Amit Bhandari vs State & Ors.
2013 Latest Caselaw 3405 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(CRL.) 482/2012
                                               Decided on: 02.08.2013

       AMIT BHANDARI                                ..... Petitioner
                                       Appellant in person

                          versus

       STATE & ORS.                                  ..... Respondents
                          Through:     Mr. Rajesh Mahajan,
                                       Additional Standing Counsel
                                       for the State with SI Satish,
                                       P.S. N. Rohini, ASI Prempal
                                       P.S. Kanjhawala and ASI
                                       Krishna, PS Mangol Puri.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. This is a writ petition under Article 226 of the Constitution of

India filed by the petitioner for taking appropriate punitive action

against the respondent for violation of fundamental rights of

petitioner under Article 14, 21 and 22 of the Constitution of India

caused by not adhering to statutory guidelines necessary to be

followed before arresting a person and thereby causing immense

mental and physical harassment to the petitioner and also for giving a

compensation of Rs.20 lacs towards the torture caused to him.

2. Factual matrix of the case is:-

FIR No. 90/2010 under Section 498A/406 IPC dated 10th April,

2010, PS North Rohini was registered on the complaint of Smt.

Deeksha Bhandari pursuant to the recommendation of CAW Cell,

Outer District, Delhi. Smt. Deeksha Bhandari alleged in her

complaint that she was married with the petitioner Sh. Amit Bhandari

on 27th June, 2009 at Delhi. Her husband is based in Pune working in

a lawyer's company. Soon after marriage, her mother-in-law and her

husband started taunting and abusing her and her parents over the

quality of things provided by them in the marriage. Her mother-in-

law took away all the jewellery including Mangal Sutra. She was

continuously subjected to cruelty on account of dowry. On the

demand of her husband, her father has deposited Rs.1 lac in the

account of her husband but the cruelty continued. On 28 th August,

2009, her husband abused her and gave her beatings for not bringing

enough and quality things from her parents. As such, the FIR was

registered.

3. The punitive action against the respondent is sought basically

on the ground that in pursuance to the complaint lodged by wife of

the petitioner Deeksha Bhandari, FIR was registered against the

petitioner. He had filed an application for anticipatory bail wherein

direction was given to serve seven days notice of pre-arrest.

However, without serving pre-arrest notice, respondents No.2&3

visited the house of parents of the petitioner on 17 th June, 2010 in

order to arrest him without any arrest warrant or search warrant. The

respondents were very well aware that petitioner was residing in

Bangalore, as such, there was no need to visit Pune to search the

petitioner. It was, however, alleged by the respondent that they had

come to Pune in order to serve pre-arrest notice. If that was so, the

notice could have been sent by registered post as was earlier done

while sending notice under Section 160 Cr.P.C. Without any arrest

warrant or search warrant, house of the parents of the petitioner was

raided only with a view to harass the petitioner and his family

members and to pressurise them to extort money. In the daily diary

entry, it is nowhere mentioned that they were visiting Pune to serve

pre-arrest notice. On the contrary, the DD entry merely states that the

purpose of visit was investigation.

4. Due to illegal acts of the respondents in raiding the house of

petitioner at Pune on 17th June, 2010, father of the petitioner was

forced to travel from Bangalore to Pune in ill condition which

resulted in mental trauma. He was a heart patient. Due to mental

trauma and harassment done by the respondents, father of the

petitioner suffered a massive heart attack and he passed away on 1 st

July, 2010.

5. The petitioner preferred a private complaint bearing Crl. Misc.

Application No. 601/2010 before learned JMFC Cantonment, Pune

for the illegal raid and harassment conducted by the respondent at

Pune due to which his father passed away. The learned JMFC

directed for investigation under Section 202 Cr.P.C. Thereafter

processes were issued against the respondents and the complainant

for knowingly causing death of father of the petitioner. The

respondent filed criminal writ petition before the High Court of

Judicature at Bombay. Vide order dated 19th December, 2012, the

Bombay High Court allowed the application preferred by the

respondent and quashed the issuance of process. The petitioner has

filed special leave petition before the Supreme Court which is

pending.

6. The petitioner filed Writ Petition (Criminal) No. 1085/2010

before this Court on 24th July, 2010 for quashing of FIR or in the

alternative to transfer the FIR to Bangalore. The writ petition was

dismissed on 4th May, 2011. SLP is pending before the Hon'ble

Supreme Court.

7. In pursuance to the directions of the Court, petitioner appeared

in person before learned MM, Rohini Court, Delhi on 4th June, 2011.

