The Bombay High Court’s Aurangabad bench recently directed the state government to pay as compensation Rs 50, 000 each to two petitioners from Beed district, including an ex-military person, for illegally detaining them for six days in jail in 2013.(Arun & Ors. v. The State of Maharashtra)

A division bench of Justice Tanaji V Nalawade and Justice Mukund G Sewlikar passed the judgment earlier this month on a plea filed by Arun Tagad (33) and Shailendra Tagad (34) from Beed seeking compensation of Rs 5 lakh each on the ground that they were illegally arrested and detained in custody at the instance of Beed police and executive magistrate.

Facts of the case

On January 28, 2013, a first information report (FIR) was lodged by Beed Rural Police against the petitioners on a complaint of a 35-year-old woman that the accused persons had assaulted her during a quarrel. She complained that the accused persons picked up a fight with her family because her family did not allow them to use bullocks and carts for fetching water.

On January 30, 2013, the petitioners were arrested by police under sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code. They were later released by the judicial magistrate first class after furnishing personal bond and surety.

However, as per the report, they were arrested again by the same police immediately after they came out of court campus and they were taken before the executive magistrate. The executive magistrate passed an order against the petitioners and directed them to give interim bond with two sureties of Rs 25, 000 each.

On requesting the executive magistrate to permit them to give cash security instead of surety bond as issuance of solvency certificate would take some time, the EM rejected their plea and adjourned the matter to the next date, the Indian Express report said.

On January 31, 2013, a fresh written request was granted by the EM and a release order passed. However, the petitioners were kept behind bars till February 5, 2013.

Submissions on behalf of the parties.

According to the petitioner's lawyer Advocate NR Thorat contended that there are mala fides in the action taken by police and the Executive Magistrate also did not pass necessary orders and due to that they were illegally detained in jail from January 30, 2013 for six days.

Petitioners are not habitual offenders, in fact Shailendra Tagad was serving the military at the relevant time and Arun Tagad was a respected person and resident of the same locality as the complainant and so detention was not necessarily in the chapter case. The arrest and detention were illegal and there is a violation of the fundamental rights of the petitioners, Adv Thorat submitted.

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. The said direction was given on wireless.

According to police head constable Bansi Jaibhaye, 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. On that day, a report was submitted to the Executive Magistrate who directed the petitioners to give a bond of Rs.25,000 with two solvent sureties. However, the petitioners failed to comply with this order and the matter was adjourned to February 5, 2013, by the Executive Magistrate, the said constable contended.

Observations & Judgment

The Court after hearing the submissions noted that the records show that the police station requested the Executive Magistrate to start chapter proceedings under Section 107 of CrPC and obtain an interim bond from them under Section 116(3) of CrPC. The bench said-

"The provision of Section 107(1) of the Code of Criminal Procedure shows that there are conditions for starting the proceeding under this section….

In the present matter, the record shows that there was only a 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 a 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 bonds 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."

Moreover, the bench observed that the police head constable's submission that he had only directed the petitioners to appear before the Executive Magistrate when they were released on bail by the Judicial Magistrate First Class appears to be incorrect and false. Court said-

"The aforesaid order of interim bond made by the Executive Magistrate shows that the petitioners were brought before the Executive Magistrate by police head constable Jaibhaye. This circumstance supports the contention of the petitioners that immediately after their release on bail by the Judicial Magistrate First Class, they were taken in custody by police and they were produced before the Executive Magistrate. Though there is such clear probability, there is no record to show their formal arrest under any provision of law after they were released by the Judicial Magistrate First Class in aforesaid crime."

Finally, the bench noted that the said order of the Executive Magistrate was illegal-

"The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs.25,000 each for each opponent. These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a 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."

Directing the State to pay Rs.50,000 each to the petitioners, the Court observed that said compensation has to be paid within 45 days, failing which the amount will carry interest at the rate of 8% per annum. Court also said that it was open for the STate to recover the same from the erring officers and the Executive Magistrate.

Read Judgment @Latestlaws.com

Share this Document :

Picture Source :