Bombay High Court
Rajeshree Bhausaheb Vikhe Patil vs State Of Maharashtra on 22 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:33665-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3476 OF 2024
Rajeshree Bhausaheb Vikhe Patil
Age. 56 years, Occ: Lawyer
Currently Residing at 1080, Songav Petitioner
Road, At Post: Loni, Tal: Rahata, Loni
BK, District: Ahmednagar - 413736
Versus
1. The State of Maharashtra
Respondents
2. Senior Inspector of Police
Vanrai Police Station, Mumbai
...
Mr. Rishi Bhuta a/w Ms Neha Patil, Ms Saakshi Jha, Mr.
Prateek Dutta and Ms Vaishnavi Javheri, for the Petitioner.
Mr. Shahaji Shinde, 'A' Panel Counsel a/w Mr. D. J. Haldankar
APP, for the Respondent - State.
Mr. Khandagale, PSI, Vanrai Police Station, is present.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 22nd AUGUST, 2024
Order: (Per Manjusha Deshpande, J.):-
1. The petitioner is seeking declaration that her arrest in
relation to FIR No. 72 of 2024 dated 18.02.2024, registered
with Vanrai Police Station, Mumbai is illegal and in gross
violation of the fundamental rights guaranteed under Articles
21 and 22 of the Constitution of India.
The petitioner is further seeking declaration that the
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remand order dated 04.07.2024 passed by the Learned M. M.
Court at Borivali, is null and void and subsequent orders
passed are in complete violation of the constitutional rights of
the petitioner which are guaranteed under the Constitution of
India. Resultantly, the petitioner is seeking direction to release
her from custody in FIR No. 72 of 2024 registered with Vanrai
Police Station, Mumbai.
2. It is the contention of the petitioner that she has been
arrested on 04.07.2024, since she has been arraigned as an
accused in FIR No. 72 of 2024, registered with Vanrai Police
Station, on the complaint of one Mr.Rajshekhar Shivajirao
Deshmukh for offence punishable under Sections 34, 420, 465,
468 and 471 of the Indian Penal Code.
3. It is the case of the prosecution that, the complainant,
Rajshekhar Deshmukh has fled a complaint against the
husband of the petitioner namely Vishnu Ramchandra
Mahadik alleging that, the complainant was assured by Vishnu
Mahadik that, he will provide a fat of MHADA Scheme at
cheaper rate. On such promise some amount was parted by
the complainant in favour of Vishnu Mahadik. Since Vishnu
Mahadik failed to provide the fat and also avoided to return
the amount, the complaint has been fled against him. It is
further alleged that, he has also prepared certain false and
bogus allotment letters and documents in respect of the fat
which was promised to the complainant, but did not give the
physical possession of the fat as mentioned in the allotment
letters.
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On this premise, the FIR No. 72 of 2024 was registered
against the husband of the petitioner (Vishnu Mahadik) as
well as against the petitioner.
4. According to the petitioner, she had received a notice
vide Inward No.4625/2023 dated 18.08.2023 issued by Vanrai
Police Station to attend the inquiry in connection with the
complaint fled by the complainant Rajshekhar Deshmukh on
13.03.2023. On receiving the said notice through WhatsApp,
she immediately moved an Anticipatory Bail Application, but
the same came to be dismissed on the ground that, no FIR was
fled.
5. The petitioner contends that she had appeared before the
concerned Investigating Offcer (I.O.) alongwith her Advocate
and her statement was also recorded. After recording her
statement, the present FIR came to be registered after 10 long
months. She has been arrested without informing or giving her
any notice under Section 41(a) of the Code of Criminal
Procedure.
6. The petitioner has approached this Court in its writ
jurisdiction seeking declaration that, her arrest is illegal and
in gross violation of the fundamental rights guaranteed under
the Constitution of India. According to her, the grounds of
arrest were not communicated to her in writing, and as such,
the arrest is in gross violation of the constitutional mandate
under Article 22(1) of the Constitution of India and also
contrary to the mandate of Section 50 of the Code of Criminal
Procedure, 1973.
