- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.515 OF 2000 Nirmal Kumar Bhawarlal Jain Age 35 years, Occ. Business Prop. Happy Home Steel Emporium Udhana Station, Sag Bhaji Market, Road No. 0, Udhana Station, SURAT (Gujarat) ... PETITIONER VERSUS 1. The State of Maharashtra (Copy to be served to A.P.P., High Court, Bench at Aurangabd) 2. The Dy. Inspector General of Police, Nasik Region, Nasik. 3. The Superintendent of Police, Jalgaon. 4. The Sub-Divisional Police Officer, Amalner, District Jalgaon. 5. L.L. More, Assistant Police Inspector, Dharangaon Police Station, Dharangaon, District Jalgaon. (DIED) - 2 - 5. Abasaheb M. Kulat, Police-Sub-Inspector, Marwad Police Station, Taluka Amalner, District Jalgaon ... RESPONDENTS (Respondents No. 1 to 4 to be served through A.P.P., High Court, Bench at Aurangabad) ----- Shri B.R. Warma, Advocate for the petitioner Shri K.S. Patil, A.P.P. for respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 17th February, 2010. ORAL JUDGMENT (PER HARDAS, J.) : 1. This is a petition under Article 226 of the Constitution of India, by which the petitioner prays for issuance of a writ of mandamus for quashing and setting aside Crime Nos.106/2000, 77/2000, 88/2000 and 95/2000, registered against the petitioner. The petitioner also prays for issuance of a writ of mandamus, directing a judicial enquiry to be initiated in respect of the illegal - 3 - detention of the petitioner by respondent Nos.5 and 6 in utter violation of the directions of the Supreme Court in D.K. Basu Vs. State of West Bengal (AIR 1997 S.C. 610). The petitioner prays for awarding of damages/ compensation of Rs. 2 Lacs and more for the indignity and the loss of business suffered by the petitioner. The petitioner also prays for directing respondent No.5 to repay an amount of Rs.4200/- incurred by the petitioner on a private vehicle used by the police for transporting the petitioner from the place of his arrest to the police station and vice versa. The petitioner also prays for directing respondent No.6 to refund an amount of Rs.1950/- incurred by the petitioner for similar purpose. 2. At the outset, it is brought to our notice that respondent No.5 has expired during the pendency of this petition. In that light of the matter, the petition would stand dismissed as abated as against respondent No.5. 3. According to the petitioner, the petitioner is a businessman who runs a metal pot shop at Udhana in Surat (Gujarat State) along with his brother Kailash Jain. The petitioner is a small businessman, who according to him, does his business diligently and honestly for earning his livelihood. On 8.9.2000, at - 4 - about 4 to 5 police personnel in plain dress had come to the shop of the petitioner by a private vehicle i.e. Tempo Trax. On their arrival, they disclosed that they were police officers of Dharangaon Police Station. On the allegations that the petitioner had purchased stolen aluminium wire, the petitioner was questioned and taken in the private vehicle to Dharangaon Police Station, where, it appears, Crime Nos.106/2000, 77/2000, 88/2000 and 95/2000 had been registered, in which the petitioner came to be arrested on suspicion. The petitioner was detained by the police officers till about 16.9.2000 when the petitioner came to be released on bail by the Court. Immediately thereafter, the petitioner was transported from Dharangaon Police Station to Marwad Police Station again on suspicion that the petitioner had received stolen property in Crime Nos.25/2000, 32/2000 and 24/2000. Ultimately, the petitioner was detained at Marwad Police Station for about 7 to 8 days and thereafter came to be released. According to the petitioner, the petitioner was cited as a witness in the aforesaid crimes at Marwad Police Station. According to the petitioner, he was taken from Dharangaon Police Station to the Marwad Police Station and subsequently to the other places during investigation by private vehicle for which the petitioner was required to bear the expenses. The grievance of th petitioner is that, in transporting the petitioner from one place to the other by - 5 - private vehicle, the petitioner was made to pay for the charges of the private vehicles. 4. The petitioner, by this petition, claims violation of the principles enunciated and laid down by the Supreme Court in D.K. Basu’s case (supra). According to the petitioner, the following are the violation of which he complains: (i) The police personnel who had come to arrest the petitioner were not in uniform which is mandated by the Supreme Court that the police officers should be in uniform with a badge disclosing their identity. (ii) Arrest panchanama had not been drawn evidencing arrest of the petitioner. (iii) Information about the arrest was not conveyed to the relatives of the petitioner. (iv) Local panchas had not been associated at the time of effecting the arrest of the petitioner. (v) While removing the petitioner from the jurisdiction of the local police, the local police had not been informed and their assistance had not been taken. (vi) The petitioner was forced to bear the expenses of transportation in a private vehicle for which the petitioner has - 6 - independently prayed for the said amount in prayer clauses of the petition. 