[Cites 17, Cited by 0]
Bombay High Court
Rajeev S/O Umashankar Dubey vs State Of Mah. Thr P.So Govt. Railway ... on 1 December, 2025
2025:BHC-NAG:13259-DB
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.4 OF 2020
Rajeev s/o Umashankar Dubey,
Aged 39 Years,
Occupation : Private Services,
R/o Plot No.87, Shramik Society,
Uttam Nagar, Gorewada Ring Road,
Nagpur - 440 013. .... APPLICANT
// VERSUS //
1. The State of Maharashtra,
The Police Station Officer,
Government Railway Police Station,
Nagpur.
2. Sandeep Annaji Gondane,
Aged : Major,
Occupation : Service - API,
Present and Pmt. Address: Near
Prabodhan Gitamandal Scho,
Civil Lines, Daryapur,
District Amravati. .... NON-APPLICANTS
-------------------------------------------
Mr. Dhruv Sirpurkar, Advocate h/f Mr. S. V. Sirpurkar,
Advocate for the applicant.
Mr. N. H. Joshi, APP for non-applicant No.1/State.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 19.11.2025
PRONOUNCED ON : 01.12.2025
JUDGMENT :
(PER : URMILA JOSHI-PHALKE, J.)
1. Admit.
2. Heard finally with the consent of the learned Counsel
of the parties.
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3. The present application is preferred by the applicant
for quashing of the First Information Report in connection with
Crime No.234/2019 registered with Railway Police Station,
Nagpur for the offence punishable under Section 224 of the
Indian Penal Code and charge sheet No.4953/2019 dated
24.04.2019 in consequent proceeding arising out of the same
bearing SCC No.12052/2019 pending before the learned Chief
Judicial Magistrate, Nagpur.
4. On 09.02.2019 at about 7.00 a.m., the applicant was
brought to the Railway Police Station, Nagpur by Police Constable
Dinesh Bhave, who was on patrolling duty in Sewagram express,
at the relevant time along with Shakil Abdul Sattar Siddhiqi to
lodge a report. It is alleged that the present applicant has
outraged the modesty of minor girl when she was travelling in
the train, and therefore, the offence under Section 354 of Indian
Penal Code (for short 'IPC') and under Section 8 and 12 of the
Protection of Children from Sexual Offences Act (for short
'POCSO Act') vide Crime No.223/2019 at Railway Police Station,
Nagpur was registered against the present applicant. Therefore,
he was taken into custody. He was sent for medical examination
along with the Head Constable Parmanand Wasnik B.No.59 and
Police Constable Hemand Nimbarte B.No.1160 at 7.29 a.m.
After medical examination, he was brought back to the Railway
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Police Station, Nagpur at about 8.37 a.m. The relevant entry was
taken into the station diary. When the applicant was present at
the Police Station, Police Constable Nitin Mankar and Bhojraj
Pradhan were deputed to keep watch on him. However, at about
1.45 to 2.15 p.m., the applicant escaped from the custody of the
Railway Police, and therefore, the present crime was registered
against him under Section 224 of IPC. On the basis of the
registration of the crime, the investigation was set into motion.
During the investigation, the statements of various witnesses
were recorded and after completion of the investigation, the
charge sheet was filed against the present applicant.
5. The present application is filed by the applicant on the
ground that he was never arrested, and therefore, he was never
in the custody of the police. His arrest was never effected and
neither any family member was informed, nor any arrest
panchnama was drawn. In fact, there was no arrest effected by
the police authority, and therefore, the entire allegation levelled
against the present applicant is baseless, and no prima facie case
is made out.
6. Heard learned counsel Mr. Dhruv Sirpurkar for the
applicant, who submitted that the applicant was travelling in
Sewagram express from Mumbai to Nagpur. During the
intervening night of 08.02.2019, the alleged incident occurred at
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12.30 a.m. The train reached at Nagpur in the morning of
09.02.2019. The applicant was brought to the Police Station
along with the complainant. At 7.29 a.m., he was taken for
medical examination and again the applicant was brought to the
Police Station. The First Information Report (for short 'FIR') was
registered at Railway Police Station, Nagpur at about 1.29 p.m.
on the basis of information received under Section 354 of IPC
and under Section 8 and 12 of POCSO Act. Despite the
complainant and the applicant being brought to the Railway
Police Station, Nagpur in the morning on 7.29 a.m. The FIR
reflects that the information was received on 1.21 p.m., raising
doubt on the conduct of the concerned Police Officer. The
applicant, as per the allegation, left the Police Station at about
1.45 p.m. to 2.15 p.m. On 09.02.2019, Railway Police Station,
Nagpur, forwarded a letter to Lohmarg Police Station,
Aurangabad, informing about the registration of '0' FIR
pertaining to an incident which allegedly occurred in the
jurisdiction of the latter Police Station i.e. the Lohmarg Police
Station, Aurangabad. After an inordinate delay of two days on
11.02.2019, the present FIR No.234/2019 was registered for the
offence punishable under Section 224 of IPC, alleging that the
applicant fled away from Railway Police Station on 09.02.2019
between 1.45 to 2.15 p.m. He submitted that in fact, the
applicant was never in the custody of the police and there was no
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lawful detention therefore, the offence under Section 224 of IPC
is not made out. In support of his contention, he placed reliance
on Sundeep Kumar Bafna Vs. State of Maharashtra and
another reported in (2015) 3 SCC (Cri) 558.
