Bombay High Court
Neelam Nitin Sampat vs State Of Maharashtra And Ors on 29 September, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
Digitally
signed by
SHAGUFTA
2023:BHC-AS:28590-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date:
WP-2436-2023.doc
2023.09.29
15:02:24
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2436 OF 2023
Neelam Nitin Sampat,
Adult Indian Inhabitant, residing at
Room No. 21, 458/68, 1st Floor,
JJKB Society, JSS Road, Chirabazar,
Kalbadevi, Mumbai - 400 002 ...Petitioner
Versus
1. State of Maharashtra
2. Senior Police Inspector
Tardeo Police Station
3. Priyanka Kadam,
PSI, Tardeo Police Station
4. The Commissioner of Police
Crawford Market, Mumbai
5. Deputy Commissioner of Police
Zone 3, Byculla ...Respondents
Mr. Kripashankar Pandey for the Petitioner
Ms. P. P. Shinde, A.P.P for the Respondents-State
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
RESERVED ON : 12th SEPTEMBER 2023
PRONOUNCED ON : 29th SEPTEMBER 2023
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JUDGMENT (Per Revati Mohite Dere, J.) :
1 Heard learned counsel for the parties.
2 Rule. Rule is made returnable forthwith, with the
consent of the parties and is taken up for final disposal. Learned
A.P.P waives service on behalf of the respondents-State.
3 By this petition, filed under Article 226 of the
Constitution of India, the petitioner seeks a writ of habeas
corpus, to produce her husband-Nitin Sampat before this Court
and for his release forthwith from illegal detention of the
respondents. Direction is also sought to take appropriate action
against respondent Nos. 2 and 3 for their willful breach of the
mandatory guidelines issued by the Apex Court in the cases of
Arnesh Kumar Vs. State of Bihar and Anr 1 and Satender Kumar
Antil Vs. Central Bureau of Investigation & Anr.2
1 (2014) 8 SCC 273
2 2022 live law (SC)577
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4 The petitioner is the wife of Nitin Sampat. According
to the petitioner, her husband-Nitin was illegally arrested and
detained by the respondent Nos. 2 and 3, despite the offences
with which, he was charged i.e Sections 354A and 509 of the
Indian Penal Code (`IPC'), being bailable offences, and despite
the fact, that the petitioner's husband-Nitin was ready to furnish
bail. According to the petitioner, her husband-Nitin had co-
operated with the officers during his visits to the Tardeo Police
Station and as such, had complied with the 41A notice issued to
him. It is the petitioner's case that on 17 th July 2023, her
husband-Nitin and his advocate visited the Tardeo Police Station
at 3:00 p.m; that as Nitin apprehended that he would be illegally
arrested in bailable offences and for extraneous reasons, Nitin
gave a written communication to the Senior Police Inspector,
through his advocate, conveying his intention of furnishing and
procuring bail; however, despite the same, Nitin was illegally
arrested on 17th July 2023 at 9:30 p.m, and the petitioner was
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formally intimated about the same. According to the learned
counsel for the petitioner, despite the petitioner's husband being
ready to furnish bail, he was detained by the respondent Nos. 2
and 3 illegally and the advocate who was with her husband, was
asked to produce his identity card and was threatened with
lodging of an NC and an FIR against him under the IPC, when
the advocate pointed out, that the petitioner's husband-Nitin
was illegally detained by the police in bailable offences.
5 Learned counsel for the petitioner submits that the
petitioner's husband-Nitin is a music teacher having reputation
amongst his peers and students and an unblemished record of
more than 20 years and as such, his illegal detention and torture
whilst in custody, has caused him immense trauma.
6 We have perused the papers. The petitioner, in this
petition seeks not only a writ of habeas corpus, to produce her
husband-Nitin Sampat before this Court, but also a direction to
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the respondent Nos. 4 and 5 to take appropriate action against
respondent Nos. 2 and 3 for their willful breach of the
mandatory guidelines of the Apex Court.
