1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 19 OF 2001. Shri Antonio Sebastiao Mervyn Degbertde Piedade Pacheco, resident of House No.349, Borda, Margao-Goa. ... Petitioner. Versus (1) State of Goa, through its Chief Secretary, having office at Secretariat, Panaji-Goa. (2) The Deputy Inspector General, State of Goa, having office at Police Headquarters, Panaji-Goa. (3) Shri S. Caeiro, Police Inspector, through office of D.G.P., Police Headquarters, Panaji-Goa. (4) Shri Pramod Shirwaikar, Police Sub-Inspector, through office of D.G.P., Police Headquarters Panaji-Goa. (5) Shri A. Shaikh, Head Constable through office of D.G.P. Police Headquarters, Panaji, Goa (6) Shri K. Komarpant, Police Constable, through office of D.G.P., Police Headquarters, Panaji-Goa. (7) Shri R. R. Naik, Police Constable, through office of D.G.P.,Police Headquarters, Panaji-Goa. 2 (8) Shri Andrian Menezes, Police Constable,through office of D.G.P., Police Headquarters, Panaji-Goa. (9) Shri Akthar Khan, Driver, Margao Police Station, Margao -Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr.M.S.Sonak with Mr. Ryan Menezes, Advocates for the petitioner. Mr. S. R. Rivonkar, Govt. Advocate for the respondent Nos. 1 & 2. Mr. S. G. Dessai, Senior Advocate with Mr. S. Kalshawkar, Advocate for the respondent No.4. Coram :- S. A. BOBDE, & R. C. CHAVAN, JJ. Date of reserving the Judgment: - 18 th June, 2008. Date of pronouncing the Judgment: - 30 th June, 2008. ORAL JUDGMENT : ( PER R. C. CHAVAN, J. ) 1. By this petition, the petitioner seeks an enquiry into incidents from 28/04/1994 to 01/05/1994, a direction to initiate disciplinary proceedings against the guilty officers and claims compensation for the wrong done to him. 2. The factual context, in which the petitioner was required to approach this Court, about which there can be no dispute, is as 3 under: The petitioner, an employee of Public Works Department, is owner of a property, in part whereof, respondent No.9, a driver with the police department, resides. Respondent No.9 filed a suit for a mandatory injunction, directing Public Works Department to release a water connection, without joining the petitioner as a party. Civil Court granted a temporary mandatory injunction on 31.03.1994 directing that water connection be provided within 30 days. On 28.4.1994, when Public Works Department's employee went to provide connection through the petitioner's property, the petitioner obstructed and snatched pickaxe from a Public Works Department's employee. On complaint of the employee, respondent No.4, P.S.I. Shirwaikar registered an offence. The petitioner too went to police station to lodge a report. He was arrested. 3. It is not disputed by respondent No.4 that he did handcuff the petitioner while taking the petitioner in a jeep, for effecting recovery of pickaxe, but claimed that he removed the handcuffs while alighting from the jeep. The petitioner however, alleges that he was handcuffed throughout and paraded as such in his neighbourhood. After the petitioner was bailed out, on 1.5.94 when the petitioner went to lodge another complaint of trespass, respondent No.4 put the petitioner under arrest purportedly under section 151 of Criminal Procedure Code. The 4 petitioner complained of chest pain, and was taken in handcuffs to hospital, though according to police, he was not so handcuffed. 4. The petitioner initially approached this Court by filing Writ Petition No.18 of 1995 for similar reliefs. By judgment dated 14.1.1998, the petitioner was directed to approach the authority under the Protection of Human Rights Act, 1993 for redressal of his grievances. The order mentions that in case compensation is not determined by the said authority, liberty was reserved to the petitioner to approach appropriate forum. The petitioner approached the Human Rights Court at South Goa, which expressed inability to proceed with the complaint for want of necessary infrastructure and Public Prosecutor etc. It may be mentioned that the Public Prosecutor came to be appointed only after the special court under Protection of Human Rights Act expressed its inability to proceed further in the matter. The petitioner then applied to said Court for making a reference under section 395 of Criminal Procedure Code to this Court. The learned Session Judge by his order dated 7.9.2000 declined to make a reference and this is how, the petitioner is again before us. 5. We have heard both the learned Senior Counsel for the petitioner and respondent Number 4. We have also heard learned Government. Counsel for the respondent Nos. 1 & 2. Learned Counsel 5 for the respondent No.4, first, contended that the petition is barred by the principles of res judicata, since some of the issues raised by the