1 cri-wp-3623-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 3623 OF 2010 Mr. Sakharam @ Adesh Chindu Titkare ..Petitioner Vs. Mrs. K.P.Gavit and Ors. ..Respondents .... Mr. Deepak Natu with Ms. Sunita Ghane i/b N. Deepak and Co. for Petitioner Mr. D.P.Adsule A.P.P. for Respondent-State .... CORAM : P.V.HARDAS AND N.D.DESHPANDE, JJ. DATED : MARCH 09, 2011 PER COURT: 1 This is a petition under Article 226 of the Constitution of India by which the petitioner prays for issuance of writ of mandamus directing respondent 3 to initiate action against respondents 1 and 2 in respect of the illegal detention of the petitioner for a period of more than 16 hours inspite of order passed by the Sessions Judge which is annexed to the petition as Annexure-F and for initiating departmental enquiry against respondents 1 and 2 and punish them under the procedure which is 2 cri-wp-3623-10 established under the law. 2 It appears that the petitioner who was apprehending his arrest had filed an application before the Sessions Court at Greater Mumbai on 29.11.2010. Accordingly by order dated 30.11.2010 anticipatory bail order came to be passed in favour of the petitioner. It appears that the petitioner came to be arrested in the morning of 1.12.2010 i.e. at about 5.35 a.m. and was produced before the Magistrate at 3.10 p.m. on 1.12.2010. The petitioner was remanded to custody and later on in the evening the learned Magistrate was apprised of the fact that the Sessions Court had granted an order of anticipatory bail in favour of the petitioner and accordingly the learned Magistrate released the petitioner on bail. The petitioner therefore contends that the respondents who were aware about the order passed by the Sessions Judge, ought to have released the petitioner immediately upon effecting the arrest and could not have detained him till he was ultimately released on bail by the learned Magistrate. 3 On notice of this petition being given to the respondents, respondents have filed their affidavit in reply. In the affidavit in reply, particularly at para 9 it is stated that petitioner was arrested on 1.12.2010 in the presence of his wife Rupali. The officer effecting arrest was not 3 cri-wp-3623-10 informed about the passing of the order of anticipatory bail in favour of the petitioner. It is further stated that when the wife of the petitioner had visited police station in the morning, even at that time, the police officers were not apprised about any interim order of not to arrest being passed on an application submitted by the petitioner. The petitioner was accordingly produced before the Metropolitan Magistrate, 49th Court, Vikroli, Mumbai and the learned Court was pleased to grant remand and the petitioner was sent for police custody for 7 days. At para 10 of the affidavit in reply, it is stated that the petitioner was produced before the Metropolitan Magistrate and when the petitioner was produced before the Metropolitan Magistrate no complaint of illtreatment or harassment or any sort of allegations were made before the learned Court. At para 11 it is stated that advocate of the petitioner appeared in the afternoon and submitted copy of the interim order and upon receipt of the same, the learned Magistrate directed to release the petitioner immediately. 4 The learned Counsel for the petitioner has urged before us that copy of the writ of the order was served on the respondents on 1.12.2010. This is evident from the acknowledgment which has been given by the respondents. The acknowledgment bore only the signature without time being stated on it. According to the learned Counsel for the petitioner the copy of the writ was served on the respondents by clerk of the advocate 4 cri-wp-3623-10 who had represented the petitioner. However, affidavit of the Clerk has not been filed. The respondents in their affidavit in reply have clearly stated that they were unaware about any order being passed in favour of the petitioner. It is also stated that wife of the petitioner who was present at the time of effecting arrest, had also not apprised them about passing of the order. The petitioner states that he was infact arrested not in the morning of 1.12.2010 but in the evening of 30.11.2010. However, the remand papers clearly spell out the fact that the petitioner was arrested in the morning on 1.12.2010. 5 We have carefully examined the pleadings of the parties and we have also carefully considered the submissions advanced before us by the learned Counsel for the parties. This petition raises disputed question in respect of the communication of the order particularly the time when the Order was communicated. Neither the wife of the petitioner nor the petitioner had apprised the respondents about the passing of the order. The Petitioner had also not apprised the learned Magistrate about the anticipatory bail being granted to him, when the remand order was passed. However the aforesaid disputed facts cannot be decided in exercise of writ jurisdiction under Article 226 of the Constitution of India. Prima facie we find that the petitioner has not been able to place any material on record, which would even prima facie indicate that the 5 cri-wp-3623-10 respondents who were aware about the orders which were passed by the Sessions Court in favour of the petitioner, in order to justify the issuance of the writ granting the prayers prayed for by the petitioner. In such circumstances, therefore according to us, there is no merit in the petition and petition therefore is summarily dismissed with no order as to costs. [N.D.DESHPANDE, J.] [ P.V.HARDAS, J. ]