Bombay High Court
Vinit Omkar Dixit vs State Of Maharashtra on 8 October, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-AS:39948-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 17742 OF 2024
Vinit Omkar Dixit,
Age - 33 Years,
R/at : Room No. 704, Laxmi Society, New
Mulund Road, Goregaon (W), Mumbai. .. Petitioner
Versus
The State of Maharashtra
(Through Antop Hill Police Station) .. Respondent
...
Mr. Ali Kaashif Khan Deshmukh a/w Ms. Snigdha Khandelwal,
Ms. Hitanshi Gajaria, Ms. Bhagyashree Sortur, for the
Petitioner.
Dr. Ashvini A. Takalkar, A.P.P., for the State-Respondent.
Mr. Dattatraya Dhume, P.I./I.O. and Mr. Sanjay Patil, P.S.I.,
Antop Hill Police Station, are present.
...
CORAM : NITIN W. SAMBRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 3rd OCTOBER 2024
PRONOUNCED ON : 8th OCTOBER 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
1. The Petitioner is seeking declaration that, his
arrest is illegal and is in violation of his fundamental rights,
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guaranteed under Article 21 and 22 of the Constitution of
India, in relation to the FIR No. 186 of 2024 dated 06.04.2024,
registered at Antop Hill Police Station, for the offence
punishable under Section 307 of the Indian Penal Code, 1860,
read with Section 3 and 25 of the Arms Act, 1959. It is also
prayed that the subsequent remand orders may also be
declared as null and void, since they are passed in complete
violation of the constitutional mandate.
2. It is the case of the Petitioner that, he came to be
apprehended on 18.04.2024 in relation to the FIR registered
on 06.04.2024. After his arrest, Police Custody Remand was
sanctioned till 20.04.2024 and from 20.04.2024 to
02.05.2024 he has been in judicial custody. Though he had
filed Bail Application before the Additional Sessions, Judge at
Greater Mumbai, it was rejected on 24.07.2024.
3. The FIR which has been filed at the instance of
complainant Ms. Vasanti Ganesh Kadam alleges that, she has a
son named Akash, age 30 years, is residing in a rented fat
located at Navtarun Naik Nagar, near Antop Hill Church. He
was working as Mathadi Labour and he used to occasionally
visit her at Virar. The first informant being a mother, used to
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call regularly to the victim and check his whereabouts. When
she called him on 05.04.2024 at 11.00 p.m., the victim Akash
did not receive her call. On 06.04.2024, one Police Sub
Inspector from Antop Hill Police Station contacted her on her
mobile, informing her that her son Akash had been shot and
injured by unknown person. The victim was seriously injured.
He sustained a serious gunshot wound on the left side of his
stomach and was undergoing surgery. The first informant
therefore lodged a complaint against unknown persons, who
has shot the victim Akash and caused serious injuries. As a
result of her complaint, C.R. No. 186 of 2024 came to be
registered for the offence as mentioned herein above.
4. It is contention of the Petitioner that, as per the
interrogation of Vivek Devraj Shettiyar (Accused No.1) by the
prosecution on 16.04.2024, he has allegedly disclosed that he
had committed the crime by hatching conspiracy with other
accused Narendra Jodiya (Accused No.6), Anshi @ Farin Vivek
Shettiyar (Accused No.2), Dhirajkumar Bhavarlal Pahadiya
(Accused No.4), Vinit Omkar Dixit (Accused No.5) i.e. the
present Petitioner.
5. It is the contention of the Petitioner that, he has
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been falsely implicated in the said offence. He does not have
any role to play in the said offence. He has not been named in
the FIR and even in the charge-sheet no particular role as such
is attributed by the prosecution to him. His role has been
disclosed by one witness namely Ajay Lade. According to the
Petitioner the entire incident has occurred due to the dispute
between the victim Akash Kadam and accused No.1. He
became acquainted with the accused No.1 when he was in
Arthur Road Jail in a dispute with an individual named Akash
Javai and during the said period he developed friendship with
accused No.1.