petitioner in the present petition, had already been decided by this Court and other issues had not been raised by him in the earlier petition. We do not see as to how the petition is barred by the principle of res judicata or even constructive res judicata, since the grievance of the petitioner, namely, that his human rights were breached by being arrested and handcuffed without any justification, is yet to be redressed. We may point out that in the judgment dated 14.1.98, by which the earlier petition was disposed of, liberty was specifically reserved for the petitioner to approach appropriate forum if his claim for compensation was not decided. Since virtually none of his claims were decided, we find that the petitioner had justification to approach this Court by the present petition. 6. By order dated 25.9.2002, in this petition, this Court directed Human Rights Court, South Goa District, Margao to record evidence and give findings on the seven issues formulated by this Court, which read as under : i) Whether the petitioner proves that on 28.4.94, after arresting the petitioner at 1.30 p.m. and putting him behind bars; a) The petitioner was not supplied with food or water; b) The petitioner was not permitted to contact his family 6 members or advocates ; c) The petitioner was not permitted to make use of phone to contact his family members ; d) Respondent No.4 insisted that petitioner wears uniform provided to the prisoners. ii) Whether the petitioner proves that on 28.4.1994 at about 3.00 p.m. petitioner was handcuffed, taken in a jeep to his residence and paraded on the road adjoining his house in handcuffs in full view of the public with purported motive of recovery of certain objects and thereafter brought to the police station and kept behind bars upto 7.30 p.m. without removing the handcuffs ? iii) Whether the petitioner proves that on 1.5.1994 after arresting the petitioner at about 10.30 p.m. he was handcuffed whilst lodged behind bars ? iv) Whether the petitioner proves that on 1.5.1994 no vehicle was provided to the petitioner to take him to the Hospicio Hospital and on the contrary he was paraded on the streets of Margao in handcuffs from police station to Margao post office ? v) Whether the petitioner proves that he was taken to Hospicio Hospital of Margao in handcuffs and the handcuffs were retained when he was shifted to Goa Medical College where he was admitted to prisoners ward and tied up with fetters and handcuffs to the bed till 8.30 a.m. on 2.5.1994 ? 7 vi) Whether the arrests of the petitioner on 28.4.1994 and 1.5.1994 were legal and justified ? vii)Whether handcuffing of the petitioner on 28.4.1994 and 1.5.1994 were justified ? 7. Accordingly, the learned Judge, Human Rights Court and District Judge, South Goa recorded evidence and rendered his findings on the seven issues referred to him by his order dated 2.5.2003. He answered issue Nos.1 to 5 in affirmative and issue Nos. 6 and 7 in negative, that is, in effect, he held in favour of the petitioner in all issues. 8. The learned Senior Counsel for the respondent No. 4 contended that the learned District and Session Judge held against the respondents principally because of failure of the respondents to produce case diaries, which the learned Judge could have himself called in view of the provisions of Section 172 of Criminal Procedure Code. First, we would reject the submission that the learned District and Session Judge had based his findings principally on non-production of the case diaries. It was one of the grounds which he had considered. Further, there is no question of the case diaries being summoned by the District and Session Judge, since at the time, when the Session Judge was considering the issues referred to him, the criminal case which had 8 been filed against the petitioner on the basis of offence registered, had already been disposed of by the Judicial Magistrate First Class by his judgment dated 14.7.97, whereby learned Magistrate had acquitted the petitioner. Case diaries have significance till the case is under investigation or when trial is going on. Further, what was required to be produced before the learned Judge, in order to justify various actions of the respondents, was not the case diaries, but the station diaries, where all the activities in the police station are recorded. The station diary, lock-up register and arrest register, which had been referred to by the learned Judge in paragraph No.53 of his order, could have been produced by the respondents before the learned Judge and for such production, an order from the Court was not necessary. The learned Judge, therefore, rightly concluded that non-production of these documents in possession and power of the respondents, would lead to adverse inference. 