Bombay High Court
Nasir Alim Hashmi (Mir Abdul Nasir ... vs State Of Mah. Thr. Pso Ps Kurkheda ... on 12 August, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:8954-DB
1 3.cri.wp.855.2022 J..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.855 OF 2022
1. Nasir Alim Hashmi (Correct Name :
Mir Abdul Nasir Hashmi) Aged about
40 years, Occ : Journalist R/o
Ranapratap Ward, Kurkheda Dist.
Gadchiroli
2. Shabir Alim Hashmi, Aged about 34
years, Occ : Agriculturist, r/o
Ranapratap Ward, Kurkheda Dist.
Gadchiroli.
3. Vinod Narayan Meshram, Aged about
42 years, Occ : Labour, R/o Shree
Ram Nagar, Kurkheda, Dist.
Gadchiroli.
4. Ishwar Waman Thakur, aged about
34 years, Occ : Cutlery, R/o
Ambedkar Ward, Kurkheda, Dist.
Gadchiroli.
5. Ejaz Rafik Sheikh aged about 37
years, Occ : Auto Dealer, R/o
Ranapratap Ward, Kurkheda, Dist.
Gadchiroli.
...PETITIONERS
VERSUS
1. State of Maharashtra, through PSO
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PS Kurkheda, Gadchiroli.
2. Khushal Ramkrushna Bansod, aged
38 years, Occ - Contractor, R/o
Gandhi Ward, Kurkheda, Tq.
Kurkheda, Dist. Gadchiroli.
3. Abhay Murlidhar Ashtekar, Police
Inspector, Police Station, Kurkheda,
Dist. Gadchiroli.
4. Dr. Bhuneshwar Ghanshyam Khune,
Medical Officer, Sub-District
Hospital, Kurkheda, Dist. Gadchiroli.
... RESPONDENTS
__________________________________________________________
Shri Mir Nagman Ali, Advocate for the petitioners.
Shri A.B. Badar, Additional Public Prosecutor for the
State.
Shri Rajnish Vyas, Advocate for respondent no.3.
__________________________________________________________
CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
DATED : 12.08.2024.
JUDGMENT :
(Per : Vinay Joshi, J.)
RULE. Rule made returnable forthwith. Heard
finally with the consent of both sides.
2. The petitioners are seeking compensation on
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account of illegal arrest, consequential relief of initiating
Departmental Enquiry against respondent no.3 Police
Inspector and an action for contempt of Court.
3. The facts in brief are that, one Khushal Bansod
has lodged report on 26.09.2022 on the basis of which
crime has been registered with the Kurkheda Police Station,
District Gadchiroli vide First Information Report No.136 of
2022 for the offence punishable under Sections 325, 294,
143, 147, 148, 149 of the Indian Penal Code, and Section
135 of the Maharashtra Police Act. It is the informant's case
that a Contract of collection of garbage was alloted to him.
Petitioner no.1 Nasir Hashmi and Petitioner no.3 Vinod
Meshram were dissatisfied by said allotment of contract and
on said count, used to pick up quarrel. On 25.09.2022,
around 10.00 p.m., while the informant was near panshop,
the petitioners (accused) accosted him and abused in filthy
language. Accused also assaulted him by means of stick,
fists blows and kicks, and therefore, the report.
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4. On the basis of said report, the Police have
registered aforesaid crime on 26.09.2022 around 3.46 a.m.
All accused were arrested on the very day i.e. on
26.09.2022 around 6.10 a.m. and produced before the
concerned Judicial Magistrate First Class within 24 hours
with the remand report. Respondent no.3 the Investigation
Officer sought police custody for the purpose of
investigation. The learned Magistrate was pleased to
remand the petitioners (accused) into the police custody till
the next date i.e. 27.09.2022.
5. In the aforesaid background, the petitioners'
would contend that all the offences are bailable, therefore
the police could not have arrested them. In other words, the
arrest in connection with bailable offences is totally illegal.
Secondly, it is canvassed that in contravention of the
guidelines issued by the Supreme Court in case of Arnesh
Kumar vs. State of Bihar and anr. (2014) 8 SCC 273, arrest
has been effected, without issuing mandatory notice under
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Section 41-A of the Code of Criminal Procedure (for short
'the CrPC).
6. The learned Counsel for the petitioners would
submit that in case of bailable offences, the accused has a
statutory right to get released on bail. The Investigating
Officer did not inform the accused about the right to bail,
but on the contrary sought the police custody remand. It is
submitted that the learned Magistrate in ignorance of
mandate of Section 436 of the CrPC has remanded them
into the police custody, which is illegal. It is the petitioners'
contention that since the offences are punishable up-to 7
years of imprisonment that too of bailable nature, there was
no necessity of arrest. In case of Arnesh Kumar vs. State of
Bihar (supra) directions have been issued about the
necessity and procedure for arrest, which according to the
petitioners, has been flouted. For aforesaid reasons the
petitioners claim to grant compensation for violation of
fundamental right to liberty by effecting illegal arrest.
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7. Learned Counsel Shri Vyas for the respondent
no.3 Investigating Officer, would submit that there is no
legal embargo in arresting the accused in bailable offences.
