Bombay High Court
Hiten Haridas Raichura vs The State Of Maharashtra And Anr on 11 November, 2024
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2024:BHC-AS:43378
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CHANDERSEN SHIV H.C. SHIV 901.w4396.2021.doc
Date: 2024.11.13
15:38:41 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4396 OF 2021
Hiten Haridas Raichura
Age 47 years, Residing at
1802, Casa Belisimo,
Behind Gorai Depot, Borivali,
Mumbai 400 092. ... Petitioner
vs.
1. State of Maharashtra
Through Colaba Police Station ...
2. Nimish Ramdas Shah
Age 58 years, Residing at
7, Mangrol Mansion, 6, Rustom
Sidhwa Marg, Fort ,
Mumbai 400 001. ... Respondents
Mr. Girish Kulkarni, Senior Advocate with Mr.Kripashankar Pandey,
Mr.Abhishek Kunchikor, Mr.Sujay Shingade, Mr.Mayur Tamore and
Mr.Himanshu Indise, for the Petitioner.
Mr. N. B. Patil A.P.P. for Respondent No.1-State.
Ms. C. Bocarro with Mr. Vivek Sharma for Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 11th SEPTEMBER, 2024,
PRONOUNCED ON : 11th NOVEMBER, 2024.
JUDGMENT :
-
. Present Petition filed under Article 227 of the Constitution
of India and under Section 482 of the Criminal Procedure Code
H.C. SHIV 901.w4396.2021.doc
seeking for quashing and setting aside of the impugned Order dated
10th April, 2019 passed by the 8 th Court of learned Additional Chief
Metropolitan Magistrate, Esplanade, Mumbai in Complaint Case
No.249/SS/2018 thereby said Court directed to issue process against
the Petitioner for an offence punishable under Section 224 of I.P.C.
The Petition also seeking for quashing and setting aside of the
impugned Judgment and Order dated 27th September, 2021 passed by
the learned Additional Sessions Judge, City Civil & Sessions Court,
Greater Mumbai, thereby dismissing a Criminal Revision Application
No.643/2019 assailing the said Order of issue process.
2) Heard learned Senior Advocate Mr.Kulkarni for the
Petitioner, learned A.P.P. Mr. Patil for the Respondent-State and
learned Advocate Ms. Bocarro for Respondent No.2. Perused record.
3) Rule. Rule made returnable forthwith and by consent of
the parties taken up for final hearing.
4) The facts giving rise to this Petition are that, Respondent
No.2 had filed a complaint bearing C.C.No.743/M/2002 in the 33 rd
Court of Metropolitan Magistrate, Ballard Pier, Mumbai wherein the
learned Magistrate passed an Order under Section 156 (3) of Cr.P.C.
Pursuant thereto, M.R.A. Marg police station registered an FIR
H.C. SHIV 901.w4396.2021.doc
bearing MECR No.14 of 2002 against the Petitioner along with Jayesh
Doshi and Dharmesh Solanki. On completion of the investigation,
said police filed a charge-sheet against the Petitioner's co-accused.
Later on, supplementary charge-sheet came to be filed against the
Petitioner arraying him as accused No.3. The case was numbered as
C.C. No.279/PW/2006. On a full fledged trial in the case, the 16 th
Court of Metropolitan Magistrate, Ballard Pier, Mumbai convicted
and sentenced the Petitioner and his co-accused under Sections 420,
465, 467, 471 read with 34 and under Section 120B of the I.P.C, vide
Judgment and Order dated 31st October 2013. The Petitioner and his
co-accused assailed their conviction and sentence by filing Criminal
Appeal Nos.134/2014 and 135/2014. The Respondent No.2 also filed
a Criminal Appeal No.465/2014, as no compensation was awarded in
the case. It was followed by Criminal Appeal No.855/2015 from
Respondent No.1, seeking for enhancement of the sentence.