7 The petitioner's husband-Nitin was arraigned as an
accused in connection with an FIR, which was initially registered
by the complainant with the Malad Police Station, Mumbai,
sometime in the 2nd week of June 2023. The said FIR was
registered as 00 FIR with the Malad Police Station. It appears
that Nitin attended the said Malad Police Station on 8 to 9
occasions and thereafter, learnt that the said FIR has been
transferred to Tardeo Police Station, Mumbai and numbered as
C.R No.310/2023 for the alleged offences punishable under
Sections 354A and 509 of the IPC, both bailable offences. It is
not in dispute that the said FIR was registered with the Tardeo
Police Station on 7th July 2023. It appears that on the same day
i.e. on 7th July 2023, the Tardeo Police issued a 41A notice to
Nitin, pursuant to which, Nitin visited the said police station on
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four occasions. It appears that on 17th July 2023, Nitin and his
advocate visited the Tardeo Police Station at 3:00 p.m. As Nitin
feared that he would be illegally arrested in bailable offences and
for extraneous reasons, having regard to the demand made by
one of the officers, he gave a written communication to the
Senior Police Inspector, Tardeo Police Station, through his
advocate, conveying his intention of furnishing and procuring
bail. The said communication is at Exhibit `B' at page 13 of the
petition. It appears that Nitin's advocate personally met the
Senior Police Inspector and conveyed the aforesaid to him i.e.
their intention to furnish bail, however, despite the same, Nitin
was illegally arrested on 17th July 2023 at about 9:30 p.m.
Accordingly, a formal intimation of arrest was given to the
petitioner, post mid-night. A copy of the intimation is annexed at
Exhibit `C' at page 14 of the petition.
8 It appears that prior to Nitin's formal arrest by the
police on 17th July 2023, his advocate approached the Court of
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Metropolitan Magistrate at Girgaum, Mumbai, for obtaining a
copy of the FIR, however, they were informed that the said FIR
was yet to be filed before the learned Magistrate, as a result of
which, they were unable to procure the copy of the said FIR.
9 According to the petitioner, when the advocate tried
to impress upon the respondent No. 3 that Nitin was legally
entitled to be released on bail, the offences being bailable and the
failure to release Nitin would amount to illegal detention,
compelling them to move the High Court, one of the advocates
was asked to produce his identity card and was threatened with
lodging of an NC and even an FIR under the IPC. It is the
petitioner's case that despite cooperating with the investigation
and despite the offences being bailable and despite offering to
furnish bail in the bailable offences, the police deliberately and
malafidely detained Nitin, without any justification.
SQ Pathan 7/33
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10 In view of the illegal detention of the petitioner's
husband-Nitin on 17th July 2023 at 9:30 p.m, the petitioner
immediately approached this Court on the very next day i.e. on
18th July 2023, by filing the aforesaid petition. The matter was
mentioned on 18th July 2023 before us, at 10:30 a.m. In view of
the submission made by the learned counsel for the petitioner i.e.
of illegal detention of the petitioner's husband in bailable
offences, we granted production of the papers at 2.30 p.m, on
the same day. We had asked the learned A.P.P to take instructions
by 2:30 p.m.
11 In our detailed order dated 18 th July 2023, we have
recorded the submissions of the learned counsel for the
petitioner in paras 2 to 4. It appears that the Officers of the
Tardeo Police Station forwarded a copy of the FIR to the Court
of the Metropolitan Magistrate, on the very same day i.e. on 18th
July 2023 at 11:55 a.m, although the FIR was lodged on 7th July
2023, only after we kept the matter at 2:30 p.m, on 18 th itself.
SQ Pathan 8/33
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At 2:30 p.m, when the petition was taken up, learned A.P.P
informed us that the petitioner's husband-Nitin was released by
the officers at 11:59 a.m. The said release clearly appears to be
after the learned A.P.P was directed at 10:30 a.m, when the
matter was mentioned, to take instructions and to ask the
officers of the Tardeo Police Station to remain present at 2:30
p.m. Pursuant thereto, the officers from Tardeo Police Station
were present before us at 2:30 p.m. As the allegations made by
the petitioner were serious, impinging upon Nitin's right to
liberty and fundamental rights, we, vide order dated 18 th July
2023, issued notice to the respondents, returnable after two
weeks i.e. on 1st August 2023. We also directed the respondent
No. 2 to file an affidavit-in-reply.
12 On 1st August 2023, when the matter came up for
hearing, learned A.P.P tendered an affidavit of Shri Vivek Shende,
Senior Police Inspector, Tardeo Police Station, Mumbai dated 1 st
August 2023. The said affidavit was taken on record and a copy
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thereof, was served on the learned counsel for the petitioner.