Only after the arrest, the accused has a right to get released
on bail, which they did not exercise. It is submitted that
provisions of Section 41 of the CrPC did not preclude the
arrest, in offences which may attract punishment to the
extent of 7 years of imprisonment, however the rider
contained in Clause 41(1)(b) of the CrPC has to be
followed.
8. On facts, it is submitted that the petitioners
(accused) after arrest, have not opted to exercise their right
to get released on bail, and thus, the Investigating Officer
cannot be blamed. It is submitted that, having regard to the
nature of accusation the Investigating Officer has formed an
opinion that there is necessity to arrest. The Police Officer
has also recorded reasons for arrest, which were forwarded
to the Magistrate along with the remand report. It is argued
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that the reasons for arrest assigned in writing would fall
within the criteria incorporated in Section 41(1)(b) of the
CrPC, and thus, arrest cannot be termed illegal.
9. Undisputedly, the accused were charged for
bailable cognizable offences. It is also not in dispute that
within 24 hours from the arrest, the accused have been
produced before the concerned Magistrate. We are unable
to see any provision, which could preclude the Investigating
Agency to effect arrest in bailable cases, but Section 436 of
the CrPC provides that in cases of such arrest without
warrant, if an accused is prepared to furnishi bail, he shall
be released on bail. In other words, there can be arrest in
bailable offences, but on arrest the accused has right to get
bail. The petitioners never contended that they had
expressed to the Investigating Officer to furnish bail on their
arrest. Moreover, the order of the Magistrate on the remand
application never indicates that the accused urged for
release on bail, rather it reveals that, at the time of remand,
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the petitioners/accused were represented by an Advocate,
who has opposed for grant of police custody. The order of
the Magistrate never indicates that the accused have
specifically urged to release on bail as they have been
arrested in connection with the bailable offences. There is
no material before us to hold that the accused were
ready/prepared to furnish bail on their arrest.
10. True, in all fairness, the Police ought to have
informed to the accused about their statutory right to get
released on bail. The remand report never discloses that the
accused were informed about their right, which they ought
to have. The Magistrate while authorizing the detention
under Section 167 of the CrPC ought to have satisfied that
arrest was legal and further detention is necessary.
Moreover, the Magistrate ought to have also informed to the
accused about his right to bail as all the offences are
bailable in nature. Rather, it reveals from the order of the
Magistrate that no one has adverted to the vital aspect that
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arrest was in respect of bailable offences. The order of
Magistrate does not give a sense as to whether accused
were made aware about their right to claim bail as offences
are bailable. However, the matter was dealt in the fashion
like the offences are of non-bailable nature. The lapses if
any, on the part of the Magistrate in granting Police Custody
Remand (PCR) cannot be termed to be a deliberate act of
the Investigating Officer. It is for the Magistrate to authorize
detention after 24 hours, which has been erroneously
exercised in total ignorance of the statutory mandate of
Section 436 of the CrPC. We may reiterate that for that
reason the Investigating Officer cannot be blamed.
11. We have already observed that there are no
allegations that the petitioners have prepared or shown
their willingness to furnish bail, therefore, the arrest on said
count cannot be termed as an illegal. The learned Counsel
for the petitioners relied on the decision of this Court in
case of Neelam Nitin Sampat vs. State of Maharashtra 2023
10 3.cri.wp.855.2022 J..odt
ALL MR (CRI) 4095. In the said decision pertaining to
bailable offences, the accused has offered to furnish bail,
which was not considered. Thus, being vital difference in
factual aspect, the said ratio would not assist in any manner.
12. Coming to the another challenge regarding illegal
arrest on account of contravention of the directions of the
Supreme Court in case of Arnesh Kumar vs. State of Bihar
(supra), the matter largely revolves around the provisions of
Section 41 of the CrPC, which we have extracted below to
the extent of relevancy :
"41. When police may arrest without
warrant. - (1) Any police officer may without
an order from a Magistrate and without a
warrant, arrest any person-
[(a) who commits, in the presence of a police
officer, a cognizable offence;
(b) against whom a reasonable complaint has
been made, or credible information has been
received, or a reasonable suspicion exists that
he has committed a cognizable offence
punishable with imprisonment for a term
which may be less than seven years or which
may extend to seven years whether with or
without fine, if the following conditions are
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satisfied, namely:-
(i) the police officer has reason to believe on
the basis of such complaint, information, or
suspicion that such person has committed the
said offence;
(ii) the police officer is satisfied that such
arrest is necessary -
(a) to prevent such person from committing
any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the
evidence of the offence to disappear or
tampering with such evidence in any manner;
or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his
presence in the Court whenever required
cannot be ensured;
and the police officer shall record while
making such arrest, his reasons in writing :..."