5) The Sessions Court by a Judgment and Order dated 10 th
July 2017, dismissed the Appeals of the Petitioner and his co-accused
and upheld their conviction. The Appeals filed by the respondents
were allowed. The operative Order is as under :-
H.C. SHIV 901.w4396.2021.doc
"1. Appeal No.134/2014 filed by the appellant
Jayesh Pratap Doshi and Appeal No.135/2014 filed
by appellants Dharmesh Jivanlal Solanki and Hiten
Haridas Raichura are hereby dismissed.
2. Appeal No.465/2014 filed by the appellant
Nimish Ramdas Shah and Appeal No.855/2015
filed by the State are hereby allowed.
3. The substantive sentence passed by the
Metropolitan Magistrate, 16th Court, Ballard Pier in
C.C.No.279/PW/2006 against all the accused i.e.
Jayesh Pratap Doshi, Dharmesh Jivanlal Solanki
and Hiten Haridas Raichura by order and
judgment dtd. 31.10.2013 is hereby altered from
simple imprisonment to rigorous imprisonment.
4. The Respondent no.2 to 4 in Criminal Appeal
No.465/2014 Jayesh Pratap Doshi, Dharmesh
Jivanlal Solanki and Hiten Haridas Raichura are
hereby ordered to pay jointly or severally
compensation of Rs.10,00,000/- each (Rs. Ten
Lacks only) within three months from today and in
default to suffer one year rigorous imprisonment.
5. The bail bonds of appellant/accused nos.1 to 3
Jayesh Pratap Doshi, Dharmesh Jivanlal Solanki
and Hiten Haridas Raichura stands cancelled.
6. R & P be sent back to the trial court."
Sd/-.
(name)
Addl. Sessions Judge,
Sessions Court, Greater Mumbai.
H.C. SHIV 901.w4396.2021.doc
6) It is alleged that, the Petitioner, his co-accused and the
Respondent No.2 were present in the Sessions Court at the time of
pronouncement of the Judgment and Order. Thereafter, the learned
Additional Sessions Judge directed the Sheristedar present in the
Court to ask the police to take the Petitioner and his co-accused in
custody. Hence, co-accused Jayesh Doshi and Dharmesh Solanki did
not leave the Court premises, however, the Petitioner left the Court
premises on the pretext of talking to his lawyers, who were present.
Thereafter, the Petitioner did not return back to the Court and hence,
the learned Additional Sessions Judge passed the following Order :-
"Later on,
It is reported that, after the pronouncement of the
order, when the Sheristedar was directed to ask police to
take the appellants in custody, during the said period,
immediately, appellant Hiten Haridas Raichura, under
the pretext of talking with his Advocate left the Court
and till 4.10 pm did not appear.
Ld. Trial Court to immediately issue conviction
warrant and sent to execute the sentence."
sd/-
(name)
Addl. Sessions Judge,
Sessions Court, Greater Mumbai.
H.C. SHIV 901.w4396.2021.doc
7) It is alleged that by disobeying the Order of learned
Additional Sessions Judge and leaving the Court premises as stated
above, the Petitioner has committed the alleged offence under Section
224 of I.P.C. Hence, the Respondent No.2 filed the said Complaint
Case No.249/2018 against the Petitioner.
8) The learned Additional Chief Metropolitan Magistrate, 8 th
Court, (Esplanade), Mumbai recorded a verification statement of
Respondent No.2 and considered the report of Respondent No.1
police filed under Section 202 of Cr.P.C. The report indicated that no
offence under Section 224 of the I.P.C. is made out against the
Petitioner. However, the learned Magistrate having regard to the text
of the complaint and other material on record, passed the impugned
Order dated 10th April 2019 and directed to issue process against the
Petitioner. Aggrieved, the Petitioner filed a Criminal Revision
Application No.643/2019 and assailed the impugned Order of issue
process, questioning its correctness, illegality and propriety.
9) On perusing the record and hearing rival submissions, the
learned Additional Sessions Judge held that the impugned Order of
issue process does not suffer from any illegality, impropriety and
incorrectness and dismissed the revision. Hence, this Petition.
