1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2554 OF 2008 Swapnil Ramesh Deshmane & Anr. .. Petitioners V/s The Special Executive Magistrate & Ors. .. Respondents Mr.K.S.Patil for the petitioners. Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.V.V.Purwant for Respondent No.1. Mr.V.B.Konde-Deshmukh, APP for the State. CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 9th July, 2009. P.C.: . By this petition under Article 226 of the Constitution of India, the petitioners interalia pray for releasing them unconditionally from the Yerwada Central Jail where they are detained pursuant to the order dated November 17, 2008 passed by the first respondent in Chapter Case No.551 of 2008; for quashing and setting aside all the proceedings in the said Chapter case as also interim order dated November 17, 2008 passed by the first respondent in the said case; for direction to the respondents to pay Rs.10 lakhs as and by way of compensation to the petitioners for their illegal and malafide detention from November 17, 2008 to December 15, 2008. The petitioners also seek direction for taking appropriate action against the first respondent for their illegal and malafide detention. 2. The petitioners claim that they are students and agriculturists and they 2 were arraigned as accused in CR No.185 of 2006 registered with the Indapur Police Station for the offence punishable under Section 302, 307, 143, 147, 148, 149, 504, 506 and 323 Indian Penal Code (for short IPC”). The petitioners were arrested on December 16, 2006 in connection with the said case. The petitioners preferred Criminal Application No.2940 of 2008 in this court for enlarging them on bail. The petitioners were enlarged on bail by an order dated September 17, 2008 on executing a personal bond of Rs.30,000/-each alongwith one or two sureties to make up the said amount. By that order, the petitioners were directed to report to Indapur Police Station once in a week. 3. It is the case of the petitiones that as per the directions of this Court, they completed the requisite formalities and were released on bail from the Yerwada Central Jail. As per this Court’s order the petitioners went to Indapur Police Station on November 16, 2008 at 9.30 a.m.for reporting. The petitioners were arrested and were kept in custody for whole day on November 16, 2008. On November 17, 2008 the officers attached to the Indapur Police Station produced the petitioners before the first respondent at Pune who was at the relevant time working as Special Executive Magistrate (for short “SEM”) at Pune. The first respondent is also a police inspector. On the same day, viz.November 17, 2008 the first respondent served them with the copy of show cause notice u/s.111 of the Criminal Procedure Code, 1973 (for short Cr.P.C.). It is the case of the petitioners that the first respondent demanded Rs.25,000/- each from the petitioners and threatened to detain them under section 110 (e) (g) of the Cr.P.C.,if they do not accede to the said demand. 3 4. The petitioners claim that they expressed their inability to pay such huge amount to the first respondent whereupon he served them order u/s.116(3) of the Cr.P.C.directing them to produce the solvent surety of Rs.1 lakh alongwith one surety of the Municipal Corporator by way of interim measure. The petitioners were sent to Yerwada Central Jail and were in jail till their release on December 6, 2008. 5. The first respondent Maruti Vitthal Ingawale, made an affidavit contending that the proceedings initiated by him against the petitioners were not malafide. It is his further case that the order passed by this Court enlarging the petitioners on bail in CR No.185/2006 was not brought to his notice by the petitioners. Since the petitioners were accused in CR No.185/2006 and there was one NC complaint and two applications received by the Police Station that indicated that the petitioners disturbed public peace, he had issued order on November 17, 2008. 6. By the order dated January 21, 2009 the Division Bench of this Court (Bilal Nazki and Anoop V.Mohta, JJ.) noted that the petitioners remained in custody almost for 23 days, which was obviously in wrongful confinement. This Court quashed the impugned order and imposed costs of Rs.10,000/- on first respondent. It was further clarified that the said costs shall not be paid by the State, but shall be paid by the first respondent personally to the petitioners. The Court directed the State to pay costs to the petitioners within four weeks from the date of passing of the order and ordered recovery of the same from the salary of the first respondent. The Court also issued show cause notice to the first respondent to show cause as to why 4 prosecution be not ordered for wrongful confinement of the petitioners by passing illegal orders. 