9. We would now proceed to analyse the contentions raised by the parties in relation to the incident itself. It has been observed by the learned Judge in paragraph No. 78 of the order that the petitioner was justified in obstructing Jose Fernandes and Jose Cardozo from digging his property and taking pickaxe from the hand of the Jose Cardozo, in exercise of the right of defence of property. The learned Counsel for the respondents assailed this conclusion and submitted that 9 Jose Fernandes and Jose Cardozo, the employees of Public Works Department, were merely complying with mandatory directions issued by the learned Civil Judge, Senior Division, Margao given in Civil Miscellaneous application No.442 of 1993 in Regular Civil Suit No.253 of 1993, whereby the learned Judge had directed the defendants, the Public Works Department to give water connection to the plaintiff within 30 days from the order, which was delivered on 31st March, 1994. 10. Though strictly, it is not necessary to go into the merits of the order by the learned Civil Judge, it may be useful to observe that the dispute was not between the Public Works Department and the plaintiff therein, but, between the plaintiff therein, Akhtar Khan, and the petitioner herein, who is landlord of the property. Therefore, ordinarily, since the obstruction was not of the Public Works Department, but of the landlord, the landlord should have been made a party to the suit, in which orders for altering the landlord's property were sought. Apart from this, when the petitioner obstructed in execution of an order passed by the Civil Court, it would have been appropriate for the party aggrieved to approach the Civil Court for removal of such obstruction in execution of its order, and then after hearing the parties, the Court could have directed grant of police help for removal of obstruction. Here, without complaining to the Civil 10 Court of obstruction by the petitioner and without inviting an adjudication on that aspect, the plaintiff therein approached the police, and police promptly jumped into action. The observations in paragraph No.78 of the report of the learned Judge that the petitioner was justified in obstructing Jose Fernandes and Jose Cardozo, may not have been strictly necessary, all the same, they do not vitiate the conclusions drawn by the learned Judge. 11. This takes us to the question whether the respondent No. 4 were justified in arresting the petitioner first, on 28.4.1994 on the complaint of the respondent No.9, Akhtar Khan, and again on 1.5.1994 under section 151 of Criminal Procedure Code. The learned Senior Counsel for the petitioner submitted that the offences complained of, were trivial in nature and, therefore, there was absolutely no warrant for the arrest of the petitioner. Relying on the judgment of Supreme Court in the case of Jogindar Kumar Versus State of U. P., reported in (1994) 4 Supreme Court Cases 260, he submitted that arrest itself was thoroughly unwarranted. In that case, the Apex Court was considering the question of arrest of an Advocate, and in paragraph No.20 of the judgment observed as under : “ In India, Third Report of the National Police Commission at p.32 also suggested : “An arrest during the investigation of a cognizable case may be considered justified in one or other of the following 11 circumstances : (i) The case involves a grave offence like murder, dacoity, robbery, rape etc.and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims. (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines... ” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the 12 constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. 12. The learned Senior Counsel for the respondent No.4 submitted that offences for which the petitioner was arrested were punishable under sections 186, 353, 356, 379 of the Indian Penal Code. Drawing our attention to the notification dated 27.6.73 issued by the Government of Goa in exercise of powers under section 10 of Criminal Law (Amendment) Act, the learned counsel submitted that offence punishable under section 186 had been made cognizable and those under sections 188 and 506 were made non-bailable. However, we are concerned with the offence punishable under section 186, which continues to be bailable. Offences punishable under sections 353 and 13 356, too continue to be bailable, leaving only offence punishable under section 379 to be non-bailable. The learned Senior Counsel submitted that since the petitioner had committed a non-bailable offence, it was imperative for the respondent No.4 to arrest the petitioner and, therefore, the arrest was fully justified. We have carefully, considered this submission and deem it necessary to reject it