6. It is his contention that, there are various financial
transactions between the victim Akash Kadam and accused
No.1. However, he has no role to play in the incident on the
basis of which he has been arrested.
7. It is the contention of the Petitioner that, there is
an abject violation of Section 50 of the Code of Criminal
Procedure ("Cr.P.C."), while effecting his arrest. He has not
been communicated particulars of offence for which he has
been arrested, neither has he been informed about his rights to
be released on bail, in order to afford him opportunity to make
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arrangements for sureties on his behalf. Even the record
discloses that no such information as contemplated under
Section 50 of the Cr.P.C. has been given to the Petitioner. The
arrest panchanama of the Petitioner which is annexed to the
reply-affidavit filed by the prosecution, discloses that in
Column No.8, the grounds of arrest, which are required to be
filled in, have also been kept blank.
8. The Petitioner is relying on the Judgment of the
Hon'ble Apex Court in case of Pankaj Bansal V/s. Union of
India And Ors., reported in 2023 SCC OnLine SC 1244 and
Prabir Purkayastha V/s. State (NCT of Delhi), reported in
2024 SCC OnLine SC 934. The Petitioner has also relied on the
Judgment of this Court in case of Mahesh Pandurang Naik V/s.
The State of Maharashtra And Anr., passed in Criminal Writ
Petition (ST) No. 13835 of 2024 alongwith Interim Application
(ST) No. 14637 of 2024 and Manulla M. Kanchwala V/s. The
State of Maharashtra, passed in Criminal Writ Petition No.
3276 of 2024.
9. In support of his contentions that, due to non-
adherence of Section 50 of the Cr.P.C.; and failure to
communicate the grounds of arrest, his detention in the
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custody has become illegal, since his fundamental rights
guaranteed under Article 21 and 22 of the Constitution of
India have been violated, the learned counsel for the Petitioner
has placed on record the copies of the Judgments of the cases
mentioned hereinabove.
10. In view of the grounds raised by the Petitioner, the
State Authorities were already directed to file the reply-
affidavit vide order dated 02.09.2024. In response to the said
order, the Police Inspector, Antop Hill Police Station, Mumbai,
has filed affidavit on 18.09.2024. In the said affidavit, the
concerned police officer has stated that, though the complaint
was lodged against unknown persons, during the course of
investigation one live cartridge, one empty cartridge, one
magazine, one kingfisher beer bottle, two black coloured
slipper and the clothes of injured were seized.
During the course of investigation Ajay Rahul Lade
disclosed that accused No.3 Parag Gohil supplied the weapon
to accused No.1 Vivek Shettiyar and Vivek Shettiyar fired
bullet on Akash, on the left side of his stomach with intention
to kill him. It is admitted in the affidavit that, the Petitioner
was arrested on 18.04.2024 at about 02.03 a.m. and while
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making the arrest of the Petitioner the formalities as laid down
by the Hon'ble Apex Court in the case of D. K. Basu were
adhered to. Accordingly, entry in the Station Diary and the
Case Diary came be to recorded. The relatives of the Petitioner
were informed through telephone about his arrest. The Station
Diary and the Case Diary entries have been placed on record,
which disclose that, intimation regarding the arrest of the
Petitioner was given to his wife Ridhima Dixit.
11. In para No.8 of the affidavit, the Police Inspector
Antop Hill Police Station, Mumbai, has categorically stated
that, the present Petitioner has been apprehended in the
crime, as he is acquainted with the main accused and since it
was revealed during the investigation that, the Petitioner had
connived and assisted co-accused in executing the crime.
Apart from that, there is nothing on record which discloses
that the Detaining Authority had in fact adhered to the
procedure prescribed under Section 50 of the Cr.P.C., before
effecting arrest of the Petitioner.
