1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 294 OF 2003 Murlidhar Atmaram Wani Age 61 years, Occ. Retired R/o. Near Tilak Talo, Tq. Dharangaon, District Jalgaon ...Petitioner Versus 1 D.D. Shankarwar, Inspector of Police) Dharangaon Police Station District Jalgaon 2 S.N. Pardesi (Police Head constable) Batch No.42, Dharangaon Police Station Distrait Jalgaon 3 Vithal Sonwane, Tahsildar Dharangaon District Jalgaon 4 The Commissioner of Police Nashik Division 5 District Superintendent of Police Jalgaon, District Jalgaon 6 The State of Maharashtra (Respondent Nos. 4 to 6 to be served through G.P. Office High Court, Bench at Aurangabad) ...Respondents ..... Miss. Sadaf Quazi, advocate for the petitioner Mr. V.D. Godbharle, A.P.P. for respondents ..... 2 CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 08.07.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 28.07.2010 JUDGMENT (PER SHINDE, J.) 1 The present writ petition is filed with prayer for issuance of directions to respondent Nos. 4 to 6 to take deterrent action against respondent No. 1, 2 and 3 i.e. the Inspector of Police, Shri D.D. Shankarwar, Dharangaon police station, S.N. Pardeshi, (Police Head Constable), Dharangaon Police Station and Mr. Vitthal Sonwane, Tahsildar, Dharangaon. It is further prayed that the respondent Nos. 1, 2 and 3 be directed to pay compensation to the petitioner for their illegal act of harassing and torturing the petitioner. Thus this petition is filed with twofold prayers. This petition was heard by this court at admission state on 15.12.2003, when “Rule” was issued. Now, matter is taken up for final hearing. 2 It is the case of the petitioner that he retired as driver from Municipal Council, Dharangaon. He has subscribed a cable connection. One Jagannath Bansilal Shirsath, Aged 22 years, on 3 13.4.2003 at about 6.30 p.m. went on the roof of the petitioner’s house with an intention to commit theft of cable wire. The petitioner caught him red handed. The said person, being young and strong than the petitioner, as the petitioner is old and handicapped by right hand and was not able to resist the said person, said person succeeded in escaping from the said place. It is further case of the petitioner that he went to police station to lodge the F.I.R. of the said incident, however, the concerned Officer on duty told him to give written complaint. On the next day i.e. on 14.4.2003, at about 8.30 a.m. the petitioner went to the police station and gave a written complaint. It is further case of the petitioner that without reading the said complaint, same was torn into pieces and no cognizance of said complaint was taken by the police Officer, who was on duty. According to the petitioner, the respondent No.1 i.e. Shankarwar was also present at the relevant time. It is further case of the petitioner that instead of registering his complaint, the police registered C.R. No. 165 of 2003 with Dharangaon police station against the petitioner for assaulting Jagannath Bansilal Shirsath. It is the case of the petitioner that the respondent No.1 demanded Rs.15,000/- for releasing the petitioner. It is further case of the petitioner that his elder son Raju came to see him, however, he was also detained in police station alongwith the petitioner. 4 Respondent No.1 released said Raju only after Rs.3000/- was paid to respondent No.1. It is further case of the petitioner that since he was not able to pay Rs.15,000/- to respondent No.1 on 14.4.2003, Chapter case was filed against the petitioner on the same day. The Police Officer wrote to the Tahsildar, Dharangaon to take action against the present petitioner under Section 107 of Cr.P.C. According to the petitioner, Tahsildar i.e. Executive Magistrate came to the police station and passed an order for magisterial custody in the police station itself and ordered “if not furnished bail, to be kept in custody till 16.4.2003.” It is further case of the petitioner that though respondent No.3 had granted bail he himself refused to accept bail furnished by the petitioner and the petitioner was kept in custody till 16.4.2003. On 16.4.2003, respondent No.3 accepted the bail instead of exercising his discretion of releasing on “Security for Good behaviour,” According to the petitioner, his detention from 14.4.2003 to 16.4.2003 was illegal and Executive Magistrate has no power to order to furnish the bail bond and detain the petitioner in custody till 16.4.2003. The petitioner applied for certified copies of the record pertaining to his arrest. According to the petitioner, respondent No.3 i.e. Tahsildar came to know that the petitioner has applied for certified copy of the record pertaining to his arrest. A police constable came to call the petitioner to police station on 24.4.2003. The petitioner went to the police station. Respondent No.1 abused and threatened the petitioner 5 and warned him not to think of initiating any legal action either against him or the Tahsildar. The petitioner refuted this and therefore, he was arrested and was produced before the Magistrate’s Court Erandol on 25.4.2003. It is further case of the petitioner that on 30.5.2003, he filed representation with the Higher authorities of the police department. It is further case of the petitioner that on 25.6.2003 in the night at about 9.00 p.m. one police constable came to his house. He informed the petitioner that the respondent No.1 had called him to the police station on next day morning. They asked him to supply the copy of the document, they refused to supply the copy and he was made to sign. On 26.6.2003, when the petitioner went to police station, respondent No.1 abused him and threatened him of dire consequence. On 26.6.2003, the petitioner filed a representation to respondent No.1 for taking action for obtaining his signature deceptively. According to the petitioner, the action of the respondent authorities is high handed and therefore, strict action is required to be taken against the concerned respondents and the petitioner is entitled for compensation. 