reiterating the observations of the Supreme Court in Jogindar Kumar's case cited above. The police machinery must realise that it is obliged to conduct investigation, as far as possible, without touching the offender. The question of touching the offender would arise only while submitting a report under section 173 of Indian Penal Code, when the police are obliged to forward the accused along with chargesheet. Therefore, in our view, merely because the allegation of the petitioner having committed theft of pickaxe was made, it was not necessary to arrest him, particularly when the petitioner had himself reported in the police station. It would be necessary for the State Government to bring this to the notice of all police officers so that the arrests at the drop of hat are avoided. 13. Even if for the sake of argument, it is presumed for a while that the respondent No.4 had justification to effect arrest on 28.4.1994, there was absolutely no justification for arrest on 1.5.1994, as also to invoke the provisions of section 151 of Criminal Procedure 14 Code. Incidents after the arrest of the petitioner on 1.5.94 by invoking the provisions of section 151 of the Criminal Procedure Code, were more serious. The petitioner claims that he was handcuffed again and even when he was hospitalised, he was kept in the hospital in handcuffs. This fact has been deposed to by a Doctor, who was examined before the learned Judge. The contention of the leaned Senior Counsel for the respondents that Dr. Edwin Gomes, witness No.6, had no business to be in the hospital, since he was not on duty there, does not change the fact that the Dr.Gomes did see the petitioner in handcuffs in the hospital. There is absolutely no reason why the evidence of Dr. Gomes should be disbelieved. The learned Judge, therefore, rightly held that the petitioner was unwarrantedly handcuffed. 14. As for the incident dated 28.4.94, it may be useful to point out that the respondents have themselves admitted having handcuffed the petitioner, albeit for a short time. The claim of the respondents that the petitioner was handcuffed only he was taken in the jeep, has to be rejected because it is thoroughly unnatural, apart from the fact that evidence is also to the contrary. Therefore, on facts, we do not find any reason to take a view different, from that of taken by the learned Judge and hold that the petitioner was handcuffed on 28.4.94 as well as on 1.5.94. 15 15. Section 46 of the Criminal Procedure Code, which provides as to how the arrest is to be made, prescribes that the police officer shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. This implies that the arrest is to be effected by use of minimum force. In this case, the petitioner has himself come to the police station. It is not shown that the petitioner had any past criminal history to cause apprehension in the mind of the police officers that the petitioner would flee. The petitioner is shown to be an employee of the Government. In these circumstances, his handcuffing is totally unjustified. The petitioner was seemingly arrested and handcuffed in order to teach him a lesson for obstructing grant of water connection to respondent No.9, who is a police driver, which, in our view, amounts to abuse of powers and authority by concerned respondents. 16. In view of this, accepting the report of the learned Judge, we hold that the petitioner has made out a case for grant of compensation for his unwarranted arrest as well as unnecessary handcuffing. In Arvinder Singh Bagga Versus State of U.P. and others, reported in AIR 1995 SUPREME COURT 117, on similar facts, a learned District Judge had been asked to conduct an enquiry and upon considering result of the enquiry, the Apex Court had directed the State to pay compensation of Rs.10,000/- to the victim. Following this 16 precedent, and considering the fact that the petitioner was unwarrantedly arrested and handcuffed fourteen years ago, we direct the respondent No.1 State of Goa to pay to the petitioner the compensation in a sum of Rs.25,000/- within a month of this order. It shall be open to the State to initiate appropriate disciplinary or other proceedings against the delinquent officers and recover the compensation so paid from such officers, in order to ensure that the State exchequer is not burdened on account of lapses on the part of its officers. 17. Before parting with the judgment, we may observe that by and large the people of State of Goa are law abiding citizens, having respect for authority. It would be necessary for the State to ensure that this respect for authority is not eroded by any high handed actions on the part of its officers. 18. Rule is made absolute in the above terms. S. A. BOBDE, J. R. C. CHAVAN, J. SMA