12. It is the trite law that, before causing arrest of a
person without warrant, the full particulars of the offence in
which he is arrested, has to be communicated to him
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forthwith. Failure in following the mandate of statutory and
constitutional provisions of law, has resulted in deprivation of
his personal liberty and violation of constitutional rights. The
failure to provide the information about grounds of arrest, has
resulted in depriving the Petitioner of his legal right to make
representation and make arrangements for his bail and
sureties. If the arrest itself is not conducted by adhering to the
provisions of law, the detention of such person is rendered
illegal.
13. In the present case undoubtedly the Arrest Form
discloses that even the reasons of arrest have not been
communicated to the Petitioner much less the grounds of
detention.
14. Over and above all, the Police Inspector, Antop Hill
Police Station, has accepted in his affidavit that only Station
Diary and General Diary entries were taken therefore, there is
no communication of grounds of arrest to the Petitioner. As
observed by the Hon'ble Apex Court, as well as this Court in
the judicial pronouncements on the very issue. In the
Judgment of Prabir Purkayastha V/s. State (NCT of Delhi)
(Supra) the Hon'ble Apex Court has been pleased to hold in
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para No.20 as under :
"20. Resultantly, there is no doubt in the
mind of the Court that any person arrested
for allegation of commission of offences
under the provisions of UAPA or for that
matter any other offence(s) has a
fundamental and a statutory right to be
informed about the grounds of arrest in
writing and a copy of such written grounds of
arrest have to be furnished to the arrested
person as a matter of course and without
exception at the earliest. The purpose of
informing to the arrested person the grounds
of arrest is salutary and sacrosanct
inasmuch as, this information would be the
only effective means for the arrested person
to consult his Advocate; oppose the police
custody remand and to seek bail. Any other
interpretation would tantamount to diluting
the sanctity of the fundamental right
guaranteed under Article 22(1)of the
Constitution of India."
15. When a similar issue fell for consideration before
the Division Bench of this Court in case of Mahesh Pandurang
Naik V/s. The State of Maharashtra And Anr., (Supra), this
Court has been pleased to hold that the decision of the Hon'ble
Apex Court in case of Pankaj Bansal V/s. Union of India And
Ors. and Prabir Purkayastha V/s. State (NCT of Delhi) , is now
the law of the land, in the wake of Article 141 of the
Constitution of India, which binds all the subordinate Courts
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within the territory of India. Therefore, in view of the
authoritative pronouncement of the Hon'ble Apex court, it was
held that since the grounds of arrest were not furnished to the
Petitioner in writing and the column No.8 of the Surrender
Form, produced before the Court was not filled in, the arrest of
the Petitioner was declared to be illegal and in gross violation
of his fundamental rights.
16. It is also observed that, all the arrests effected
after 03.10.2023 have to ensure compliance of the law laid
down by the Hon'ble Apex Court, in case of Pankaj Bansal V/s.
Union of India (Supra). The arrest which is effected without
following the procedure prescribed, amounts to violation of
mandate of Article 22(1) of the Constitution of India. Even in
the present case, we do not have any hesitation in holding that
the Respondent No.1 has failed to adhere to the guidelines of
the Hon'ble Apex Court, as laid down in the case of Pankaj
Bansal V/s. Union of India (Supra), which has resulted in
violation of the fundamental rights of the Petitioner, making
his detention illegal. Hence, we pass the following order :
: ORDER :
(i) The Writ Petition is allowed.
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(ii) It is declared that, the arrest of the
Petitioner in FIR No. 186 of 2024 dated
06.04.2024 is illegal and in gross violation of
the fundamental rights of the Petitioner
guaranteed under Article 21 and 22 of the
Constitution of India.
(iii) The subsequent remand orders dated
18.04.2024 and 02.05.2024 passed by the
learned Judicial Magistrate, Kurla, are
declared to be null and void, as the same
being in violation of constitutional mandate
as well as not in compliance of Section 50 of
the Cr.P.C.
(iv) Upon setting aside the Remand Orders, the
Petitioner is entitled to be released from the
custody on furnishing bail bonds to the
satisfaction of the Trial Court.
(v) The Writ Petition stands disposed off.
(MANJUSHA DESHPANDE, J.) (NITIN W. SAMBRE, J.)
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