Learned counsel for the petitioner also tendered two affidavits;
one affidavit of Nitin Sampat and an additional affidavit of the
petitioner-Neelam Sampat. In both the affidavits, the details of
what happened on 17th and 18th July 2023 have been set-out in
detail. The high handedness and the conduct of the officers have
also been set-out. The affidavit filed by Nitin not only reveals the
circumstances under which he was illegally detained, but also
how he was physically and mentally abused by the police. Nitin,
in his affidavit, has stated that he was not only abused by the
police, but was kept in a lock-up at Saat Rasta for the whole night
i.e. the intervening night of 17 th and 18th July 2023 with other
criminals and even stripped by the police. According to Nitin's
affidavit, he was taken to Saat Rasta Lock-up at about 1:00 a.m.
and was kept there up to 11:00 a.m. on 18th July 2023. During
the course of the hearing i.e. on 1 st August 2023, learned counsel
for the petitioner requested that the police be directed to
preserve the CCTV footages of both the police stations i.e.
SQ Pathan 10/33
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Tardeo Police Station and Saat Rasta Lock-up.
13 In view of the affidavits/additional affidavits
tendered, learned A.P.P sought time to go through the
affidavits/additional affidavits filed by the petitioner and her
husband-Nitin. In the meantime, having regard to the serious
allegations made against the respondents attached to Tardeo
Police Station, we directed the DCP, Zone-III Shri Akbar Pathan,
to preserve the CCTV footage of Tardeo Police Station from 17 th
July 2023 from 3:00 p.m. to 18 th July 2023 till 3:00 p.m and that
of Saat Rasta Lock-up from 18th July 2023 from 1:00 a.m. to
1:00 p.m.
14 On 1st August 2023, we were also informed by the
learned counsel for the petitioner that Nitin had received a call
from one constable of Tardeo Police Station on 31 st July 2023 at
10:41 a.m. from mobile No.xxxxxxxxx. It was submitted that,
Nitin was informed to meet ACP immediately, during the course
SQ Pathan 11/33
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of the day, in connection with the C.R lodged against him; that
Nitin contacted his advocate, pursuant to which, his advocate
spoke to constable-Shri Mahadik and that the constable informed
the advocate, that the police are expecting Nitin to sign a bond
under Section 107 of the Code of Criminal Procedure (`Cr.P.C');
and, that Nitin should visit the police station in the afternoon.
According to Nitin, when his advocate called the constable at
2:30 p.m. to confirm the timing, no reply was received. Learned
counsel for the petitioner states that he (Advocate) has recorded
the conversation between him (Advocate) and constable-
Mahadik. In view of the same, we directed the learned A.P.P to
take instructions, whether any such notice was issued under
Section 107 of the Cr.P.C against Nitin or is in the offing.
Accordingly, the matter was adjourned to 22 nd August 2023.
15 On 30th August 2023, when the aforesaid petition
appeared, learned A.P.P sought time to file affidavit-in-reply, with
respect to when the petitioner was taken to Tardeo Police Station
SQ Pathan 12/33
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and thereafter, to Saat Rasta Lock-up and thereafter, when he
was released, in view of the discrepancies in the timings stated by
the learned counsel for the petitioner and the police. The said
affidavit was to be filed before the next date i.e. 8 th September
2023.
16 We have perused the three affidavits-in-reply filed by
the police. In the affidavit filed by Shri Vivek Shende, Senior
Police Inspector, Tardeo Police Station, Mumbai dated 1st August
2023, in paras 2, 4 and 5, it is stated as under :
"2. At the outset I tender my unconditional apology for
the action of investigating Officer arresting Husband of
the petitioner in bailable offence. I say that the said
officer was Probationary Officer and inadvertently
arrested petitioner in connection with C.R. No. 310 of
2023 registered at Tardeo Police Station for offences
punishable u/s 354(A), and 509 of IPC."
"4. I say that after the said FIR was transferred to
Tardeo Police Station the Investigation of the said case
was assigned to WPSI Priyanka Kadam the said
investigating officer had given notice under section
421(A) of CRPC to Petitioners Husband on 07/07/2023
SQ Pathan 13/33
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to produce his Mobile for the purpose of investigation.
I say that although the accused has attended the
concerned police station he has not surrendered his
mobile for investigation purpose therefore on
17/07/2023 after giving notice to the petitioners
Husband, the concerned investigating officer
inadvertently arrested the accused on 17/07/2023."
"5. I say that immediately after it had come to the
knowledge that the Petitioner Husband was arrested in
bailable offence he was immediately released on bail on
18/07/2023. I once again tender my unconditional
apology and henceforth will ensure that there is no
violation of any fundamental right while arresting any
person by the officers of Tardeo Police Station."
