1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL WRIT PETITION NO. 131 OF 2010. APPELLANT : Rajnikant S/o Daluram Borele, aged about 33 years, Occupation-Agriculturist, R/o Dutta Chowk, Pandharkawada, Tahsil, Kelapur, Distt. Yevatmal. -VERSUS- RESPONDENTS: 1 State of Maharashtra, Through its Secretary, Department of Home, Mantralaya, Mumbai-32. 1-A Director General of Police Colaba, Mumbai. 2 Special Inspector General of Police Amravati Division, Amravati. 3 Superintendent of Police Yevatmal. 4 Abdur Rahman (the then Supdt. Of Police Yevatmal), presently posted as Additional Director of Police, Principal Police Training Institute, Solapur. 5 Subhash Anmulwar the then P.S.O., Police Station Yevatmal (City), presently posted as P.S.O., Wani, Tah. Wani, District Yevatmal. Shri M. I. Dhatrak, Advocate for the petitioner. Shri V. A. Thakre, APP for State respondent nos.1 to 3. Shri F. T. Mirza, Advocate for Respondent no.4. Shri Anil Mardikar, Advocate for respondent no.5. CORAM: A. H. JOSHI AND A.R.JOSHI, JJ. DATED: 29TH SEPTEMBER 2010. ORAL JUDGMENT : (PER A.H. JOSHI,J) 1. Rule. Rule is made returnable forthwith and is heard finally by consent. 2. The petitioner has prayed for compensation in a sum of Rs.5,00,000/- towards his wrongful arrest 2 caused by the respondent no.5 on 19-10-2007. The other prayers are for taking departmental action against the respondent nos.4 & 5 for causing malicious arrest of the petitioner. 3. The respondents were noticed and the respondent nos.3 and 5 have separately filed the reply. Petitioner has filed a rejoinder. 4. The facts in brief are : (a) The petitioner was accused no.1 in Criminal Case No.393 of 1999. (b) A non bailable warrant was issued against the petitioner. The petitioner suo motu appeared before the Judicial Magistrate First Class, Yavatmal on 5-10-2007 and the Non-bailable Warrant was cancelled and the petitioner was released on bail. (c) On that date, Non bailable warrants were issued against the respondent nos.2 to 6. (d) On 19-10-2007, a Non-bailable warrant was again issued from the Court of the Judicial Magistrate First Class, Yavatmal, for arrest of the petitioner and on the same date, the petitioner was arrested. (e) According to the petitioner, he was arrested at about 5 p.m. at Gumnapur. (f) According to the police, the petitioner was arrested at Wani some time around 8 p.m. and the petitioner was got medically examined. (g) On 20-10-2007 at about 00.35 hours, the Police Station concerned and in particular, the respondent no.5 got a communication from the Court of the Judicial Magistrate First Class, Yavatmal informing about the cancellation of warrant on the ground that it was mistakenly issued. (h) The petitioner has been released soon after 3 receipt of letter from J.M.F.C. 5. According to the petitioner :- (a) He had filed complaints as well as writ petition against the respondent no.4 in relation to his wrongful acts pertaining to the recruitment etc., & therefore, the respondent no.4 has animus against the petitioner. Due to said animus, the respondent no.4 has caused the arrest of the petitioner at the hands of the respondent no.5. (b) The act of procuring the warrant from the Court of Judicial Magistrate First Class, Yavatmal, is done at the behest of the respondent no.5. (c) Entire act of issuance of Non-bailable warrant, fact of arrest and wrongful detention for about 5 hours is caused on account of the malacious act of the respondents no.4 & 5. 6. The petitioner has placed reliance on various documents, inter alia :- (i) Report submitted by the Superintendent of Police, Yavatmal on 8-6-2009, in which a recourse is made to an enquiry to be conducted by the Sub Divisional Police 4 Officer, Yavatmal, relating to wrongful arrest. (ii) The report of the S.D.P.O., Yavatmal dated 12-1-2009 ANNEXURE R-1 to the affidavit of the respondent no.3 is at page 82 of record. (iii) Other documents such as information supplied to the petitioner under Right to Information Act, relating to details of un-served warrants etc. (iv) Report of superiors against the respondent no.4 about his being a biased Officer etc. 7. It is seen from the report of S.D.P.O., dated 12-1-2009 that at about 3 to 3.30 p.m. on 19-10-2020 “two police constables had arrived” in the Office of the Judicial Magistrate First Class, Yevatmal and requested the clerk concerned to issue non-bailable warrant as it was required and accordingly, warrant was prepared and hurriedly got signed from the Magistrate was delivered. 8. Learned Advocate Mr. Dhatrak has argued that the liability of the respondent nos.4 & 5 towards tortuous and malacious act of arresting the petitioner and violating his fundamental right of freedom is duly demonstrated from the documents, which are at Annexure Nos. P-2 to P-4 of his rejoinder and Annexure No.R-1 to affidavit of respondent no.5. Based on these 5 documents, he urges that the question as to whether these respondents are responsible for the wrongful arrest can be decided without any further evidence and therefore, present case is a fit case to award compensation even in the writ jurisdiction, and grant other prayers made in the petition. 