However, in gross violation of the Court order dated 12 th May, 2010,

whereby the respondents were directed to serve seven days' pre-arrest

notice, the petitioner was arrested. Permission of arrest was taken

from ACP which is in gross violation of standing order 330 of 2007

issued by the Commissioner of Police. The court hearing was over by

11:30 a.m. and immediately thereafter the respondents No. 2&3

arrested the petitioner from the Court premises but he was detained at

police station till 5:00 pm and was not produced before the learned

Magistrate which clearly shows the malicious intention so that

petitioner could not seek bail on the same day. Respondent No. 2

took the petitioner for medical examination under the instructions of

respondent No.3, however, the medical examiner did not record the

medical history of the petitioner and copy of the report was also not

handed over to the petitioner, which is in violation of the guidelines

given by Hon'ble Apex Court in D.K. Basu Vs. State of West Bengal.

The petitioner was not informed about the charges for which he was

being arrested, which is in violation of Section 5 Cr.P.C., Article

22(1) of Constitution of India and NHRC Guidelines for arrest. The

family of the petitioner was not informed about the place of detention.

The memo of arrest is forged as neither the petitioner nor his mother

signed the said forged document. Due to illegal arrest of the

petitioner, he was thrown out of job. His medical condition

deteriorated and now, he is without any job and is fully dependent on

the family members. Hence this writ petition.

8. Status report was filed by respondent No.1 wherein it was

stated that:-

FIR No.90/2010, u/S 498A/406 IPC dated 10.04.2010, Police

Station North, Rohini was registered on the complaint of Smt.

Deeksha Bhandari, pursuant to the recommendation of the CAW Cell,

Outer District, Delhi. After registration of FIR, the investigation was

taken up by IO W/ASI Krishna, the respondent No. 2. Petitioner Sh.

Amit Bhandari moved Anticipatory bail application before Sessions

Court, Rohini. As the permission for arrest was not on the file, Ld.

Sessions Court vide order dated 12.05.2010, directed that in case of

arrest of applicant, seven working days notice be given to him. On

18.05.2010, respondent No. 2 moved the file for seeking approval for

arrest from ACP through the SHO concerned. On 21.05.2010, the

approval for arrest of Sh. Amit Bhandari was given by ACP/Prashant

Vihar. A notice dated 28.05.2010 was sent to Sh. Amit Bhandari to

join the investigation. In response Sh. Amit Bhandari sent a letter

dated 2.06.2010 by post expressing his inability to come to Delhi to

join the investigation on the ground of ill health of his father. On

17.06.2010, the IO W/ASI Krishna along with other Police personnel

and complainant went to Pune and after taking assistance of Local

Police of Pune went at residence of petitioner at Flat No. 54, Building

Lotus Parmar Garden, Pune and enquired about the petitioner but the

petitioner Amit Bhandari was not found. Sh. Kapil Bhandari, brother

of the petitioner Amit Bhandari, was present at the residence. He was

explained by the IO that the permission for arrest of Sh. Amit

Bhandari has been obtained on file and Police intends to arrest the

petitioner for the investigation of case. A seven days notice for arrest

in respect of Amit Bhandari was also given but he refused to receive

it. The notice was left at the house of petitioner by the IO W/ASI

Krishna. The IO again visited the house of petitioner on next day,

i.e., 18.06.2010 along with complainant and with assistance of local

Police of Pune but could not find the petitioner. Search for recovery

of Istridhan was also conducted at the house but complainant could

not find her Istridhan in the house. A memo regarding this search

was also prepared by the I.O. in this regard. The petitioner herein

filed WP(Crl.) No. 1085/2010 titled Amit Bhandari Vs. Deeksha

Bhandari, IO W/ASI Krishna and State before this Court with prayer

for quashing of FIR or in the alternative transfer of investigation to

the concerned police station having jurisdiction. This Court vide

order dated 26th July, 2010 directed that petitioner shall not be

arrested till further orders. The petition was finally dismissed vide

order dated 9th March, 2011. On 4th June, 2011 at 12:45 p.m.

petitioner Amit Bhandari was arrested by the IO at Delhi. At the time

of arrest, petitioner was duly informed about the grounds of arrest.

Smt. Adarsh Bhandari, mother of petitioner was present along with

petitioner at the time of arrest. She was told about the particulars and

details of arrest of her son Sh. Amit Bhandari. She also signed the

Arrest Memo prepared by the IO regarding arrest of the petitioner in

the case. After the arrest, petitioner was got medically examined at

Baba Saheb Ambedkar Hospital, Rohini, Delhi. Vide MLC No.

4363/2011 no fresh external injury was found on the person of

petitioner. Petitioner was produced before Ld. Duty Magistrate,

Rohini Courts on the same day and was remanded to judicial custody.

On 06.06.2012 bail application moved by petitioner was dismissed by

Ld. Metropolitan Magistrate, Mahila Court, Rohini Courts, Delhi.