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It is further contended that, since grounds of arrest were
not furnished to the petitioner at the time of her arrest and
before remanding her to the custody, her continuing custody is
rendered illegal and null in the eyes of law, since it is hit by the
mandate of Article 22(1) of the Constitution of India.
7. After hearing the learned counsel for the petitioner, we
have called upon Mr. Shahaji Shinde, learned 'A' Panel Counsel
to respond to the grounds raised by the petitioner in relation
to non-adherence of Section 50 of the Cr.P.C. and violation of
Article 22(1) of the Constitution of India. The learned 'A' Panel
Counsel has produced the original fle of the petitioner which
contains the details of the case diary and the documents in
relation to the arrest of the petitioner.
8. According to the learned counsel, the petitioner was
arrested on 04.07.2024 and details of her arrest are given in
the arrest panchanama. In the said arrest panchanama it is
mentioned that, one Neha Patil has been intimated about the
arrest of the petitioner on 04.07.2024. According to him, the
case diary dated 04.07.2024 refects that the petitioner was
arrested by adhering to the guidelines issued by the Hon'ble
Apex Court, as the intimation of her arrest was given to her
friend namely, Neha Patil. According to the learned 'A' Panel
Counsel, the intimation given to the near friend of the
petitioner amounts to adherence to the guidelines issued by
the Apex Court.
We have perused the papers produced by the learned 'A'
Panel Counsel, we could not locate any documents in the said
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papers which would indicate that the grounds of arrest were
communicated to the petitioner in writing in adherence to the
guidelines issued by the Apex Court. Apart from the evidence
collected by the prosecution during the investigation and the
papers in relation to the remand of the petitioner, there is
nothing in the record which would indicate that there is a
compliance of the guidelines issued by the Apex Court.
9. After hearing the respective counsel, from the
arguments advanced as well as the documents produced by the
learned 'A' Panel counsel, it is not in dispute that the petitioner
has been arrested on 04.07.2024. The same is evident from
the arrest panchanama produced by the learned 'A' Panel
counsel.
10. Mr. Rishi Bhuta, the learned counsel for the petitioner
has placed reliance on Article 22(1) of the Constitution of
India and Section 50 of the Cr.P.C. for asserting the rights of
the petitioner qua her detention. The learned counsel for the
petitioner while advancing his argument has placed reliance
on the judgment delivered by this Court in Mahesh Pandurang
Naik V/s. The State of Maharashtra and Anr.1. The petitioner
therein was also similarly placed. While challenging the arrest
of the petitioner in the said Writ Petition, it was contended that
the arrest was in utter violation of Article 22(1) of the
Constitution of India and Section 50 of the Cr.P.C. Both the
provisions provide safeguard against illegal detention and
right of protections against arrest.
1 WP(Stamp)/13835/ 2024 (Decided on: 18.07.2024)
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Article 22(1) of the Constitution reads thus:
"(1) No person who is arrested shall be detained in
custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal
practitioner of his choice."
Section 50(1) of the Code of Criminal Procedure also
provides a safeguard, which reads thus:
"50. Person arrested to be informed of grounds of arrest
and of right to bail.- (1) Every police offcer or other
person arresting any person without warrant shall
forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for
such arrest.
(2).........."
11. Taking into consideration the two safeguards, this Court
has taken a view in Mahesh Pandurang Naik (supra), which is
consistent with the judicial pronouncements in Pankaj Bansal
Vs. Union of India & Ors.2 and Prabir Purkayastha Vs. State
(NCT of Delhi)3, which reads thus:
"24. The decisions of the Apex Court in Pankaj Bansal
Vs. Union of India and in Prabir Purkayastha Vs. State
(NCT of Delhi), which now is the law declared by the
Apex Court, in the wake of Article 141 of the
Constitution of India, bind all the Courts within the
territory of India. Similarly, in terms of Article 144,
since all the authorities, civil and judicial, in the
territory of India shall act in aid of the Supreme Court,
the law shall be followed by all concerned, including the
Courts as well as the authorities exercising the power of
arrest.
