The Division Bench of Bombay High Court consisting of Hon’ble Justices TV Nalawade and MG Sewlikar in the case of Arun and Shailendra vs The State of Maharashtra and 4 others delivered on December 1, 2020 has directed the State Government of Maharashtra to pay Rs. 50,000/- each towards compensation to two men who were illegally detained in Beed District of Aurangabad Division for six days in 2013. It also directed that in such cases the State needs to obtain explanation from the erring authority and fix some kind of responsibility.
Brief facts:
The petition was filed for giving direction to Respondents to pay compensation of Rs.5,00,000/- to each of Petitioners on the ground that the Petitioners were illegally arrested and detained in custody at the instance of police.
On 28th January, 2013, FIR was given against the Petitioners by one lady and the crime for the offences punishable under Sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code was registered. Both the Petitioners were arrested and the Petitioners were produced before the Judicial Magistrate First Class on the same day.
The Magistrate granted bail to both the Petitioners and they were released when they furnished personal bond and surety bond. It is the contention of Petitioners that when they came out of the campus of Court, same police arrested them immediately and they were taken before the Executive Magistrate, Beed.
On 30th January, 2013, both the Petitioners were produced before the Executive Magistrate and the Executive Magistrate made order against the Petitioners and directed them to give interim bond with two solvent sureties of Rs.25,000/- each. On same day, Petitioners moved an application before the Executive Magistrate and requested the Magistrate to permit them to give cash security in place of surety bond and they submitted that they had applied for getting solvency certificate, but such certificate generally is not issued immediately. The Executive Magistrate did not allow this application and adjourned the matter to next date.
Case of the Petitioner
It was contended: there were malafides in the action taken by police and the Executive Magistrate had also did not pass necessary orders and due to that they were illegally detained in jail from 30th January, 2013 for about six days. It was argued that they are not habitual offenders. It was their contention that Petitioner No.2 was surveying in the military at the relevant time and Petitioner No.1 was a respected person and resident of same locality and so detention was not necessarily in the chapter case. And that the arrest and detention were illegal and there is violation of the fundamental rights of the Petitioners.
Case of the Respondent
In the reply filed by Respondent, police head constable, who was investigating the aforesaid crime, it is contended that the Deputy Superintendent of Police, Beed Division had directed this police station to take preventive measures against the Petitioners.
It was also argued that the direction was given on wireless. Photocopy of wireless message is also produced and that when the Petitioners were released on bail by Judicial Magistrate First Class, he asked the Petitioners to appear before the Executive Magistrate on the same day and he did not arrest them.
It was further submitted that: on that day, report was submitted to Executive Magistrate and the Executive Magistrate directed the Petitioners to give bond of Rs.25,000/- with two solvent sureties. It is contended that as the Petitioners failed to comply this order, the matter was adjourned to 5th February, 2013 by the Executive Magistrate.
Reasoning and decision of the Court
The Court at the outset observed that:
“The aforesaid circumstances show that even when bailable offence was registered, both the Petitioners were arrested and they were produced before the Magistrate when they could have been released on bail in the police station. The message given by the Sub-Divisional Police Officer shows that he had directed to take preventive measure and due to that the police head constable gave report to Executive Magistrate and it can be said that the report was given after release of Petitioners on bail by the Judicial Magistrate First Class. The submissions made and the record show that the police station requested the Executive Magistrate to start chapter proceeding under Section 107 of the Code of Criminal Procedure and obtain interim bond from them under Section 116(3) of the Code of Criminal Procedure.”
With respect to the application filed with the Executive Magistrate, the Court stated:
“There is a copy of application, which was given by Petitioners on 30th January, 2013 and it can be said that this application was moved after passing of aforesaid order by Executive Magistrate. This application shows that the Petitioners offered to give cash security of aforesaid amount and it was also submitted that two sureties like Umakant Tagad, resident of Kumshi, District Beed and Harishchandra Raosaheb Nikam were present to execute the bond as surety.
It was also written in the application that for getting solvency certificate in respect of these sureties, applications were already moved, but it may take some time. On this application, the Executive Magistrate made order that the amount was to be accepted on 1st February, 2013. There is a copy of another application given for the Petitioners by their Advocate and it is dated 31st January, 2013. This application shows that it was again requested to Executive Magistrate to give time for getting solvency certificate and atleast 2-3 days time was required for that. On this application, the Executive Magistrate made order.”
Elaborating on the objective of Chapter VIII, the Court observed that:
“It is already observed that the offence for which crime was registered is bailable and so they could have been released on bail in the police station itself. The provision of Section 107 of the Code of Criminal Procedure falls in Chapter VIII. The purpose of Chapter VIII is given in the heading of the Chapter and it shows that the provisions are made for security for keeping the peace and for good behaviuor. The scheme of this Chapter shows that in different circumstances, chapter cases can be started under different sections like Section 107 to 110. The power given under Section 106 of the Code of Criminal Procedure is of different nature and that need not be discussed in the present matter. In the present matter, there was a proposal to start chapter proceeding under Section 107 of the Code of Criminal Procedure and so this provision needs to be considered.”