Thereafter on 10.06.2011 bail application of petitioner was dismissed

by Ld. District Judge & Addl. Sessions Judge, Rohini Courts. On

15.06.2011 petitioner was granted bail by this Court, on the ground

that petitioner agreed to deposit a sum of Rs.1.5 lacs towards

Istridhan in the shape of Fixed Deposit in the name of trial court.

9. A Criminal Miscellaneous application bearing No. 601/2010

was filed by petitioner Amit Bhandari against Deeksha Bhandari

(wife of petitioner), Ramesh Sethi (father of Deeksha), IO W/A.S.I.

Krishna and ASI Prempal u/s 156(3) Cr.P.C. before Ld. Junior

Judicial Magistrate, First Class, Pune, Maharashtra with the prayer for

registration of FIR u/s 302 or 304/120B/166/34 IPC. The Court vide

order dated 09.09.2011, issued process u/s 304/120-B/166 IPC

against the IO W/ASI Krishna, ASI Prempal. Further non-bailable

warrants against the above Police officials were issued by the Pune

Court. Against this order, an appeal vide Criminal Application No.

1204/2011 was filed before High Court, Mumbai by IO W/A.S.I.

Krishna and A.S.I. Prempal. The Mumbai High Court vide order

dated 23rd November, 2011 has given ad-interim relief. The

investigation of case FIR 90/2010 has been completed and charge-

sheet is being filed in Court. In view of the above, it is submitted that

there is no merit in the petition and it deserves to be dismissed.

10. Respondent No.2&3 filed their affidavits reiterating the

averments made in the status report.

11. I have heard the petitioner in person and Sh. Rajesh Mahajan,

Additional Standing Counsel for the State at great length.

12. During the course of arguments, the petitioner has reiterated the

averments made in the petition and that his arrest was illegal.

Although, as per the standing order, it was incumbent upon the

respondent to have obtained sanction from the DCP concerned,

however, sanction was obtained from the ACP. Moreover, seven

days' prior notice was required to be served upon the petitioner but

without serving any notice, the police officials went to the house of

his parents on 17th June, 2010 and wanted monetary consideration

from his father. He was harassed to such an extent that he ultimately

expired for which private complaint was filed before the Pune Court.

Thereafter, the petitioner was arrested illegally in violation of the law

of arrest as provided under Section 41A of Cr. P.C. and guidelines

laid down by Hon'ble Supreme Court. The pre-arrest notice is on a

plain piece of paper without any attestation and is fabricated one.

The arrest memo is also fabricated inasmuch as neither the petitioner

nor his mother signed the same. He was not informed about the

grounds of arrest nor his mother was informed about the place of his

detention. Due to illegal acts of the respondent, the petitioner has

suffered immensely and as such, action is required to be taken against

them.

13. Repelling the contention of the petitioner, learned Additional

Standing Counsel for the respondent, at the outset, challenged the

maintainability of the writ petition on the ground that disputed

questions of facts are involved, as such, the writ petition does not lie.

Moreover, it was submitted that there is no violation of any of the

procedure prescribed by law. As per the standing order, ACP was

competent to grant permission to arrest the petitioner. Accordingly,

after seeking the permission from the ACP, notice under Section 160

Cr. P.C. was served upon the petitioner. However, he expressed his

inability to appear before the Investigating Officer due to illness of

his father. Thereafter, in order to serve the pre-arrest notice, the

police officials went to Pune on 17th June, 2010. However, petitioner

was not available, as such, notice was tried to be served upon his

brother who refused to receive the same. As regards the DD entries,

it was submitted that the purpose of DD entry was only to show the

arrival and departure and, therefore, it was not required to be

mentioned in those DD entries the purpose of visit of the police

officials to Pune. Father of the petitioner was suffering from illness

and as such, died. The petitioner filed the private complaint before the

Pune Court wherein the police officials were ordered to be

summoned. A writ petition was filed before the Bombay High Court

and the FIR has been quashed. As such, it was submitted that there is

no merit in the writ petition and the same is liable to be dismissed.

14. There is force in the submission of the learned counsel for the

respondent that in this writ petition, the petitioner has raised disputed

questions of facts inasmuch as admittedly as per the order of the

Session Court, in case of arrest, seven days pre-arrest notice was to be

served upon the petitioner and his family members. It is the case of

respondent that on 18th May, 2010, approval from ACP for arrest of

the petitioner was sought which was accorded on 21 st May, 2010.