7. Per contra, learned APP strongly opposed the said
contention and submitted that initially, the crime was registered
against the present applicant under Section 354 of IPC and under
Sections 8 and 12 of the POCSO Act. As the alleged crime was
committed by the present applicant when he was travelling by
train therefore, the Police Constables, who were deputed in the
said train taken him into custody and after reaching at Nagpur,
complainant as well as the applicant was brought to the Police
Station, thereafter, he was referred for the medical examination
and the further proceedings were carried out, but the applicant
fled away from the Police Station, and therefore, the present
crime is registered against him. Thus, though formal arrest was
not there, he was in the custody of the Railway Police and he fled
away from their custody and therefore, the offence is made out
against the present applicant. In view of that, the application
deserves to be rejected.
8. On hearing both sides and on perusal of the entire
investigation papers, it reveals that the present applicant was
taken into custody by the Railway Police as the complaint was
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made by one Shakil Abdul Sattar Siddhiqi R/o Murmadi, District
Bhandara that he along with his daughter was proceeding from
the train Sewagram express towards Nagpur. At about 00.30
hours, the present applicant has outraged the modesty of a
minor girl. On the basis of the complaint of the complainant, a
crime was registered against the present applicant. As the crime
was registered against him, therefore, on 09.02.2019 at about
7.29 a.m. by taking entry in the general diary along with Head
Constable B. No. 59 and Police Constable B. No.1160, the
present applicant was referred for pre-arrest medical
examination. At about 8.37 p.m., he was brought back after his
medical examination and he was asked to be there, but his
formal arrest was not there, his formal arrest was on 23.03.2019
at about 9.00 p.m., as per the arrest panchanama. Much reliance
was placed by the learned counsel for the applicant that the
applicant was not formally arrested and therefore, the offence
under Section 224 is not made out as the detention of the
accused is not within the expression of the custody.
9. The vital question before the Court is whether the
applicant was in a custody and fled away from the Police Station.
There is no dispute as to the fact that in respect of another crime
bearing No.223/2019 was registered against the present
applicant under Section 354 of IPC and under Sections 8 and 12
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of the POCSO Act. On 09.02.2019 in the morning, the applicant
and the complainant approached to the Police Station.
Thereafter, on 09.02.2019 vide General Diary (G. D.) entry No.9,
the applicant along with two Police Constables was forwarded for
the pre-arrest medical examination. After pre-arrest medical
examination, he was brought to the Police Station on
09.02.2019. Thereafter, the applicant was asked to wait for
some time. Admittedly, the applicant was not found in the Police
Station after 1.45 p.m. Though the formal arrest was not
effected of the applicant, but the control of the applicant was
with Nagpur Railway Police. Whether the accused was in custody
or not is to be considered in view of the various decisions. "It is
well settled that 'police custody' does not necessarily mean
custody after formal arrest. It also includes 'some form of police
surveillance and restriction on the movements of the person
concerned by the police'. The word 'custody' does not necessarily
meant detention or confinement. A person is in custody as soon
as he comes into the hands of a police officer." Division Bench of
the Orissa High Court in Paramhamsa Jadab vs. State of
Orissa MANU/OR/0057/1964 had discussed the meaning of
"police custody" in the light of Sections 26 and 27 of Evidence
Act and observed that it is now well settled that "police custody"
for the purpose of Section 26 of the Evidence Act does not
commence only when the accused is formally arrested but would
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commence from the moment when his movements are restricted
and he is kept in some sort of direct or indirect police
surveillance. In Lay Maung v. Emperor AIR 1924 Rang 173 :
1924 Cri LJ 381 the learned Judge pointed out the danger of
construing the expression "police custody" in Section 26 of the
Evidence Act in a more narrow technical sense as commencing
from the time when the accused is formally arrested. The
learned Judge observed that if such a view be taken it will be
very easy for the police to evade that section and that the
correct interpretation would be that.
