Occ. Household,

           8        Tukaram Sharad Gurav,
                    Age 27 yrs., Occ. Agri.,

                    All are r/o Hinglajwadi,
                    Tq. & Dist. Osmanabad.

                                                             ... Petitioners

                                  ... Versus ...

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




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               2        The Police Inspector,
                        Dhoki Police Station,
                        Tq. & Dist. Osmanabad.

               3        Shailesh S. Katte,
                        A.S.I., Police Station,
                        Osmanabad (Rural),
                        Tq. & Dist. Osmanabad.

                                                               ... Respondents
                                          ...
                     Mr. S.C. Swami, Advocate for the petitioners
                    Mr. B.V. Virdhe, APP for respondent Nos.1 to 3
                                          ...

                                    CORAM :       SMT. VIBHA KANKANWADI AND
                                                  RAJESH S. PATIL, JJ.

                                    RESERVED ON :         29th JULY, 2022
                                    PRONOUNCED ON : 23rd SEPTEMBER, 2022


JUDGMENT :              (PER : SMT. VIBHA KANKANWADI, J.)


1              Rule. Rule made returnable forthwith. Heard learned Advocates

for the parties finally, by consent.


2              The petition has been filed invoking constitutional powers of this

Court under Article 226 of the Constitution of India for giving direction to the

respondent No.1 to initiate appropriate action against those police officers

who had illegally misused their powers and for the compensation to the

petitioners towards the harassment at the hands of those police officers to the

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tune of Rs.10,00,000/-.

3 Heard learned Advocate Mr. S.C. Swami for the petitioners and

learned APP Mr. B.V. Virdhe for respondent Nos.1 to 3.

4 The factual matrix leading to the petition are that First

Information Report vide Crime No.286/2018 came to be registered with

Dhoki Police Station, Tq. & Dist. Osmanabad, for the offence punishable

under Section 143, 147, 148, 149, 504, 506 of the Indian Penal Code on

12.12.2018 at about 3.45 a.m. It was in respect of an incident that had

allegedly taken place at about 19.25 hours on 11.12.2018. It was lodged by

one Vyankat Limbraj Wakure. It also appears that at the behest of the

petitioner No.6 offence was also registered vide Crime No.285/2018 with the

same Police Station i.e. Dhoki Police Station at about 2.27 a.m. on

12.12.2018 under Section 354, 354-A, 324, 323, 504, 506 read with Section

34 of the Indian Penal Code in respect of incident dated 11.12.2018 at about

19.00 to 19.30 hours, which is against different persons than those referred

in Crime No.286/2018. According to the petitioners, no immediate action

was taken against those accused persons who were arrayed in Crime

No.285/2018. However, the petitioners came to be arrested at about 7.02

a.m. on 12.12.2018 and inspite of the fact that there were three lady accused

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no Lady Police Constable or officer was present. The petitioners were

produced before learned Magistrate on 13.12.2018 at about 3.30 p.m. which

is beyond the period of 24 hours permitted by the Constitution of India and,

therefore, their detention was illegal, which was more than 24 hours. As the

constitutional rights of the petitioners have been violated, the petitioners are

seeking the above said reliefs.

5 Learned Advocate for the petitioners has taken us through the

remand report which is styled as "MCR Yadi" dated 13.12.2018, in which the

date and time of arrest has been stated as 12.12.2018 and time 07.08 hours.

He has also stated that, in fact, there were absolutely no proper grounds for

the arrest of the petitioners; yet, those grounds of arrest were not properly

considered and by interpolation the arrest has been shown as that of 17.18

hours of 12.12.2018. Even the petitioners had tried to take CCTV footage of

the Police Station, but it has been informed that the back up of the said CCTV

is of 10 days only and since the application that was given on behalf of the

petitioners was beyond the said period of 10 days it cannot be supplied. No

Lady Police Officer was with the lady accused and, therefore, there is clear

violation of the constitutional rights.

6              Learned Advocate appearing for the petitioners has relied on the





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decision in Kisan Rupa Pawar and another vs. The State of Maharashtra and

others, Criminal Writ Petition No.955 of 2019 decided by this Court on

05.11.2019, wherein after holding that the petitioners therein were illegally

put in police lock up for more than four hours compensation of Rs.10,000/-

was granted to petitioner No.1 and Rs.15,000/- to the petitioner No.2.

7 Learned APP has relied on the affidavit-in-reply filed by

Shrishailya Siddhappa Katte working as Assistant Sub Inspector with

Osmanabad Rural Police Station. He has stated that it was due to

inadvertence. The time of arrest has been stated in the MCR report as 07.02

hours but actual time is 17.18 hours. He has produced on record the copies

of arrest panchnamas to support his contention. From 17.18 hours on

12.12.2018 till 3.30 p.m. of 13.12.2018 it would be within 24 hours of arrest

the accused persons were produced before the concerned Magistrate. It is

stated that all the guidelines of arrest have been followed. The fact of arrest

was informed to the near relatives of the accused. The reasons for arrest

were separately given before the Magistrate, and at the time of the arrest of

the lady accused persons Lady Police Constable was not present. By way of

additional affidavit it has been stated that since the dispute/quarrel between

two rival groups had taken place by forming unlawful assembly, if arrest

would not have been made, then, it could have created law and order

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situation and, therefore, the arrest was made.