H.C. SHIV 901.w4396.2021.doc
10) Learned Senior Advocate Mr.Kulkarni for the Petitioner
emphatically submitted that, on the date when the Petitioner's Appeal
was dismissed, the Petitioner was not in the custody of the Court as
by virtue of the earlier Order, the Petitioner's conviction and sentence
was suspended and he was released on the bail in the same Appeal.
After pronouncement of the Judgment and Order in the said Appeal,
immediately, the Petitioner was not taken in physical custody by the
police. Therefore, just because the Petitioner went out of the Sessions
Court, his said act cannot be held as escape from a lawful custody of
the Court or police, which is an essential aspect to attract the offence
of Section 224 of I.P.C. The Order of issue process is not a speaking
Order meaning, it is not carrying the reasons to justify the passing of
said Order. In the backdrop, the Petitioner cannot be prosecuted for
the alleged offence of Section 224. To support the submissions, the
learned Senior Advocate cited a decision in Lalankumar Singh and
Othrs. vs. State of Maharashtras1 wherein it is held that, the Order of
issuance of process is not an empty formality. The Magistrate is
required to apply his mind as to whether sufficient ground for
proceeding exists in the case or not. The formation of such an opinion
is required to be stated in the Order itself.
1. 2022 SCC OnLine SC 1383.
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11) In contrast, the learned A.P.P. for the Respondent No.1-
State vehemently submitted that, on cancellation of the bail bonds of
the Petitioner, he was in judicial custody of the Sessions Court.
Therefore, the Petitioner was duty bound to return to that Court after
meeting with his lawyer. Withal, the Petitioner left the Court
uninformed and without a reason. Before that, the learned Additional
Sessions Judge had already directed the Court's Sheristedar to call the
police to take the Petitioner in custody and to send him to jail to
undergo the sentence. Therefore, the Petitioner's act of leaving the
Court post dismissal of his Appeal and cancellation of the bail bonds
is amount to escape from the custody of the Sessions Court. As such
there is a prima facie case against the Petitioner of having committed
the offence of Section 224 of I.P.C. Thus, both the impugned Orders
are sustainable in law. As such, the Petition be dismissed.
12) Learned Counsel Mr.Sharma for Respondent No.2
adopted the arguments of learned A.P.P. and stated that the Petition
be dismissed.
13) Considering the facts and circumstances of the case and
rival submissions, first of all it is necessary to have a look at the
provisions of Section 224 of I.P.C. which read as under :-
H.C. SHIV 901.w4396.2021.doc
"224. Resistance or obstruction by a person to his lawful
apprehension.--Whoever intentionally offers any
resistance or illegal obstruction to the lawful
apprehension of himself for any offence with which he is
charged or of which he has been convicted, or escapes or
attempts to escape from any custody in which he is
lawfully detained for any such offence, shall be punished
with imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
14) As stated in the cited case of State of Orissa vs. Purna
Chandra Jena2, said Section 224 has two distinct parts. The first
relates to resistance to apprehension and the second part relates to
escape from custody. In order to bring home the guilt of the accused
under first part, the prosecution is to prove the following ingredients :
(1) that the accused was charged or convicted;
(2) that he offered resistance or obstruction to his
apprehension;
(3) that such resistance or obstruction was illegal; and
(4) that the accused offered such resistance or obstruction
illegally.
When the offence changed is that of escape or attempt to escape from
custody, the prosecution is to prove the following:
2. 2005 SCC OnLine Ori 337
H.C. SHIV 901.w4396.2021.doc
(1) that the accused was taken into custody for commission of
an offence;
(2) that such detention in custody was lawful;
(3) that the accused escaped from such custody or made an
attempt to do so; and
(4) that the accused did so intentionally.
15) The word 'obstruction' appearing in said Section 224 is
not defined in the I.P.C. As stated in K J Aiyar Judicial Dictionary,
"one of the general meaning of the "obstruct" means, to impede,
hinder, retard, and in its legal sense of obstructing process under law,
it means to commit the punishable offence of intentionally hindering
the officers of the law in the execution of their duties. Mere
obstruction, therefore, does not carry the meaning or any idea of use
of force." Similarly, as stated in the same dictionary, "obstructing the
police" includes anything which makes it more difficult for the police
to carry out their duties and it is not confined to mere physical
obstructions."