17 Two more affidavits were filed by Shri Akbar Ilahi
Pathan, the Deputy Commissioner of Police, Zone-III, Mumbai,
one dated 21st August 2023 and the second dated 6th September
2023. The second affidavit was filed pursuant to the order dated
30th August 2023 passed by this Court for placing on record the
timings as to when petitioner's husband-Nitin was taken to Saat
Rasta Lock-up.
SQ Pathan 14/33
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18 In the first affidavit dated 21st August 2023, the
Deputy Commissioner of Police-Shri Akbar Pathan has stated that
the CCTV Camera footage of Tardeo Police Station and Saat
Rasta Lock-up was preserved, having regard to the order dated 1 st
August 2023 passed by this Court. It is further stated in para 3 of
the said affidavit that having regard to the seriousness of the
grievance made by the petitioner, the investigation of C.R. No.
310/2023 registered with Tardeo Police Station was immediately
transferred to Nagpada Police Station for further investigation
and that Police Inspector- Shri Kiran Chougule was investigating
the said case and that Sr. Police Inspector of the said police
station is monitoring the investigation of the said case. In para 4
of the said affidavit, it is stated that having regard to the serious
allegations made by the petitioner and her husband in their
affidavits, an inquiry has been initiated against the errant
officials. The said inquiry is headed by Assistant Commissioner
of Police, Tardeo Division and that the inquiry is still in progress.
It is further stated in para 6 that no action under Section 107 of
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Cr.P.C has been taken against the petitioner's husband.
19 In the affidavit of Shri Akbar Pathan, the DCP, Zone-
III, Mumbai dated 6th September 2023 filed pursuant to the order
dated 30th August 2023, it is stated that, on the basis of the
analysis of CCTV footages of Tardeo Police Station and Saat
Rasta Lock-up, there is a time difference of 6 minutes of actual
time in the CCTV footage maintained at Tardeo Police Station
and a time difference of 28 minutes of actual time and the
CCTV footage maintained at Saat Rasta Lock-up. It is stated that
the on 17th July 2023, when the petitioner along with her
husband-Nitin, advocate and others came to Tardeo Police
Station, the CCTV time is mentioned as 16:04 hrs. i.e. there is a
time difference of +6 minutes of actual time (16:10 hrs.); that on
18th July 2023, after Nitin was transferred to Saat Rasta Lock-up
with police security from Tardeo Police Station, the CCTV time
is mentioned as 01:04 hrs. i.e. there is a time difference of +6
minutes of actual time (01:10 hrs.); that when Nitin was taken
SQ Pathan 16/33
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to Saat Rasta Lock-up with police protection, the CCTV time is
mentioned as 02:35 hrs. i.e. there is a time difference of -28
minutes of actual time (02:07 hrs.); that when Nitin was taken
out from Saat Rasta Lock-up with police protection, the CCTV
time is mentioned as 11:32 hrs. i.e. there is a time difference of -
28 minutes of actual time (11:04 hrs.); that when Nitin was
brought to Tardeo Police Station from Saat Rasta Lock-up with
police, the CCTV time is mentioned as 11:13 hrs. i.e. there is a
time difference of +6 minutes of actual time (11:19 hrs.) and
that when Nitin was released from Tardeo Police Station, after
bail procedure, the CCTV time is mentioned as 13:38 hrs. i.e.
there is a time difference of +6 minutes of actual time (13:44
hrs.). In para 4 of the said affidavit, it is stated that an inquiry
has been initiated and the errant officials who will be found
guilty of dereliction of duty, will be punished.
20 It is thus clearly evident from the aforesaid facts, that
the petitioner's husband-Nitin was detained illegally by the police
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from around 9:30 p.m on 17th July 2023, till 1:00 p.m. on 18 th
July 2023, till the time, the police learnt of the petition filed in
this Court. It is not disputed by the police that both the offences
i.e. under Sections 354A and 409 of the IPC, with which Nitin
was charged, were bailable. It is also not disputed that the
petitioner and her husband had offered to furnish bail as
contemplated under Section 436 of Cr.P.C.
21 No doubt, all the prayers are worked out, however,
having regard to the peculiar facts, the question that arises for
consideration is, whether the petitioner's husband is entitled to
compensation for his illegal detention.