13. In case of Arnesh Kumar vs. State of Bihar
(supra), it has been expressed that the Police shall avoid
unnecessary arrest in cases where the offence is punishable
up-to 7 years of imprisonment. The directions issued in
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paragraph 11 of the said decision reads as below : -
"11.1. All the State Governments to instruct
its police officers not to automatically arrest
when a case under Section 498-A IPC is
registered but to satisfy themselves about the
necessity for arrest under the parameters laid
down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a
check list containing specified sub-clauses
under Section 41(1)(b)(ii);
11.3. The police officer shall forward the
check list duly filled and furnish the reasons
and materials which necessitated the arrest,
while forwarding/ producing the accused
before the Magistrate for further detention;
11.4. The Magistrate while authorising
detention of the accused shall peruse the
report furnished by the police officer in terms
aforesaid and only after recording its
satisfaction, the Magistrate will authorise
detention;
11.5. The decision not to arrest an accused,
be forwarded to the Magistrate within two
weeks from the date of the institution of the
case with a copy to the Magistrate which may
be extended by the Superintendent of Police
of the district for the reasons to be recorded
in writing;
11.6. Notice of appearance in terms of
Section 41-A CrPC be served on the accused
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within two weeks from the date of institution
of the case, which may be extended by the
Superintendent of Police of the district for the
reasons to be recorded in writing;
11.7. Failure to comply with the directions
aforesaid shall apart from rendering the
police officers concerned liable for
departmental action, they shall also be liable
to be punished for contempt of court to be
instituted before the High Court having
territorial jurisdiction.
11.8. Authorising detention without
recording reasons as aforesaid by the Judicial
Magistrate concerned shall be liable for
departmental action by the appropriate High
Court."
14. In the said context, it is the petitioners' case that
the Police ought to have issued notice under Section 41-A of
the CrPC, which they did not, and thus, the directions of the
Supreme Court have been flouted. Guideline no.1 postulates
that there shall be no automatic arrest but the Police have
to satisfy themselves about the necessity for arrest under
the parameters flowing from Section 41 of the CrPC.
Moreover, the Police have to furnish the reasons about the
necessity to arrest.
14 3.cri.wp.855.2022 J..odt
15. In the light of the guidelines and the provisions
of Section 41 coupled with Section 41-A of the CrPC, we
have assessed the entire material. Section 41-A of the CrPC
provides that the Police shall issue a notice of appearance in
cases where the arrest is not required under the provisions
of Section 41 of the CrPC. The relevant provision of Section
41-A reads as below :
"41-A. Notice of appearance before police
officer.-
(1) The police officer shall, in all cases where
the arrest of a person is not required under
the provisions of sub-section (1) of section
41, issue a notice directing the person against
whom a reasonable complaint has been
made, or credible information has been
received, or a reasonable suspicion exists that
he has committed a cognizable offence, to
appear before him or at such other place as
may be specified in the notice...."
16. The aforesaid provision makes it clear that in all
cases where the arrest of a person is not required under
Section 41(1) CrPC, the police officer is required to issue
notice directing the accused to appear before him at a
15 3.cri.wp.855.2022 J..odt
specified place and time. Law obliges such an accused to
appear before the police officer and it further mandates that
if such an accused complies with the terms of notice he shall
not be arrested, unless for reasons to be recorded, the police
officer is of the opinion that the arrest is necessary. At this
stage also, the condition precedent for arrest as envisaged
under Section 41 CrPC has to be complied and shall be
subject to the same scrutiny by the Magistrate as aforesaid.
17. Section 41-A(1) provides that if reasonable
complaint has been made, or credible information has been
received regarding the commission of cognizable offence
and the Police Officer has reason to believe that the accused
has committed the offence, then he can arrest subject to
recording satisfaction on the parameters contained in
Section 41(1)(b)(i) and Sub-clause (a) to (e) of Section
41(1)(b)(ii) of the CrPC. Undisputedly along with remand
report, the Police have filed an application (page 33)
informing to the Magistrate the grounds for arrest. The said
16 3.cri.wp.855.2022 J..odt
application also bears a reference about the guidelines
issued by the Supreme Court in case of Arnesh Kumar vs.
State of Bihar (supra). The Investigating Officer has stated
that the arrest is necessary as there is likelihood of accused
committing similar type of offence, he may obstruct in
process of investigation, there is likelihood of pressurizing
the witnesses and the accused may not appear in the Court,
therefore, arrest is necessary.
18. It is apparent that the Police Officer has recorded
the reasons for arrest. Some of them may not be acceptable,
but the satisfaction has been recorded by the Police to effect
the arrest, and therefore, it cannot be said that there is
breach of the directions issued by the Supreme Court in
case of Arnesh Kumar vs. State of Bihar (supra).
19. In conclusion, no absolute proposition can be laid
that arrest is wholly illegal in cases of bailable offences.
However, the arrest shall be in exceptional cases, with a
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mandate to release the accused on bail, if he is prepared to
do so. We see no material nor a contention of accused that
after arrest they have prepared or applied for bail. Grant of
PCR in bailable offences is not approvable in law unless
special circumstances are shown but for that the Police
cannot be held responsible. The petitioners have failed to
make out a case that the arrest was wholly illegal as well as
there is blatant breach of the directions issued by the
Supreme Court in the case of Arnesh Kumar vs. State of
Bihar (supra). In the circumstances, the petition deserves to
be dismissed, hence we do so accordingly. No order as to
costs.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 14/08/2024 15:09:22