15.1) In the case of Sundeep Kumar Bafna vs. State of
Maharashtra and Anr.3, in paragraph 9, the Hon'ble Supreme Court
considered the meaning of the word 'custody' as stated in various
dictionaries. Said paragraph 9 reads as under :-
3. AIR 2014 SC 1745.
H.C. SHIV 901.w4396.2021.doc
"Meaning of custody :-
9. Unfortunately, the terms 'custody', 'detention' or 'arrest'
have not been defined in the CrPC, and we must resort to few
dictionaries to appreciate their contours in ordinary and legal
parlance. The Oxford Dictionary (online) defines custody as
imprisonment, detention, confinement, incarceration, internment,
captivity; remand, duress, and durance. The Cambridge Dictionary
(online) explains 'custody' as the state of being kept in prison,
especially while waiting to go to court for trial. Longman
Dictionary (online) defines 'custody' as 'when someone is kept in
prison until they go to court, because the police think they have
committed a crime'. Chambers Dictionary (online) clarifies that
custody is the 'condition of being held by the police; arrest or
imprisonment; to take someone into custody to arrest them'.
Chambers' Thesaurus supplies several synonyms, such as
detention, confinement, imprisonment, captivity, arrest, formal
incarceration. The Collins Cobuild English Dictionary for Advance
Learners states in terms of that someone who is in custody or has
been taken into custody or has been arrested and is being kept in
prison until they get tried in a court or if someone is being held in a
particular type of custody, they are being kept in a place that is
similar to a prison. The Shorter Oxford English Dictionary
postulates the presence of confinement, imprisonment, durance
and this feature is totally absent in the factual matrix before us.
The Corpus Juris Secundum under the topic of 'Escape & Related
Offenses; Rescue' adumbrates that 'Custody, within the meaning of
statutes defining the crime, consists of the detention or restraint of
a person against his or her will, or of the exercise of control over
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another to confine the other person within certain physical limits
or a restriction of ability or freedom of movement'. This is how
'Custody' is dealt with in Blacks Law Dictionary, (9th ed. 2009) :-
"Custody- The care and control of a thing or person. The
keeping, guarding, care, watch, inspection, preservation or
security of a thing, carrying with it the idea of the thing being
within the immediate personal care and control of the person to
whose custody it is subjected. Immediate charge and control,
and not the final, absolute control of ownership, implying
responsibility for the protection and preservation of the thing in
custody. Also the detainer of a man's person by virtue of lawful
process or authority.
The term is very elastic and may mean actual imprisonment or
physical detention or mere power, legal or physical, of
imprisoning or of taking manual possession. Term "custody"
within statute requiring that petitioner be "in custody" to be
entitled to federal habeas corpus relief does not necessarily
mean actual physical detention in jail or prison but rather is
synonymous with restraint of liberty. U. S. ex rel. Wirtz v.
Sheehan, D.C.Wis, 319 F. Supp. 146, 147. Accordingly, persons
on probation or released on own recognizance have been held to
be "in custody" for purposes of habeas corpus proceedings."
15.2) Having thus considered the meaning of the word 'custody'
resorting to various dictionaries, in paragraph 10 the Supreme Court
held that, "A perusal of the dictionaries thus discloses that the
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concept that is created is the controlling of a person's liberty in the
course of a criminal investigation, or curtailing in a substantial or
significant manner a person's freedom of action. ..."
