1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 163/2011 Chandrakant Mohandas Bhagchandani vs. State of Maharashtra, through its Secretary, Department of Home , Mantralaya Mumbai 32 and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Ms P.D.Rane, Advocate for the petitioner. Mrs. Joshi, APP for the respondents. CORAM : MRS. V.K.TAHILRAMANI & P.B.VARALE, JJ DATE : 14.3.2011 Heard the learned counsel for the petitioner and learned APP for the respondents. 2. The case of the Petitioner is that he has been illegally detained by the Police Authority of Jaripatka Police Station. Hence, the petitioner has prayed for compensation of Rs. 5 lacs for being illegally detained. He has also prayed that action be taken against the erring officers. 3. The case of the petitioner is that on 24.11.2010 at 12 midnight, the petitioner who is the owner of a Bar was sitting in the bar. At that time one Sanjay Tatke came to the Bar along with others. They were denied 2` entry inside the Bar stating that the Bar was closed. Despite being told, Sanjay along with others forcibly entered the Bar and also abused the employees of the petitioner. It is his grievance that though he approached the police with the complaint as above, FIR was not registered by the Police but on the other hand he was taken into custody by the police in a case under section 325 of the Indian Penal Code. 4. It is noticed that in fact Sanjay Tatke went to Jaripatka Police Station stating that on 24.11.2010 some time after 10.00 p.m. when he went to the Bar of the petitioner, he was told that Bar is closed and he was not allowed to enter therein. However, he noticed some 15 persons were drinking liquor in the said Bar. When Sanjay protested he was abused and beaten by means of stick. While beating him those persons were shouting 'Maro Maro'. He has stated that his right hand and right leg were fractured in the incident and he fell unconscious. Thereafter, he was removed to the hospital. After he regained consciousness he gave his statement to the Police on the basis of which F.I.R. Came to be registered on 26.11.2010 under section 325 IPC against the petitioner and the petitioner immediately came to be arrested. Thus, the petitioner came to be arrested pursuant to an FIR lodged by Sanjay. 3` 5. The learned counsel for the petitioner submitted that though the FIR was under Section 325 of the Indian Penal Code, in the remand application the police have stated section 326 of the Indian Penal Code with mala fide intention. As far as this aspect is concerned, it is noticed that in the remand report it is stated that on 27.11.2010 Medical Report of the complainant Sanjay was received. In the medical report it is noticed that he has sustained grievous injury which would fall under section 326 of the Indian Penal Code and hence section is altered from Section 325 to 326 of the Indian Penal Code. 6. Looking to the FIR lodged by Sanjay, it cannot be said that police illegally detained the petitioner. It is obvious that police have arrested the petitioner pursuant to the FIR lodged by Sanjay and after looking into the medical report they have altered the case from section 325 to 326 of the Indian Penal Code. In such case no fault can be found with the police authority and it certainly can not be said to be a case of illegal detention. 7. The learned counsel for the petitioner drew our attention to the decision in the case of T.T.Antony vs. State of Kerala and others reported in 2001 CRI. L.J. 3329 and relied upon the following observations; 4` “Take a case where an FIR mentions cognizable offence under sections 307 or 326 I.P.C. And the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh Fir under Section 302 I.P.C. Need be registered which will be irregular in such a case alteration of the provision of law in the first FIR is the proper course to adopt.” Relying on the above observations, the learned counsel for the petitioner also submitted that when the police had registered FIR under section 325 of the Indian Penal Code in the remand application they could not have changed the section from 325 to 326 of the Indian Penal Code. We are in the respectful agreement with the observations in the above decision and we find that the very course has been adopted by the investigating agency in the present matter. Thus, we fail to see how the observations in the said decision would help the petitioner. 8. Thereafter, the learned counsel for the petitioner contended that the case would not fall under section 326 of the Indian Penal Code. She has drawn our attention to the fact that the injured person i.e. Sanjay has stated that he was assaulted by stick. To support her contention that assault by stick would not fall under 5` section 326 of the Indian Penal Code, she has relied on the decision in the case of Takhaji Hiraji vs. Thakore Kubersing Chamansing and others reported in 2001 CRI. L.J, 2602 in which in para no. 25 it is observed that insofar as accused Gajrabai Magansing is concerned, her causing grievous hurt to Viraji Devaji by a stick is proved beyond reasonable doubt and looking to the eye witnesses she was rightly convicted by the Sessions Judge under section 325 of the Indian Penal Code. The learned counsel submitted that in the present case also the accused person is stated to have assaulted with stick, hence, the case would not fall under section 326 of the Indian Penal Code and it would fall under section 325 of the Indian Penal Code. 9. As far as the above aspect is concerned, it is noticed that these observations have been made after the evidence was led in the said case and thereafter after appreciating the evidence led in the case these observations have been made. On perusal of the said decision, it is observed that the description of the stick used by the accused therein is not discussed and as the evidence of that case is not before us, we have no way of knowing the dimension of the stick to know whether it fell in the category of dangerous weapon or not. However, in the present case the evidence has yet to be led and after the evidence is led the dimension of the stick would be known to the court and then only the 6` court can decide as to whether it was a dangerous weapon or not as visualised under section 326 of the Indian Penal Code. We do not subscribe to the view of the learned counsel for the petitioner that a stick under no circumstance can be said to be a dangerous weapon. In our view, It would all depend on the dimension of the stick used by the accused person. Thus, we find no merit in this submission. 10. Thereafter the learned counsel for the petitioner submitted that the police ought not to have immediately registered FIR in this case. The police should have conducted preliminary inquiry in the matter and ought not to have immediately arrested the petitioner. However, it is noticed that the Supreme Court in Ramesh Kumari vs. State ( NCT of Delhi) & others 2006(2) Scale 457 has observed that when a complaint relating to cognizable offence is received by the police, the police have no option but to immediately lodge FIR and thereafter proceed to investigate the matter. Hence, we do not find any substance inthis contention. 11. The learned counsel for the petitioner then relied on the decision in the case of Smt. Amrawati and another vs. State of U.P. (2005 Cri.L.J., 755) wherein the Supreme Court in para no. 18 has observed that no arrest can be made because it is lawful for the police 7` officer to do so. She submitted that there should be some justification for the police to arrest the petitioner. As far as this contention is concerned, it is noticed that a case under section 325 of the Indian Penal Code was lodged against the petitioner, Medical report prima facie showed the case fell under section 326 of the Indian Penal Code and, therefore, section was altered from 325 to 326 of the Indian Penal Code. Moreover, on perusal of the remand application, we find sufficient reasons have been made out by the police for seeking police custody of the petitioner. The learned Magistrate also after being convinced about the reasons for seeking police custody granted police custody of the petitioner. 12. In view of all the above facts, we are of the opinion that no case is made out of illegal detention. Hence, there is no question of grant of any compensation to the petitioner or of directing that action be taken against the police authorities. 13. In view of the above we find no substance in this petition, hence the petition is rejected. JUDGE JUDGE patle 8`