2 2023 Live Law (SC) 844
3 2024 SCC OnLine SC 934
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In light of the elucidation of law in the above
manner, the focus being clause (1) of Article 22 of the
Constitution of India, when we have examined the
present case, it is evident that the grounds of arrest
were not furnished to the Petitioner in writing and the
arrest/surrender form/panchnama produced before us,
column 8 is an unflled column, which in fact expected
the arresting authority to ensure, "whether the
arrested person, after being informed of the grounds of
arrest and his legal rights, was duly taken into custody
on ---(date) --- (hours) ---- (place)". The form only
indicate that the intimation of arrest was given to
Laxmi Pandurang Naik, mother of the Petitioner. The
station diary entry record that note of his arrest has
been taken in the concerned Register and he was
apprised of the reasons of arrest (vVdsph dkj.ks) and,
thereafter, he was arrested.
The procedure followed by Respondent No.2 is
evidently in violation of sub-clause (1) of Article 22 of
the Constitution of India and, since, this provision now
stands interpreted by the Apex Court in Pankaj Bansal
(supra) and in the wake of the declaration, coming into
effect from 03/10/2023, any arrest made thereafter
must ensure compliance, by indicating the 'ground(s) of
arrest in writing' expeditiously.
The ratio laid down by the Apex Court having been
declared to be law of land, binding on all courts of the
country, by virtue of Article 141 of the Constitution of
India, needless to state, must be followed by each and
every one, including any offcer/person/magistrate,
before effecting arrest of a person, in any case, where
his arrest is deemed necessary and this ground shall
contain all such details in the hand of the Investigating
Offcer, which necessitated the arrest of the accused."
Since the arrest of a person entails in restricting free
movement and personal liberty of an individual which is
guaranteed under Article 21 of the Constitution, it is
necessary to adhere to the procedure prescribed by law and
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comply with various provisions before restricting his freedom
of movement.
If a person has committed an offence and it is necessary
to arrest him for the purpose of proper investigation or to
prevent him from committing any further offence or from
causing the evidence to disappear or tamper with such
evidence, only in such cases the arrest of a person would be
justifed, that too after following the prescribed procedure of
law and due compliances of various provisions. Articles 21
and 22(1) of the Constitution guarantee protection against
arrest and detention in certain cases by making it mandatory,
for the grounds of arrest to be communicated to a person
before his arrest. Similarly, Section 50 of the Cr.P.C. makes it
mandatory upon the police offcer or a person arresting any
person to communicate to the accused about the full
particulars of the offence for which he is arrested and the
ground for such arrest.
The above two provisions which has been considered by
the Apex Court in a catena of decisions right from Vijay
Madanlal Choudhary V/s Union of India4, and recently in
Pankaj Bansal (supra), the decision of the Apex Court in
Pankaj Bansal and Prabir Purkayastha (supra), bind all the
courts within the territory of India, hence, considering the
judicial pronouncements in the above mentioned judgments, it
is imperative for the police authorities to follow the mandate of
the said judgments.
12. Considering that this Court has already taken a view in
4 2022 (10) SCALE 577
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case of Mahesh Pandurang Naik, wherein all the judgments
governing arrest of a person and adherence to the provisions
of Code of Criminal Procedure as well as the Constitution have
been dealt with in detail, and since the present petitioner has
also challenged her arrest on the grounds similar to the
grounds raised in Mahesh Pandurang Naik (supra), the
decision in the said case will squarely apply to the present Writ
Petition. It is declared that arrest of the petitioner in
connection with FIR No. 72 of 2024 registered with Vanrai
Police Station is illegal and in gross violation of fundamental
rights of the petitioner. As a result, the subsequent remand
orders dated 04.07.2024 passed by the learned M. M. Court
Borivali being unsustainable, are quashed and set aside. As a
result of setting aside the order of arrest and remand order,
the petitioner is entitled to be released.
Accordingly, we direct to release the petitioner from
custody on furnishing bail bond to the satisfaction of the Trial
Judge.
Rule is made absolute in the above terms.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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