3 We have heard learned counsel for the petitioner and learned A.P.P. for the respondent authorities at great length. The affidavit in reply is filed on behalf of respondent No.2 and also on behalf of respondent No.3. Since the respondent No.1 is made party by name, he has also filed his separate reply. It appears that the main grievance 6 of the petitioner is that he was illegally detained by the respondent No. 2 without any authority of law. According to the counsel for the petitioner, in a chapter case the Executive Magistrate cannot direct to furnish the bail or has no power to direct arrest of the petitioner. According to the counsel for the petitioner, the petitioner was illegally detained in jail from 14.4.2003 to 16.4.2003. It is further argued that Section 41 of Cr.P.C. does not empower the police Officer to arrest any person not accused of cognizable case. Section 42 of Cr.P.C. contemplates situation when power of arrest can be exercised by the police Officer, in case of non cognizable offence. The said power is only to ascertain the name and address of the accused. The power comes to an end the moment his credentials are ascertained. It is further submitted that the police had no power to investigate into the matter without any order from the Magistrate. Section 155 of Cr.P.C. specifically provided that no police Officer can investigate the matter without an order from the Magistrate. The affidavit filed by respondent No.1 to the effect that he tried to settle the matter between the petitioner and informant shows that he has indulged into and barged to inquire into the matter, absolutely forbidden to him by the dictum of Section 155. It is further submitted that Executive Magistrate has no power under Section 107 of Cr.P.C. to order detention in custody. He has power to issue show cause notice demanding why (after enquiry) accused should not be made to execute a bond for keeping peace for one year. According to the counsel for the petitioner, the interim bond 7 as provided under Section 116(3) of Cr.P.C. can be demanded from the person who is being proceeded under Section 108, 109 and 110 of Cr.P.C. i.e. those disseminating seditious matter, suspected persons, habitual offenders respectively. According to the counsel for the petitioner the case which was lodged against the petitioner was non cognizable case which police ought not to have investigated without express permission of the Magistrate. The sum and substance of the argument advanced by counsel for the petitioner is that in the first instance the police have no power to investigate into the matter unless the permission is sought from the Magistrate and secondly the Executive Magistrate has no power to direct detention of the petitioner while invoking Section 107 of Cr.P.C. Therefore, the counsel for the petitioner submits that this petition deserves to be allowed. 4 We have heard learned counsel for the petitioner and the learned A.P.P. for the respondent-State. Respondent No.2 herein was in charge of police station on 13.4.2003 between 14.00 to 20.00 hours at Dharangaon police station. In his affidavit in reply, it is stated that one Jagannath Bansi Shirsath, R/o. Dharangaon came to the police station at about 19.45 hours and made a complaint in writing stating that he is serving with cable operator and was doing business of cable operation work on 13.4.2003 at about 18.45 hours, the petitioners called him at the terrace of his residential house and threatened him that he will lodge complaint against him for theft of cable wire. The 8 complainant Shri Jagannath Shirsath told the petitioner that the petitioner has not paid cable connection charges within stipulated period and therefore, cable connection has been disconnected. On being annoyed, the petitioner herein assaulted the complainant Shri Jagannath Bansi Shirsath. The complaint further reveals that the petitioner has twisted left hand finger of the complainant and pushed the complainant on the terrace. The complainant also alleged in the complaint that he was beaten by the petitioner by fist and kick blows. On the basis of the said complaint non-cognizable case No. 165 of 2003 was registered for the offence punishable under section 323 of I.P.C. against the petitioner. The complainant Shri Jagannath Shirsath was referred to the Rural Hospital, Dharangaon for medical treatment. The respondent No.1 issued instructions to respondent No.2 to initiate appropriate preventive action against the petitioner. The affidavit of respondent No.2 further mentions that Jagannath Shirsath and the petitioner residing adjoining to each other and there is every possibility of committing serious offence and therefore, it was necessary to take appropriate preventive action against the petitioner. The petitioner was called upon to remain present in the police station on 13.4.2003. However, the petitioner did not turn up to the police station. A message was again sent to the petitioner to attend the