7. We have heard counsel for the parties at some length. We have also noted that the amount of Rs.10,000/- is paid to the petitioners as ordered by this Court on January 21, 2009. On behalf of the first respondent, further affidavit is made wherein he has tendered unconditional apology to this Court. He has further set out that he has realised mistake committed by him while passing the order on November 17, 2008. He was appointed on the post of PSI on June 15, 1988 and thereafter promoted to the post of Police Inspector w.e.f.April, 2007. He took charge of the post of SEM only on October 1, 2008 and the imugned order was passed by him on November 17, 2008. After going through the order passed by this Court dated December 5, 2008 he immediately released the petitioner on December 6, 2008. He has handed over the charge of SEM on Januay 13, 2009. He has further set out that he was not given any special training for conducting the matters as SEM. He reiterated that the impugned order dated November 17, 2008 was passed only within few days after taking the charge as SEM on October 1, 2008. Mr.Dhakephalkar, learned Senior Counsel invited our attention to the order dated June 18, 2009 in Criminal Writ Petition Nos.2682/2008 1301/2008 passed by the Division Bench of this Court (Bilal Nazki & F.M.Reis, JJ.). After hearing the learned Public Prosecutor and the Executive Magistrate the Court issued directions in paragtraph 9 of the order, which read as under:- “After hearing the learned Public Prosecutor and also the Executive Magistrate, who was also present in the Court, we give benefit of doubt to the Magistrate on the ground that perhaps these Magistrates are not 5 aware of the law. They are not trained to act as Magistrate. We understand they have not undergone any training before they were given the powers of a Magistrate. When a person is appointed or posted as an Assistant Commissioner of Police, he is almost mechanically appointed as an Executive Magistrate and is given authority to exercise powers under Chapter VIII of the Criminal Procedure Code. Since the Government is not interested n taking away these powers from the Police Officers and handover the powers to judiciary or to revenue officials, we are inclined to give the following directions: 1. That the State Government shall immediately take steps to train its all Executive Magistrates so that they understand as to how the provision of Chapter VIII of Criminal Procedure Code have to be applied. 2. We understand that there is a Police Academy in the State. All the Executive Magistrates should undergo a crash course. Preferrably the Sessions Judges should be invited to teach these Magistrates about the nuances of law, so that the powers are not abused or misused by the Executive Magistrate. 3. Whenever an order is passed by a Magistrate at interim stage or a final stage requiring the person to give a bond, he shall be given sufficient time to furnish the bond and the surety. 4. At the stage of inquiry, the Magistrate shall not ask for an interim bond pending inquiry, unless the Magistrate is satisfied himself about the truth of the information sufficient to make out a case for seeking a bond. 5. Whenever an Executive Magistrate passes an order under sub- section (3) of Section 116 of Chapter VIII of Cr.P.C.directing a person to be sent to jail, a copy of the order shall be sent to the learned Principal Sessions Judge, immediately. 6. On receiving copy of the order, the learned Principal Sessions Judge shall go through the order and if he finds a case of revision, he may intervene u/s.397 of the Cr.P.C. 7. A copy of the order directing the person to be sent to jail under Chapter VIII of Cr.P.C.shall also be sent to the immediate superior of the Magistrate in his department.” 6 8.. As noted above, the first respondent took charge as SEM on October 1, 2008 and within a short time of his taking the charge, he had passed the impugned order on November 17, 2008. He was not given any special training for conducting matters as Special Executive Magistrate. He has also tendered unconditional apology to this Court, which we find to be genuine and honest. As per the order dated January 21, 2009 the petitioners have been paid Rs.10,000/- and the petitioners have been compensated for their unlawful detention. The first respondent has genuinely accepted mistake committed by him in passing the order on November 17, 2008. We are satisfied with the explanation given by the first respondent and it cannot be said that the first respondent acted malafide in passing the order on November 17, 2008. We accept the explanation submitted by the first respondent and discharge the show cause notice. 9. Petition is disposed of. ( SMT.RANJANA DESAI, J.) (R.G.KETKAR, J.)