22 As noted above, the petitioner and her husband-Nitin,
both have filed their additional affidavits dated 1st August 2023.
Both, the petitioner and her husband-Nitin have, in detail, set-out
the manner in which Nitin was treated and abused by the police.
SQ Pathan 18/33
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23 Nitin, in his affidavit, has stated in detail the high-
handedness of the officers of Tardeo Police Station as well as of
those managing the affairs of Saat Rasta Lock-up, who are
responsible for his mental and physical trauma, bordering on
torture. He has stated that a complaint was filed by one
Ms. `X' against him with the Malad Police Station, Mumbai,
alleging offences punishable under Sections 354A and 509 of the
IPC, as according to Ms. `X', he had spoken to her indecently,
when she questioned about increase of fees from Rs. 2,500/- to
Rs. 3,500/-. It appears that Nitin attended the Malad Police
Station on a few occasions and met the concerned officer,
alongwith his lawyer. The said FIR i.e. 00/2023 registered with
the Malad Police Station was subsequently transferred to the
Tardeo Police Station and numbered as C.R. No. 310/2023 for
the alleged offences punishable under Sections 354A and 509 of
the IPC.
24 Nitin, in his affidavit, has set-out the details of how
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the officers at Malad Police Station and thereafter, the police at
Tardeo Police Station and Saat Rasta Lock-up, treated him. He
has also in detail, set-out the conduct of the officers of Tardeo
Police Station on every occasion when he, his wife and family
visited the said police station. It is stated that neither the copy of
the FIR was made available to him at any point of time nor was it
filed in any court and that the same was verified by his lawyer.
He has stated in para 28 of his affidavit, that despite the offences
being bailable, how the officer had reprimanded him for leaving
the town (when he had gone for his daughter's concert to
Bengaluru), despite having cooperated with the investigation and
there being no restrictions on his travel. As far as the incidents of
17th and 18th July 2023 are concerned, in paras 31 to 54, the
incidents and the conduct of the officers has been spelt out in
detail. He has also stated how the officers abused him and that
despite the offences being bailable, even refused to listen to his
lawyer, who pleaded for bail, the offences being bailable. He has
stated that when his lawyer stated that they would be constrained
SQ Pathan 20/33
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to approach the High Court, one of the officer threatened to
lodge an NC and even an FIR against him, under the provisions
of the IPC. He has stated that on 17th July 2023, he was detained
by the Tardeo Police Station from 9:30 p.m. till 1:00 a.m. on 18th
July 2023 and thereafter, was lodged at Saat Rasta Lock-up upto
11:00 a.m. on 18th July 2023. He has stated that the police at
Tardeo Police Station asked him to give his belt, ring, wallet,
napkin, phone and everything that he possessed to his wife and
asked him to sit in the detention room. They noted his personal
details, took his pictures and told him to raise his T-shirt, to see if
he had any cuts or marks or tattoo. Thereafter, from Tardeo
Police Station, he was taken to Nair Hospital, where his Covid
test was done and he was kept in Saat Rasta Lock-up. He has
stated specifically in para 39, that in the said lock-up, the officers
present there asked him to remove his clothes, insisted that he is
strip naked and forced him to remain in that position for some
time and after a while, allowed him to put on his underwear. He
has stated that it was extremely humiliating and embarrassing and
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that he had no idea what was happening. He was also compelled
to remove his Janoi (religious thread). He has stated that this
conduct shattered him, leading to depression. He has further
stated that after much persuasion, he was given his pants through
the bars, however, he was not given his T-shirt, resulting in
several mosquito bites. He has further stated that he was made
to sit in a corner without food or water and when water was
sought, he was given water, which was not fit for consumption.
He has stated that despite asking the police, that he is required to
take BP medicine, on 18 th July 2023 morning, the police paid no
heed and finally, in view of repeated requests, allowed him to
take his medicine. He has further stated that on 18th July 2023 at
around 11:00 a.m, three personnel came to pick him up and took
him back to Tardeo Police Station threatening him that, "your
lawyer has told Priyanka madam see you in the court aisa kyon
bola re?". Again, he has stated that after some time, when at
Tardeo Police Station, he saw movements and police panicking
and discussing some steps and even offered him food and that at
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around 1:00 p.m, they asked him to come out and made him sign
a bond, which had some details. He has stated that pursuant
thereto, he went home. According to Nitin, he did not have
money to take a cab and hence, when he reached home, was
required to borrow money from a shop, below his house. When
he went home, he learnt that his family was running between
Court, for getting him released. Nitin has stated that throughout
his arrest/detention, police insisted that bail was not possible and
refused bail, in bailable offence. He has stated that thereafter, on
18th July 2023, probably after receiving notice from the High
Court, the police of Tardeo Police Station released him, after
making him sign on a bond paper. He has further stated that his
detention in Tardeo Police Station and in the lock-up, at Saat
Rasta, has scarred him, both emotionally and mentally. He has
further stated that thereafter, the police called him again to sign a
bond, which he later learnt, through his lawyer, was a bond
under Section 107 of the Cr.P.C.