police station on 14.4.2003. The petitioner was informed that said 9 Shirsath has filed non cognizable case against the petitioner. Therefore, taking into consideration that no further serious offence should be committed by the petitioner, the proposal was referred to Taluka Executive Magistrate for initiating appropriate preventive action under Section 107 of Cr.P.C. The Executive Magistrate, Dharangaon initiated chapter proceeding against the petitioner. It is further stated by respondent No.2 that complainant Shri Jagannath Shirsath produced medical certificate dated 22.4.2003 issued by the Medical Officer, Rural Hospital at Dharangaon and lodged F.I.R. against the petitioner for the offences punishable under Sections 325 and 323 of I.P.C. On the basis of the said report, offence was registered under Section 325 and 323 of I.P.C. against the petitioner. The petitioner was arrested on 24.4.2003 at 20.40 hours. He was produced before the Magistrate on 24.5.2003 at 3.00 p.m. The petitioner herein did not make any complaint of ill treatment at the hands of the police before the learned J.M.F.C. at the relevant time. The petitioner came to be released on 25.4.2003. Respondent No.2 alongwith his reply has annexed copy of the extract of lock up register and the station diary entry. The lock up register and station diary entry clearly show that the petitioner was arrested on 24.4.2003 on 20.40 hours and was produced before learned J.M.F.C. on 25.4.2003 at 10 15.00 hours. The lock up register also mentions that the crime is registered against the petitioner under Section 323 and 325 of I.P.C. Respondent No.2 has categorically denied that he made demand of money from the petitioner to release him. The affidavit categorically denies all allegations levelled against respondent No.2 in the writ petition. It is not in dispute that the petitioner has not filed any rejoinder affidavit to this reply filed by respondent No.2. 5 Respondent No.3 who was Executive Magistrate at the relevant time and also working as Tahsildar, has also filed affidavit in reply. In para 3 of the reply, respondent No.3 has stated that on receipt of the proposal from respondent No.2 for initiating proceeding against the petitioner under Section 107 of Cr.P.C., he passed necessary orders on the same day, on which the proposal was received. The petitioner was told to remain present on 16.4.2003 alongwith the surety. This respondent has specifically denied the allegations of the petitioner that on 14.4.2003 he came to police station Dharangaon and passed order and in pursuance to the said order, Police had illegally detained the petitioner from 14.4.2003 to 16.4.2003. It is further stated that on 14.4.2003 there was Dr. Babasaheb Ambedkar Jayanti and respondent No.3 was performing his official duties. On 15.4.2003 also there was Mahaveer Jayanti and for keeping law and order, this respondent was present in the office and continued performing his official duties. On 16.4.2003, the petitioner was present before the 11 Residential Naib Tahsildar Mr. V.B. Deshpande and said Residential Naib Tahsildar, had passed an order under Section 111 of Cr. P.C. and obtained signature of the petitioner on the notice on the same day. On the same day, the petitioner submitted interim bond alongwith surety namely Mr. Kashinath Pundlik Wani. His surety was accepted. On the same day, the petitioner has executed interim bond alongwith the surety. Copies of order passed under Section 111 of Cr.P.C., application of surety, 7x12 extract of surety and interim bond alongwith surety bond, Rojnama, copy of report filed by police in Chapter Case No. 132 of 2003 are annexed with the said reply. It is specifically averred in para 6 of the reply that the petitioner was never detained in custody from 14.4.2003 to 16.4.2003 in chapter case No. 132 of 2003. The petitioner was asked to execute a bond of good behaviour alongwith the surety. This respondent has specifically denied the allegations made against him in the petition. It is specifically stated that there is no threat by this respondent to the petitioner as alleged by the petitioner in the petition. Alongwith reply, the respondent has annexed copy of the record maintained by the Superintendent, Sub Jail, Erandol, District Jalgaon, to show that the petitioner was not detained in jail during the period from 14.4.2003 to 16.4.2003, as alleged by the petitioner. It is an admitted position that no rejoinder affidavit is filed on behalf of the petitioner to the reply filed by respondent No.3. 12 6 Separate affidavit is filed by one Mr. Deelip s/o Digambar Shankarwar, P.S.I. Dharangaon police station, who is respondent No.1 in the petition. In his reply, he has stated that he is serving as police Inspector with Dharangaon police station since last 6 months. One Jagannath Bansi Shirsath lodged complaint against the petitioner on 13.4.2003 stating therein that the petitioner assaulted him and due to which he has sustained injuries. This affidavit in reply also mentions that this respondent has tried to settle the dispute so as to have harmony. There is also mention in para 3 of the affidavit in reply that report was submitted to the Taluka Executive Magistrate for initiating preventive action under Section 107 of Cr.P.C.. It was requested to Taluka Executive Magistrate to get the bond executed from the petitioner for good behaviour. This respondent has specifically denied the allegations of any demand of money by him from the petitioner. In para 5 of the