9. Learned Advocate for the petitioner has placed reliance on the reported judgment 2001 ALL MR (Cri) 1731, Shri Walmik S/o Deorao Bobde Vs. The State of Maharshtra & anr., to urge that the detention would be wrongful even if arrest is caused on the basis of warrant when the arrest was otherwise not warranted and the accused was paraded, handcuffed. 10. The writ petition is opposed by the respondents raising the grounds namely: (a) It is clear from the order of cancellation of warrant issued by the Magistrate that the warrant was issued by mistake. (b) Except the report of the Sub Divisional Police Officer where it is said that two Police Constables had sought for warrant, it is not established that the respondent no.5 was in any manner himself instrumental or for issuance of the Non bailable warrant. (c) The observation contained in the report of the S.D.P.O. that when the accused person 6 was brought for effecting arrest in the police station, the warrant was cancelled and the document was with his Lawyer, it was a matter of hardly 30 to 45 minutes to verify said fact, however, it was not done and therefore, the respondent no.5 is responsible for the episode, is not a conclusive fact finding since the said report is in the nature of preliminary enquiry and was not based on formal hearing. (d) The nexus between the respondent no.5 and the arrest is not proved. (e) The nexus between the respondent no.4 and the arrest and there is no evidence that he has influenced his position, is not proved. (f) The inference that because the petitioner is instrumental to certain enquiries against the respondent no.4, that the respondent no.4 has caused wrongful arrest cannot be drawn on the basis of the documents available on record. (g) If and what amount of compensation is liable to be paid needs fact finding in a suit. 11. The questions, which arise in this petition are :- (i) Whether the Respondent Nos.4 & 5 are liable to pay compensation of Rs.5 lakhs being 7 responsible for wrongful arrest and detention of the petitioner. (ii) Whether the Respondent NO.1 is vicariously liable for payment of compensation towards alleged tortious acts of the Respondent nos.4 & 5. (iii) Whether it is necessary to direct the Respondent No.1 and 1A to take discipoinary action against the Respondent nos.4 and 5. 12. This Court has considered the documents relied upon by the petitioner and examined various submissions. Prima facie, the arrest of the petitioner is based upon the warrant which was not liable to be issued, but was mistakenly issued. No sooner the Magistrate realized that the warrant was wrongfully issued, he had, suo motu, cancelled the warrant and cancellation was punctually communicated in the same night. 13. It is not in dispute that soon after the cancellation was communicated, the respondent no.5 has punctually released the petitioner. 14. Now the questions as indicated in para No.11 herein before are sought to be decided in summary jurisdiction. It is necessary to do fact finding as to whether the Police Constables who had gone to collect 8 the warrant were deputed by the respondent nos.4 & 5 and whether plan to arrest is product of conspiracy of the respondent nos.4 & 5. 15. Considering the material on record, this Court is of considered view that as to whether on facts the respondent nos.4 & 5 are responsible for wrongful arrest and as to whether the respondent no.1 State is liable vicariously towards the act of the respondent nos.4 & 5 are the matters which require fact finding and for which the proper and appropriate remedy is by way of full & formal enquiry as done and as required in a Civil Suit. 16. Considering that this is a matter pertaining grievance as to violation of fundamental rights, the matter need not end here and it would be open to the petitioner to file appropriate proceedings for claiming compensation according to law. 17. In so far as the petitioner's reliance on the reported judgment 2001 ALL MR (Cri) 1731, Shri Walmik S/o Deorao Bobde VS. State of Maharashtra and anr., is concerned, the liability of State to pay compensation and the liability of the respondent nos.4 & 5 to pay the same is contingent upon the proof of facts that they are individually responsible. 9 18. In the result, we do not propose to grant any indulgence, and leave the question Nos.1 & 2 open for adjudication in a suit if filed. 19. So far as the other prayers contained in the petition as to directions are concerned, this Court believes that the petitioner's representation, if any, filed before the State Government - Director General of Police would be considered on its own merit. For this purpose, Learned APP is directed to forward copy of this Judgment to the respondent no.2. 20. In the circumstances, parties are directed to bear own cost. JUDGE JUDGE //MULEY//