SQ Pathan 23/33
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25 The additional affidavit of the petitioner, who is
Nitin's wife, is on similar lines with respect to the conduct,
behaviour of the officers at Tardeo Police Station as well as Saat
Rasta Lock-up, the harassment meted to Nitin by the officers and
the trauma suffered by her husband-Nitin.
26 Nitin was not only detained by the police of the
Tardeo Police Station in bailable offences, but was sent to Saat
Rasta Lock-up and made to stay there the entire night, despite
the offences being bailable and despite offering to give bail. As
noted above, Nitin was asked to strip and made to sit in the lock-
up with other criminals. The CCTV footage also evidences the
fact, that Nitin was sent to Saat Rasta Lock-up and was detained
the whole night in the lock-up. This is a case, where there is
gross violation of Nitin's right guaranteed to him under Article
21; his right to be released on bail under Section 436 Cr.P.C, in
bailable offences; and a clear violation of the Apex Court
SQ Pathan 24/33
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judgments in the case of Arnesh Kumar (Supra) and Satender
Kumar (Supra). Ultimately, Nitin was made to sign a bond,
when the police learnt of the filing of this petition, and was
released. The same ought to have been done earlier, before
Nitin's arrest and detention, when he offered to furnish bail.
There was no justification for Nitin's arrest, more particularly,
when the offences were bailable and he had offered to furnish
bail.
27 The Supreme Court has time and again frowned on
unnecessary arrests even in non-bailable offences. As observed by
the Apex Court in Joginder Kumar v. State of U.P.3, the quality of
a nation's civilization can be largely measured by the methods it
uses in the enforcement of criminal law. The Apex Court in para
20 of the said judgment, observed as under :
"20. ........................ No arrest can be made
because it is lawful for the police officer to do so. The
existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. The
3 (1994) 4 SCC 260
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police officer must be able to justify the arrest apart from
his power to do so. Arrest and detention in police lock-up
of a person can cause incalculable harm to the reputation
and self-esteem of a person. No arrest can be made in a
routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent for a
police officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own
interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable
belief both as to the person's complicity and even so as to
the need to effect arrest. Denying a person of his liberty is
a serious matter. ............................" .
(emphasis supplied)
28 In Arnab Manoranjan Goswami v. State of
Maharashtra & Ors.4, in para 68, the Apex Court observed as
under :
"68. ............ The doors of this Court cannot be
closed to a citizen who is able to establish prima facie that
the instrumentality of the State is being weaponized for
using the force of criminal law. Our courts must ensure
that they continue to remain the first line of defence
against the deprivation of the liberty of citizens.
Deprivation of liberty even for a single day is one day too
many. .............................."
(emphasis supplied)
4 (2021) 2 SCC 427
SQ Pathan 26/33
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29 Infact, the Supreme Court in a catena of cases has
observed, that in non-bailable offences, the police officer must be
satisfied that, under Section 41(1)(b) Cr.P.C, such arrest is
necessary to prevent the person sought to be arrested from
committing any further offence, for proper investigation of the
offence, to prevent the arrestee from tampering with or
destroying evidence, to prevent them from influencing or
intimidating potential witnesses, or when it is not possible to
ensure their presence in court without arresting them. Police
officers have a duty to apply their mind to the case before them
and ensure that the conditions in Section 41 are met before they
conduct an arrest. Thus, the emphasis is on bail, even in non-
bailable offences, except in heinous cases [Arnesh Kumar (Supra)].
30 It is pertinent to note, but for the petitioner
approaching this Court immediately on the next day i.e. on 18 th
July 2023 and production being granted with a direction to the
learned A.P.P to take instructions from the Tardeo Police Station,
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we are afraid, Nitin could have been detained for a longer period.