8 Learned APP has taken us through the arrest form/panchnama,

the station diary entry, register of arrest and certain general diary details.

When the learned Judicial Magistrate First Class, Osmanabad had endorsed

on the ground of arrest that they are justified, then, the petitioners cannot re-

agitate. Petitioners had every opportunity to place their grievances before the

concerned Magistrate. However, from the remand report order it can be seen

that they had not made any complaint of ill-treatment. Now, it appears that

with some ulterior motive the present petition has been filed. Learned APP

also pointed out that now the State Police Complaint Authority has been

established and the petitioners can approach that authority to file any

complaint. Reliance has been placed on the order passed by the Division

Bench at Principal Seat in Bommer Limbadri Vithal vs. The State of

Maharashtra and others, Criminal Writ Petition No.4214 of 2014 dated

20.04.2017, wherein a statement was made by learned Advocate General

that the Divisional Police Complaint Authorities are concerned, the

Chairpersons are appointed in all six Divisions and then, at that time, at some

places it was yet to function, but, now, at all the places the said authority is

functional. In that case liberty was granted to the petitioner to approach the

State Police Complaint Authority.

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9              It is apparent from the record that has been produced that there

were cross complaints. One Meena Santosh Gurav, who is present petitioner

No.6, had lodged First Information Report vide Crime No.285/2018 with the

same Police Station i.e. Police Station, Dhoki, Dist. Osmanabad at about 2.27

a.m. on 12.12.2018, for the offence punishable under Sections 354, 354-A,

324, 323, 504, 506 read with Section 34 of the Indian Penal Code, 1860 in

respect of the incident that had allegedly taken place at about 19.00 to 19.30

hours on 11.12.2018 at village Hinglajwadi and thereafter at about 3.45 a.m.

Crime bearing No.286/2018 came to be lodged against the present

petitioners on the basis of First Information Report lodged by Vyankat

Limbraj Wakure, for the offence punishable under Sections 143, 147, 148,

149, 504, 506 of the Indian Penal Code, 1860. It appears from documents

which have been produced along with the petition that the time of arrest of

the petitioners has been shown as 7.02 a.m. on 12.12.2018 and it is stated

that they were produced before the concerned Judicial Magistrate First Class

at 3.30 p.m. on 13.12.2018 and on the basis of these documents the

petitioners are contending that their production before the learned

Magistrate was beyond the period of 24 hours. In the affidavit-in-reply filed

by Assistant Sub Inspector Mr. Shrishail Sidhanappa Katte of the said Police

Station, he has explained that it was the typographical mistake remained to

be corrected that one of the papers, which showed that the arrest was at 7.02

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a.m. He has produced on record the case diary, arrest forms and other

documents to show that, in fact, the petitioners were arrested at 17.18 hours

on 12.12.2018. Interesting point to be noted is that the documents, which

are along with the charge sheet including the documents about production of

the petitioners before the Magistrate i.e. the remand report, are clearly

stating that they were arrested at 17.18 hours. No doubt, some of the papers

do carry blank spaces and those papers have been produced by the

petitioners. A separate application giving reasons for arrest of the petitioners

was produced before the learned Magistrate and those reasons have been

accepted by learned Magistrate as genuine reasons. The order that has been

passed is, "Grounds of arrest are justified. Hence granted." and the said

application has been granted on the same day i.e. on 13.12.2018, at the time

of remand. Interestingly, when the petitioners were produced before learned

Magistrate, it appears that they were represented by Advocate, but they have

not made any complaint in respect of their arrest before the learned

Magistrate. It was the first opportunity available to them to bring all those

facts on record. It appears that now taking advantage of some of the

typographical mistakes, the present petition has been filed.

10 Further, as regards the allegation that arrest was not necessary

and the guidelines given in Arnesh Kumar vs. State of Bihar, 2014(8) SCC

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273 have not been followed; as aforesaid, the learned Magistrate had applied

his mind and found that the grounds those were given by the Investigating

Officer/arresting Police Officer as correct or justified and when no dispute

was raised or complaint was made, now, it cannot lie in the mouth of the

petitioners that their arrest is illegal. The illegality of the arrest has to be

raised at the earliest opportunity.

11 The third ground on which the compensation has been prayed is

that, taking into consideration the lady accused there should have been a

Lady Police Constable to effect the arrest or at the time of effecting arrest.

Again, at the cost of repetition, no such complaint was made before the

learned Magistrate. Further, the record has been produced along with the

affidavit-in-reply to show that the Lady Police Officer was accompanying the

squad, at the relevant time. Therefore, there is no substance in this point

also.

12 The facts of the case in Kisan Rupa Pawar (supra) were different

and this Court had come to the conclusion that the legal provisions have not

been adhered to and, therefore, the compensation was granted. However, for

the aforesaid reasons in respect of the facts of this case it will have to be

observed that there were no such grounds which could have been taken into

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consideration by this Court. So also, though the opportunity was available to

the petitioners to raise those points before the learned Magistrate, they have

not raised it. The order passed by the learned Magistrate holding that the

grounds of arrest are justified have not been challenged within time, much

less reasonable time and, therefore, there is no question of exercise of the

constitutional powers of this Court as prayed. There is no merit in the

present petition. It deserves to be dismissed. Accordingly, it is dismissed.

Rule stands discharged.

( Rajesh S. Patil, J. )                    ( Smt. Vibha Kankanwadi, J. )




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