The Court stated that the provision of Section 107(1) of the Code of Criminal Procedure showed that there are conditions for starting the proceeding under this section and the conditions are as under:
“That there was information against the opponent that he was likely to commit breach of peace or he was likely to disturb the public tranquillity or the opponent was likely to do any wrongful act, which may occasion breach of peace or disturbance of public tranquillity;
There should be material before the Executive Magistrate for forming opinion that there is aforesaid probability;
There should be subjective satisfaction of Executive Magistrate that such ground exists and that opinion needs to be formed on the basis of material;
After forming such opinion, the Executive Magistrate needs to issue show cause notice against the opponent and then it can be said that the Executive Magistrate has taken cognizance of the matter and the chapter proceeding starts.”
It was further observed by the Court that:
“In the present matter, the record shows that there was only police report of aforesaid police head constable before the Executive Magistrate and that was in respect of registration of aforesaid crime. The report does not show that any document including copy of aforesaid FIR was supplied to the Executive Magistrate. On this report itself, the Executive Magistrate made the order and directed the Petitioners to execute interim bond under Section 116(3) of the Code of Criminal Procedure of aforesaid nature. The record produced and the reply of the police head constable does not show that before passing such order, any order of show cause as required under Section 111 of the Code of Criminal Procedure was made.”
Elaborating on the other provisions of Cr.P.C. applicable here, the Court stated:
“The provision of Section 113 and relevant portion of provision of Section 116 of the Code of Criminal Procedure quoted above shows that when chapter proceeding is started under Section 107 of the Code of Criminal Procedure, the Executive Magistrate is not expected to issue warrant. He can issue only summons or notice and send show cause notice under Section 111 of the Code of Criminal Procedure to opponents. The grounds given in Section 107 of the Code of Criminal Procedure are not that serious and they do not show that there is urgency and they need to be arrested first. Ordinarily, for proposing chapter case under Section 108, 109 and 110 of the Code of Criminal Procedure, police use provision of Section 151 of the Code of Criminal Procedure and they make arrest and then they produce the accused alongwith proposal of chapter case before the Executive Magistrate.
The provision of Section 151 of the Code of Criminal Procedure enables police to arrest the opponent as the police form opinion that there is a possibility of commission of cognizable offence by the opponent. There is no such possibility when chapter case is to be started under Section 107 of the Code of Criminal Procedure. Thus, arrest before issuing show cause notice under Section 111 of the Code of Criminal Procedure when chapter proceeding is to be filed under Section 107 of the Code of Criminal Procedure is not permissible and it is illegal. Similarly, in view of the provision of Section 116(3) of the Code of Criminal Procedure, interim bond cannot be obtained from the opponent when chapter proceeding is started against him under Section 107 of the Code of Criminal Procedure.”
Stating that a serious mistake was committed by the Executive Magistrate, the Court observed that:
“The aforesaid discussion shows that the order of Executive Magistrate asking the present Petitioners to execute interim bond of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificate of Rs.25,000/- each for each opponent. These circumstances show that there were malafides and intention of the police was to see that the Petitioners are arrested and they are kept behind bars for few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction.”
“only because there is a copy of order dated 31st January, 2013 showing that on that day Executive Magistrate had given direction to release the opponents and time was give to them as prayed, this Court holds that the compensation cannot be on higher side. There is a clear possibility that to the Executive Magistrate there was no proper training. The powers available, which are in Chapter VIII of the Code of Criminal Procedure are invested either in police officer of higher rank or some revenue officer and as they have no training, when superior police officer issue some instructions like done in the present matter and orders of the aforesaid nature are passed.
In any case, it needs to be made known to Executive Magistrate that he has passed illegal order and he had no jurisdiction to pass such order. Only because he was expected to discharge the duty given under Chapter VIII of the Code of Criminal Procedure, he may not be directed to pay compensation. However, the State needs to obtain the explanation and fix some kind of responsibility in such cases. It is serious mistake committed by the Executive Magistrate.”
Held
Allowing the petition, the Court directed the respondents to pay Rs.50,000/- to each Petitioner as compensation for illegal detention. The State Government was directed to pay this amount and it was to be done within 45 days from today, failing to which the amount would carry interest at the rate of 8% per annum.
Case Details
Name: Arun and Shailendra vs The State of Maharashtra and 4 others
Case No.: Criminal Writ Petition No. 574 of 2013
Bench: Hon’ble Justices TV Nalawade and MG Sewlikar
Date of Decision: December 1, 2020
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