5. Mr. B.R. Warma, learned counsel for the petitioner, while highlighting the various breaches committed by the respondents/ authorities in respect of the guidelines laid down by the Supreme Court in D.K. Basu’s case (supra), has invited our attention to the affidavit-in-reply filed by Ankush Ghinabaji Dhanvijay, Special Inspector General of Police, Nasik Range, Nasik, dated 7.6.2004. In the aforesaid affidavit-in-reply, at paragraph No.2, it is stated that pursuant to the directions given by this Court in this Writ Petition, dated 22.4.2003, the deponent had ordered a detailed enquiry to be conducted through the Additional Superintendent of Police, Jalgaon. During the enquiry conducted by the Additional Superintendent of Police, Jalgaon regarding the arrest of the petitioner in Crime No.106/2000, registered by the Dharangaon Police Station and Crime No. 32/2000 registered by the Marwad Police Station, it was revealed that the police officers had indeed committed breach of the directions issued by the Supreme Court in D.K. Basu’s case. The breach committed by the police officers are highlighted in the aforesaid paragraphs and the breach committed is in respect of Dharangaon Police Station not informing a friend or relative of the - 7 - petitioner in respect of the arrest of the petitioner. Intimation was given to the brother of the petitioner Kailash on telephone, but no written intimation either by post or telegram was given. Further breach which is admitted is that the investigating officer, while preparing the seizure memo, had not obtained the signature of a member of the family of the petitioner nor had he associated respectable persons of his locality. The investigating officer had also failed to obtain the counter signature of the petitioner on the seizure memo. The witnesses were not local residents, but were residents of Jalgaon. The affidavit-in-reply further discloses that the investigating officer had committed certain administrative lapses. The affidavit-in-reply further discloses that the investigating officer had failed to use official vehicle and had used a private vehicle without obtaining permission of the Superintendent of Police, Jalgaon and had failed to submit a bill for the fuel for reimbursement. Neither help of the local police of Gujarat State was sought while effecting the arrest nor were the local police were informed about the arrest of the petitioner. The affidavit-in-reply further discloses that certain administrative action was proposed to be initiated against the erring police officers. The administrative action was that A.P.I. More, Abasaheb Kulat, the then P.S.I. of Marwad Police Station, Head Constable P.R. Patil of Marwad Police Station are likely to be - 8 - proceeded against departmentally. Proposals are being sent to the competent Superintendent of Police recommending departmental proceedings against the police officers. The affidavit-in-reply at paragraphs 6 and 7 also deals with the various steps taken for strict compliance of the directives of the Supreme Court in D.K. Basu’s case. 6. We have heard the learned A.P.P. appearing on behalf of respondent Nos.1 to 4 and 6. The petition stands abated as against respondent No.5. The learned A.P.P. made a vain attempt at justifying the action of police officers but was unsuccessful in defending the said action in the light of the affidavit-in-reply filed by Special Inspector General of Police, Nasik Region, Nasik. The affidavit-in-reply, adverted to above, in clearest possible terms admits of certain breach being committed by the respondents/ police officers in effecting the arrest of the petitioner in the crimes registered as Dharangaon Police Station and Marwad Police Station. The learned counsel for the petitioner has invited our attention to paragraph 55 of the judgment of the Supreme court in D.K. Basu’s case. Paragraph 55 of the said judgment reads as under : “55. Thus, to sum up, it is now a well accepted - 9 - proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duly bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given - 10 - case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 7. In that light of the matter, according to us, the petition deserves to succeed and the petitioner is entitled to be awarded the compensation for the various breach committed by the respondents in effecting the arrest of the petitioner in crimes registered at Dharangaon Police Station and to the Marwad Police Station. The awarding of this compensation would be in addition to whatever other remedies that the petitioner may resort for claiming damages or may have resorted for claiming damages for his alleged illegal arrest. In the peculiar facts of the case, therefore, we quantify the compensation/ damages payable to the petitioner at Rs.1,00,000/- (Rupees One lac only) towards the various heads of compensation claimed by the petitioner. Since we have awarded the compensation of Rs.1,00,000/-, we do not consider it appropriate to award any costs of this petition. 8. Accordingly, this Criminal Writ Petition is allowed and respondent Nos.1 to 4 and 6 are directed to pay to the petitioner an amount of Rs.1,00,000/- (Rupees One Lac) as compensation within eight weeks from today, failing which the aforesaid amount would carry interest at the rate of 8% p.a. from 8.9.2000 till the - 11 - amount is actually paid by the respondents. 9. Rule made absolute on the aforesaid terms with no order as to costs. Certified copy expedited. [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.]