As soon as an accused or suspected person comes into
the hands of a police officer he is, in the absence of any
clear and unmistakable evidence to the contrary, no
longer at liberty and is therefore in "custody" within the
meaning of Sections 26 and 27 of Evidence Act." In
Haroon v. Emperor AIR 1932 Sind 1490 : 1933 Cri
LJ 129 and Pharho Shahli v. Emperor AIR 1932 Sind
201 : 1933 Cri LJ 147 it was pointed out that even
indirect control over the movements of suspects by the
police would amount to "police custody" within the
meaning of that section. In Gurdial Singh v. Emperor
MANU/LA/0176/1932 : AIR 1932 Lah 609 : 1932
Cri LJ 756 and in Re Edukondalu
MANU/AP/0070/1957 also the same principles were
emphasised and it was observed that there may be police
custody without formal arrest. In this connection some of
the observations of the Supreme Court in State of Uttar
Pradesh V. Deoman Upadhya MANU/SC/0060/1960
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: 1960 Cr LJ 1504, para 12 may also be noticed: The
majority of Judges observed:
Section 46 of the Code of Criminal Procedure does
not contemplate any formality before a person can
be said to be taken in custody : submission to the
custody by word of mouth or action by a person is
sufficient. A person directly giving a police officer by
word of mouth information which may be used as
evidence against him may be deemed to have
submitted himself to the custody of the police officer
within the meaning of Section 27 of the Indian
Evidence Act.
10. The Full Bench of the Madras High Court in Roshan
Beevi Vs. Joint Secretary to the Government of Tamil Nadu
MANU/TN/0192/1984 held that the terms "custody" and
"arrest" are not synonymous terms. It is true that in every arrest
there is a custody, but not vice versa. A custody may amount to
an arrest in certain cases but not in all cases.
11. In the case of Sundeep Kumar Bafna referred by the
learned counsel for the applicant wherein also it is observed by
the Hon'ble Apex Court that "unfortunately, the terms 'custody',
'detention' or 'arrest' have not been defined in the Code of
Criminal Procedure, 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;
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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.
12. The 'Custody' is defined in Black's Law
Dictionary, (9th ed. 2009) - 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
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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.
13. Thus, a perusal of the dictionaries meaning discloses
that the concept that is created is the controlling of a person's
liberty in the course of a criminal investigation, or curtailing a
substantial or significant manner a person's freedom of action.
The Full Bench of the High Court of Madras in Roshan Beevi Vs.
Joint Secretary MANU/TN/0028/1983 and also the Apex
Court in the decision of Directorate of Enforcement V.
Deepak Mahajan MANU/SC/0422/1994 considered the
meaning of arrest, detention and custody. Thus, taking of the
person into judicial custody is followed after the arrest of the
person concerned by the Magistrate on appearance or surrender.
14. As to what amounts to the expression "custody" is also
time and again settled in the various judgments including State
of Andhra Pradesh V. Gangula Satya Murthy;
MANU/SC/0371/1997 and A. N. Venkatesh and another V.
State of Karnataka; MANU/SC/0468/2005 wherein it has
been clarified that the word "custody" does not mean formal
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custody, which includes any kind of surveillance, restriction or
restraint by the police. Even if the accused was not "formally"
arrested at the time when the accused gave the information, the
accused was, for all practical purposes, in the custody of the
police.
15. Relying upon the said ratio laid down by the Hon'ble
Apex Court herein the present case also, though the accused was
not formally arrested, but his surveillance, his control was with
the Nagpur Railway Police and the restrictions were on the
present applicant regarding his movement. Therefore, the
contention of the applicant that he was not in custody is not
sufficient. The documents that the General Diary entry
specifically shows that he was under the control of the police and
therefore, he was referred for the medical examination. Merely
because he was not formally arrested, it cannot be said that he
was not in custody. On the contrary, in view of the observation
in the catena of decisions, the control of the present applicant
was with the police. There was surveillance over him of the
police and in view of the Black's Law Dictionary, he was in the
custody of the police. The investigation papers shows that when
he was under the control of the police and there was surveillance
of the police over him, he has fled away from the Police Station
and therefore, the offence under Section 224 of IPC was made
out.
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16. In the light of the above observation and various
statements recorded during the investigation, it is sufficiently
shows that the applicant fled away from the Police Station. His
custody was with the police is established by the investigation
papers, in view of the General Diary entry bearing No.9/2019
taken on 09.02.2019 at 7.29 p.m.
17. In the light of the above facts and circumstances of
the case, a prima facie case is made out against the present
applicant and it is established that the applicant intentionally
offered his resistance to the lawful apprehension of himself for
any offence with which he was charged or which he has been
escaped from the custody of police, in which he is lawfully
detained for the offence committed by him under Section 354 of
IPC and under Sections 4 and 8 of the POCSO Act. Thereby he
has committed an offence punishable under Section 224 of the
IPC. Thus, prima facie case is made out against the present
applicant. In view of that, the application deserves to be
rejected. Accordingly, we proceed to pass following order:
ORDER
The application is hereby rejected.
(NANDESH S. DESHPANDE, J) (URMILA JOSHI-PHALKE, J)
Signed by: Mr. A.R. Sarkate Sarkate.
Designation: PA To Honourable Judge
Date: 01/12/2025 17:56:26