Petitioner has relied upon standing order issued by the Commissioner

of Police, Delhi vide Circular No.80033-132/C&T (AC-5) PHQ dated

21.12.2007 whereby various guidelines have been given for arrest and

as per those guidelines in case of arrest of the main accused in cases

under Section 498A/406 IPC, prior written approval of DCP is

required. However, learned Additional Standing Counsel has placed

on record the standing order No. 51, Order Book No.02/Record

Branch (PHQ) dated 08.10.2008, whereby the aforesaid standing

order issued vide No. 80033-132 dated 21st December, 2007 was

withdrawn and as per this standing order, arrest of the main accused

can be done with prior approval of ACP/DCP. As such, the standing

order on which reliance has been placed by the petitioner stands

withdrawn and as per the standing order dated 8 th October, 2008,

ACP was also competent to accord approval for arrest of the main

accused.

15. It is not in dispute that after seeking approval from ACP, a

notice under Section 160 Cr. P.C. was served upon the petitioner for

appearance, however, the petitioner expressed his inability to appear

due to ill health of his father. According to the respondents,

thereafter, pre-arrest notice was tried to be served upon his brother

Kapil Bhandari, who refused to receive the same. The petitioner has

disputed this fact by alleging that the notice is on a plain piece of

paper which is unattested and it was never sought to be served upon

his brother nor he refused to receive the same. This fact is required to

be proved by means of evidence.

16. Thereafter, it is alleged that on 4th June, 2011, the petitioner

was arrested by respondents No. 2&3 when he came out of the Court

after attending the court proceedings in Rohini Court. Even this fact

has been denied by the respondents by alleging that the petitioner was

arrested from Sector 7-8 Dividing Road, Rohini, Delhi. It is the case

of the petitioner that he was arrested around 11:00 a.m. whereas

according to the respondents, he was arrested at 12:45 pm and the

arrest memo was prepared. Mother of the petitioner was with him.

Petitioner as well as his mother signed the arrest memo. This fact has

been challenged by the petitioner by stating that his mother had gone

to the office of DCP seeking his release and neither he nor his mother

signed the arrest memo. Copy of the arrest memo which has been

placed on record bears his signatures. As such, the time of arrest of

the accused and whether it was signed by the petitioner and his

mother at the time of preparation of arrest memo, again is a matter of

trial. Similarly, it is the allegation of the petitioner that neither he was

informed about the grounds of arrest nor his mother was informed

about the place of detention which fact is also disputed by the

respondent. According to the respondent, after his arrest, he was

medically examined and thereafter, produced before the Metropolitan

Magistrate who remanded him to judicial custody. Under the

circumstances, time and place of arrest of petitioner, disclosure of the

grounds of arrest, signing of the arrest memo by him and his mother

are disputed questions which cannot be gone into in this writ petition.

It is only after the parties lead evidence then it can be decided

whether there is any violation of procedural law or directions given

by the Hon'ble Supreme Court from time to time.

17. As regards, the visit of the respondent at Pune and subsequent

demise of his father, it is not in dispute that complaint was filed by

the petitioner before the Pune Court and the respondents were ordered

to be summoned. However, it is a matter of record that FIR has been

quashed by the Mumbai High Court.

18. The petitioner has raised pure question of facts for

determination in the writ proceeding. It is well known that in a writ

petition, ordinarily such disputed question of facts is not to be

entertained. The moment there is a debatable area in the case, it is not

amenable to the writ jurisdiction of the High Court under Article 226

of the Constitution. This Court in exercise of jurisdiction under

Article 226 of the Constitution cannot adjudicate the matter where the

foundational facts are disputed. Rival contentions of the parties

cannot be decided in a writ proceeding as held in Himmat Singh Vs.

State of Haryana & Ors., (2006) 9 SCC 256; Mukesh Kumar

Aggarwal Vs. State of Uttar Pradesh & Ors., (2009) 13 SCC 693;

Bhagavat Singh and etc. Vs. State of Tamil Nadu and Ors., 1998

Cr.LJ 3513. This Court is not required to embark upon an enquiry

whether the allegations in the petition which are controverted by the

respondents are correct or not.

19. Subhashree Das @ Mili Vs. State of Orissa and Ors., (2012) 9

SCC 729 was also a case where the writ petition was filed under

Article 21,22 (2), 226 and 136 of the Constitution of India for illegal

detention by police and compensation was claimed. It was held that

the claim of the appellant that she had been illegally detained could

not have been determined on the basis of disputed facts. In such a

case, claim raised by such a petitioner must be determined on the

basis of factual position acknowledged by respondent. High Court in

exercise of jurisdiction under Article 226 of the Constitution would

ordinarily not adjudicate a matter where the foundational facts are

disputed.

20. Things are substantially same in the instant case. The question

whether the petitioner has been illegally arrested cannot be

determined on the basis of disputed facts. Since all the averments

made by the petitioner require adjudication, same cannot be done in

the writ petition.

21. The petition is accordingly dismissed. Petitioner is, however,

at liberty to seek appropriate remedy as may be available to him

under law.

SUNITA GUPTA (JUDGE) AUGUST 02, 2013 rs