1 cri-wp-3255-10.doc pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3255 OF 2010 Shri Vijay Laxman Gavhale ...Petitioner Versus Senior Inspector of Police, Baramati City Police Station Baramati, Dist. Pune and ors. ...Respondents Mr. K.S. Patil i/by Mr. Prashant Hagare for petitioner. Ms. M.H. Mhatre APP for State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. July 15, 2011. P.C. 1. Heard Mr. Patil the learned counsel for the petitioner and Ms. Mhatre the learned APP for State. 2. Rule. Respondents waive service. Affidavits-in-reply have 2 cri-wp-3255-10.doc been filed by Shri Milind Mohite, Probationary Deputy Superintendent of Police, Baramati, Shri P.B. Bhong, Resident Naib Tehasildar, Baramati and Shri Shivaji Ramraya Kale, Police Sub Inspector, Baramati City Police Station. 3. The challenge in this petition is to the legality of the order passed, thereby making the petitioner to furnish a bond of good behaviour under Section 110 of Cr. P.C. on 7/7/2010. The petition is heard finally. 4. The petitioner is an Advocate practicing in the District and Sessions Court at Baramati and other Courts in the Pune District. He claims to be a social and political activist and was elected as a Councilor of Baramati Municipal Council. He was appointed as the leader of the opposition in the Municipal Council. On 7/7/2010 he was shown to be arrested at about 14.30 hrs., as per the arrest panchanama which is placed on record. On the same day, he was produced before the Executive Magistrate, Baramati and the Executive Magistrate passed an order at about 5.15 p.m. releasing the petitioner on furnishing a good conduct bond under Section 110 of Cr. P.C. A copy of the bond is also placed on record furnished by the petitioner. 3 cri-wp-3255-10.doc 5. It is under these circumstances the petitioner alleges that he was illegally arrested, he was forced to sign a good behaviour bond under Section 110 of Cr.P.C. without following the due process of law for the same and as has been set out in the Code. He has relied upon the decision of this court in the case of Surendra Ramchandra Taori vs. State of Maharashtra and ors. [2001 (4) Mh.L.J. 601] and the common decision in Criminal Writ Petition Nos.2682/08 and 1301/08 rendered on 18/6/2009. The petitioner, therefore, claims compensation, costs and suitable action against the police officers concerned i.e. respondent nos.1 and 2 who have already filed their affidavits. 6. The arrest form filled in on 7/7/2010 at 14.30 hrs. and signed by PSI Shri S.R. Kale, clearly states that, in Column No. 12 of the said form, the contingencies mentioned were not applicable to the petitioner. However, in his affidavit filed before us, he tenders an apology for writing “No” against Point No.12(e) and (c) and claims that it was a bonafide mistake by inadvertence. He reiterates that there were four registered cases against the petitioner. In the affidavit filed by Shri Milind Mohite, it has been stated that there were two cases pending 4 cri-wp-3255-10.doc against the petitioner under Section 130 and 135 of the Representation of Peoples Act and C.R. No. 119 of 2010 was pending for investigation. The fourth case was an NC registered for the offences punishable under Sections 504 and 506 of IPC (NC No.784 of 2010). It is further stated that PSI Kale had submitted a report that the petitioner was involved in threatening people and he was also having political support. He was likely to commit further offences and nobody was coming forward to depose against the petitioner. It is further stated in the said affidavit that if no action was taken against the petitioner, he would create law and order problem and, therefore, it is necessary to take action against him under Section 110 (e)(g) of Cr.P.C. The same case has been, on the similar lines, reiterated in the affidavit filed by Shri P. B. Bhong, Resident Naib Tehasildar. It has been stated further in his affidavit that as the Tehasildar was on field work on 7/7/2010, he as the Resident Naib Tehasildar acted as the Executive Magistrate and the petitioner was produced before him and he passed the order releasing the petitioner at about 5.15 p.m. on furnishing a good conduct bond under Section 110 of Cr.P.C. This officer has stated that the petitioner was never arrested and kept in custody in the office of Tehasildar. It may be possible that the petitioner was not kept in the custody in the office of the Tehasildar but the record clearly states that 5 cri-wp-3255-10.doc the petitioner was arrested on 2.30 p.m. On 7/7/2010 by Shri Kale and the affidavit filed by him does not deny the arrest of the petitioner. 7. The Division Bench in the case of Surendra (Supra) in para 13 set out the procedure for passing an order under Section 110 of Cr.P.C., which reads as under:- “13. The first step in the proceedings is passing of a preliminary order under Section 111 of the Criminal Procedure Code which is a condition precedent for taking further steps in any proceedings under Section 107 to 110 of the Code of Criminal Procedure. Such order, with its required contents, must be recorded and indicated even where the Police have brought before the Magistrate a person under arrest as suspected offender. The first thing is that the Magistrate must do after receipt of the information, referred to in section 110 is to apply his mind to such information, if he is satisfied that there is ground for proceeding under such Chapter to pass an order in writing under the present section and, therefore, it is mandatory on 6 cri-wp-3255-10.doc the part of the Magistrate for passing of a preliminary order stating the substance of the information etc. which will be served as a notice. It does not contemplate a notice different from such order. If the person charged is present in the Court, the order should be read over to him and that may amount to notice. If they are not present, a copy of summons must be enclosed with the summons or warrant as the case may be and therefore, it is quite clear that no final step in the proceedings can be made and therefore, without giving an opportunity to such person to show cause by reading over the order to him if he happens to be in the Court when order under section 111 is made. It is only thereafter that the preliminary order under sub-section (3) of section 116 of the Code of Criminal Procedure can be passed and, therefore, one thing is clear that unless and until steps as contemplated under section 111 of the Criminal Procedure Code are taken i.e. an order requiring a person to show cause under such section, which should be in writing setting forth the substance of the information received, the amount of the bond to be executed the term for which it is to be in force 7 cri-wp-3255-10.doc and the number, character and class of sureties (if any) required no further steps can be taken........” 8. The Division Bench further cautioned to restrain while initiating proceedings under Section 110 of Cr.P.C. in the following words:- “Therefore, it is clear that proceedings under section 110 are taken to prevent committing such acts by a person as mentioned therein. The object of this section is to bind down the person to good behaviour with an object to afford protection to the public against a repetition of crimes against their person or property and is not a punishment of the offender for his past offences, but for securing his good behaviour for the future. Since this section confers drastic powers to bind down persons suspected, but not proved to have committed any of the offences specified in various clauses, the powers should be used with extreme caution and judicial discretion and strictly according to the procedure laid down, so that it may not be used as an engine of oppressions, 8 cri-wp-3255-10.doc blackmail or private vengeance.” 9. We have given our anxious considerations to the arguments advanced at the bar and there is no doubt that the actions taken against the petitioner of arresting him as well as passing an order under Section 110 of Cr.P.C. are unsustainable. The police officers acted high-handedly and contrary to the procedure laid down for action to be taken under Section 110 of Cr.P.C. 10. Hence, this petition is allowed and Rule is made absolute in terms of prayer clause (a). We direct the State to pay, by way of costs, an amount of Rs.5000/- to the petitioner within two weeks from today and the said amount may be recovered by the concerned police authorities from the salary of Shri Shivaji Ramraya Kale, Police Sub Inspector, Baramati City Police Station, Baramati, Dist. Pune. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)