16) In the case in hand, from the operative Order under the
Judgment of the learned Sessions Judge as mentioned above, it can
be safely concluded that by dismissing the Appeal of the Petitioner,
directing to cancel his bail bonds and to take him in custody for the
offences for which his conviction was upheld, the learned Additional
Sessions Judge intended to send the Petitioner to jail with the help of
police and cause him to undergo the sentence imposed on him. This,
the learned Sessions Judge deemed lawful and necessary so that the
Judgments and Orders recorded by the trial Court and in the Appeal
are lawfully executed. However, by vanishing from the Sessions Court
under the pretext to talk to his lawyer, the Petitioner has caused an
intentional plus illegal obstruction to the process of apprehending
him by the police and taking him in their lawful physical custody to
lodge him in the jail, even though his conviction was upheld by the
Sessions Court. Said act of obstruction is clearly falling within the
meanings of the word "obstruct" and "obstructing the police" as
stated in K J Aiyar Judicial Dictionary and referred above.
H.C. SHIV 901.w4396.2021.doc
17) Secondly, when the Petitioner filed the Appeal challenging
his conviction and sentence, he obtained bail under Section 389 of
Cr.P.C., thus, the Petitioner subjected himself and his liberty to the
discretion of the Sessions Court and the judicial Orders that may be
passed in the Appeal. This option the Petitioner availed as he knew
that otherwise he would be in jail during the pendency of his Appeal.
As such, the Petitioner was aware that his bail would be operational
till pendency of the Appeal only. Meaning thereby, once the Appeal is
disposed of, the relief of said bail would come to an end by operation
of law and in particular, on dismissal of the Appeal, the Petitioner
shall immediately undergo the substantive sentence of imprisonment.
18) After dismissing the Appeal when the Court of the learned
Additional Sessions Judge cancelled the bail bonds of the Petitioner
and directed to call the police to take him into custody, the
Petitioner's liberty was subject to the Orders of the Sessions Court
and thus he was under restraint of the judicial Orders. As such, the
Petitioner shall be deemed to be in constructive custody of the
Appellate Court. However, the Petitioner escaped from the said lawful
custody on a false pretext of meeting with his lawyer. Finally, after 05
months, the Petitioner surrendered before trial Court on 15.12.2017.
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19) To fortify the aforesaid conclusion, a useful reference can
be made to a decision in Mohd. Azam Aslam Butt vs. State of
Maharashtras and Othrs4 cited by learned Advocate Ms. Bocarro for
Respondent No.2. In this case, the Petitioner was released from the
prison after he complied with the parole Order and furnished the bail
bonds. In compliance with the Order granting and extending the
parole leave, the Petitioner was to report back to the prison authority
but he did not. In this background, this Court held that non
surrendering to the prison authorities after the expiry of parole or
furlough leave period will amount to divergence from the standard
rules and regulations. Therefore, the said Petitioner was held guilty of
unlawfully departing from the legal custody and it is amounting to
escape from the legal custody.
20) Upshot of the aforesaid discussion is that, a clear case of
the offence punishable under Section 224 of I.P.C. has been made out
against the Petitioner. As such, the trial Court is correct in issuing the
process for the said offence and so the Sessions Court which
dismissed the Criminal Revision Application challenging the said
Order of issue process. Thus, both the impugned Orders are
4. Cri.W.P.No.951 of 2015 dtd.5/04/2016, BHC
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sustainable in law. In the result, the Petition is liable to be dismissed
and is dismissed, accordingly.
[SHYAM C. CHANDAK, J.]
21) After pronouncement of the judgment, the learned Senior
Advocate Mr.Kulkarni requested to stay this judgment and to
continue the interim relief to facilitate the Petitioner to impugn this
judgment before the Hon'ble Supreme Court. However, for the
reasons recorded in the judgment, the said request is rejected.
22) Learned Advocate for Respondent No.2 submitted that,
the Complaint Case No.249/SS/2018 is pending for more than 5
years. Hence, hearing and disposal of the said case may be expedited.
23) Considering the facts and circumstances of the case and
that, the said Complaint Case No.249/SS/2018 is pending for more
than 5 years, the learned Magistrate of the trial Court is requested to
expedite the hearing and disposal of the said case, if possible, without
affecting the other cases requiring expeditious hearing and disposal.
[SHYAM C. CHANDAK, J.]