affidavit in reply, there is reference to injury certificate issued by Medical Officer, Dharangaon Rural Hospital to Shri Jagannath Shirsath. Medical Officer described the said injuries to be grievous hurt and therefore, respondent No.2 registered offence vide crime No. 45 of 2003 against the petitioner for the offence punishable under Section 325 and 323 of I.P.C. This respondent has given details about handing over the investigation in connection with crime No. 45 of 2003 to police constable Shri Shivram Pawar, B. No. 718. In para 7, it is specifically mentioned that the petitioner was arrested in connection with crime No. 45 of 2003 which was registered under Section 325 and 13 323 of I.P.C. and therefore, the said detention in connection with the said crime was not wrongful. This respondent has specifically denied the allegations levelled against him in the petition. 7 In order to find out correct position about alleged illegal detention of the petitioner, we have perused the grounds taken in the petition and also the annexures annexed to the petition. We have also noticed the contents in the affidavit in replies filed on behalf of the respondents. The relief claimed by the petitioner can be entertained and granted only if the petitioner was illegally detained by the respondent authorities as alleged by him. The another prayer, which is sought by the petitioner is to take appropriate action against respondent Nos. 1 to 3. The said prayer can be entertained and granted only if we come to the conclusion that the actions taken by the respondents against the petitioner were illegal, with malafide intention and/or contrary to the law. We have given due consideration to the submissions made by the counsel for the petitioner. At the cost of repeatation, it is relevant to mention at this juncture that inspite of giving opportunity to the petitioner for filing rejoinder affidavit, the petitioner has chosen not to file affidavit in rejoinder to the affidavit in replies filed by the respondents. Therefore, the averments in the affidavit in reply are remained uncontroverted. 8 The grievance of the petitioner can be entertained only if there is 14 any documents on record to show or suggest that the petitioner was illegally detained by the respondent authorities. In foregoing paragraphs, we have referred to the affidavit in replies filed by the respondents and also to the annexures thereto. Not only this but the annexures to the petition also unequivocally indicate that the petitioner was arrested in connection with crime No. 45 of 2003, which was registered under Sections 325 and 323 of I.P.C. On plain reading of Section 325 of I.P.C., it is clear that the said offence is cognizable offence and therefore, the arrest of the petitioner on 24.4.2003 in connection with the said crime No. 45 of 2003 cannot be said to be illegal detention. It has come on record that the injuries sustained by the complainant Mr. Shirsath was grievous in nature. Therefore, the police officers were justified in registering the crime No. 45 of 2003 under Sections 325 and 323 of I.P.C. In connection with the said crime charge sheet was filed before the competent Court. On perusal of the charge sheet, it clearly reveals that the said crime was registered under Section 325 and 323 of I.P.C. and therefore, the arrest of the petitioner on 24.4.2003 and his further detention till 25.4.2003 does not amount to illegal detention. 9 With the assistance of the counsel for the petitioner and the learned A.P.P., we have carefully and minutely perused the pleadings in the petition and also averments in the affidavit in replies and documents annexed thereto and we are of the considered opinion that 15 there was no illegal detention or arrest in connection with chapter case which was registered against the present petitioner. All three affidavits are filed on behalf of the respondents, have specifically denied the arrest of the petitioner in connection with chapter case, from 14.4.2003 to 16.4.2003. The petitioner has failed to produce any proof or documents on record which would suggest that the petitioner was illegally detained in chapter case from 14.4.2003 to 16.4.2003. There is no iota of evidence except the bare words in the petition to suggest that the petitioner was illegally detained in chapter case. In absence of any proof of illegal detention or for that matter any other documents including the affidavit of any other person that the petitioner was illegally arrested, it is not possible to rely on bare words of the petitioner that the petitioner was illegally detained by the respondents authorities and therefore entitled for relief claimed in the petition. It is not necessary to burden our judgment with any other points raised in the petition since the petitioner has utterly failed to demonstrate before us that the petitioner was illegally detained by the respondent authorities. Though the counsel for the petitioner relied on various judgments of this Court and the Apex Court, however, those judgments are not applicable in the facts of this case for the reason that on facts the petitioner has failed to demonstrate that he was illegally detained by the respondents. 16 10 In the result, we find that there is no any document/record made available by the petitioner to come to the conclusion that the petitioner was illegally detained. Therefore, we do not find any substance in the writ petition. Rule discharged. Writ petition stands dismissed. No order as to costs. *****