Not everyone has the means, the capacity and the wherewithal to
approach the Court and to even take cudgels with the police.
31 In the peculiar facts, although not prayed, we are of
the opinion that compensation ought to be awarded to the
petitioner's husband not only for violation of law, but also for
violation of his fundamental right under Article 21 of the
Constitution i.e. right to live with dignity. The Courts are not
powerless or helpless, while exercising their powers under
Section 226, when on the face of it, there is
infringement/violation of the fundamental right of a citizen. The
grave injustice caused to the petitioner's husband-Nitin, no
doubt, cannot be compensated by money alone, however,
granting some compensation and directing some action to be
taken against the errant officers, would offer some solace/balm to
the wounds, which the petitioner's husband and his family has
suffered. Article 21 of the Constitution guarantees right to life
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and liberty and the said right includes the right to live a dignified
life. The police, as noted above, have on the face of it, violated
this fundamental right to life and liberty guaranteed to Nitin
under Article 21 of the Constitution.
32 It is also pertinent to note, that although the FIR was
lodged on 7th July 2023, the copy of the FIR was filed in the
Court of the learned Magistrate only on 18th July 2023 at 11:55
a.m, on the day when the matter was listed before us. The right
to compensation is palliative for the unlawful acts of
instrumentalities, which act in the name of public interest and
which present for their protection the powers of the State as a
shield. The rights of individuals must be recognized by the
instrumentalities of the State and that any abuse or misuse of
power, should attract consequences. Hence, in the peculiar facts,
the State must repair the damage done to the petitioner's
husband's right, by its officers. Ofcourse, it is for the State to take
recourse against those officers responsible for the said violation.
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The facts as narrated, smacks of police high handedness. It
smacks of their insensitivity. It reveals their lack of knowledge of
the legal provisions and judgments of the Apex Court, vis-a-vis
grant of bail. This action of the police has resulted in unjustified
trauma-physical, emotional and mental to the petitioner's
husband-Nitin.
33 As noted above, it is not disputed that the offences
were bailable and that the police ought to have granted bail to
Nitin under Section 436 Cr.P.C. Infact, in the affidavit filed by
Shri Vivek Shende, Senior Police Inspector, Tardeo Police Station,
Mumbai, he has tendered an unconditional apology and ensured
that henceforth, there will be no violation of any fundamental
right while arresting any person by the officers of Tardeo Police
Station.
34 Although, we accept the unconditional apology
tendered in the affidavit dated 6 th September 2023 filed by Shri
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Akbar Pathan, the DCP, Zone-III, Mumbai, and an assurance that
there will be no violation of the fundamental rights while
arresting the person, in the facts, we deem it necessary and
imperative to award costs to Nitin for the brazen acts of the
officers. We, as constitutional courts, cannot be oblivious of the
gross abuse of law, in this case and would fail in our duty, if the
wrong is not redressed.
35 Accordingly, having regard to the peculiar facts of this
case, we deem it appropriate to pass the following order :
ORDER
(i) We direct the State Government to pay compensation
of Rs. 2,00,000/- (Rupees Two Lakhs) to the petitioner's
husband-Nitin Sampat, within 6 weeks from today.
(ii) The respondent No. 4- The Commissioner of Police,
Mumbai, to appoint an Officer not below the rank of
Deputy Commissioner of Police, to conduct an inquiry with
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regard to the incidents and conduct of the police officers of
the Tardeo Police Station as well as the Saat Rasta Lock-up.
The petitioner and her husband to be heard in the inquiry
so conducted. The inquiry to be completed within eight
weeks.
(iii) The compensation so paid, to be recovered,
after a full-fledged inquiry, from the salary of the
person/persons found responsible for the illegal detention
of the petitioner's husband-Nitin and for the actions alleged
in the lock-up.
36 Rule is made absolute in the aforesaid terms. Petition
is disposed of accordingly.
37 A copy of this Judgment and Order be sent to the
Director General of Police, State of Maharashtra and the
Commissioner of Police, Mumbai, so as to enable them to issue
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appropriate guidelines/directions to Police Stations, with respect
to grant of bail in bailable offences.
38 Stand over to 12 weeks, for recording compliance of
the payment of compensation and for presentation of the inquiry
report and steps taken for recovery of the compensation amount,
if any, from the erring officer/officers.
39 All concerned to act on the authenticated copy of this
Judgment.
GAURI GODSE, J. REVATI MOHITE DERE, J.
SQ Pathan 33/33
