8.wp 690-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 690 OF 2010 1. Shailesh S/o. Rajnikant Kamdar, ] Age : 34 Years, Occ. : Business, ] R/o. Vardhaman Building, Agarwal Nagar, ] Dhule, Taluka & District Dhule. ] 2. Ramakant S/o. Nandkishor Gindodia, ] Age : 34 Years, Occ : Business, ] R/o. Green Park, Station Road, Dhule, ] Taluka & District Dhule. ] 3. Anil S/o. Khemchand Jain, ] Age : 39 Years, Occ. : Business, ] R/o. G.B. Compound, Malegaon Road, ] Dhule, Taluka & District Dhule. ] 4. Suresh S/o. Shrikant Ghatage, ] Age : 52 Years, Occ. : Service, ] R/o. Agarwal Nagar, Malegaon Road, ] Dhule, Taluka & District Dhule. ] Petitioners Versus 1. The State of Maharashtra, ] Through its Principal Secretary, ] Home Department, Mantralaya, ] Mumbai - 400 032. ] (Copy to be served on Public Prosecutor ] High Court of Judicature at Bombay) ] 1 8.wp 690-10.doc 2. The Police Inspector, ] Shahapuri Police Station, Kolhapur, ] Taluka & District Kolhapur. ] 3. The Superintendent of Police, ] Kolhapur District, ] Taluka & District Kolhapur. ] 4. The Director General of Police, ] Maharashtra State, Mumbai. ] 5. The Police Inspector, ] Dhule City Police Station, Dhule, ] Taluka & District : Dhule ] Respondents Mr. R.B. Raghuwanshi i/b Ms. Rutuja Ambekar for the Petitioners Mr. J.P. Yagnic, APP for the State Mr. M.K. Kocharekar for Respondent Nos. 5. CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 25th MARCH, 2011. JUDGMENT [Per HARDAS, J.]: 1. This is a petition under Article 226 of the Constitution of India by which the petitioners have prayed for issuance of writ of mandamus directing respondent nos. 1 to 4 to hold an inquiry in respect of the allegations of the petitioners about the Police atrocities and thereafter to take stern action against the guilty Police officers. By prayer clause (c) to the petition, the 2 8.wp 690-10.doc petitioners pray for awarding compensation to them for the illegal acts of the respondents authorities in defaming, harassing, torturing, illegally detaining and kidnapping the petitioners for executing the agreement and also for recovering demand draft of Rs. 8.15 Lacs from the petitioners. The petition came to be amended on 20th October 2010 and accordingly by amended prayer clause (D-1), the petitioners have prayed for issuance of appropriate writ directing respondent nos. 1, 2 and 4 to take action against the guilty officers and to punish them for illegal detention of the petitioners. 2. Such of the facts as are necessary for the decision of this petition may briefly be stated thus: i. A registered firm M/s. Joshi Freight Carriers, Dhule carries on the business as freight carriers and other transportation business. It appears that there was some dispute between one M/s. Baba Trading Company and M/s. Joshi Freight Carriers which was ultimately carried to the Supreme Court by way of Civil Appeals which came to be allowed by judgment dated 23rd January 2009. According to the petitioners by virtue of the said judgment, M/s. Joshi Freight Carriers has been granted licence / contract of transportation work for the period of two years i.e from 1st 3 8.wp 690-10.doc October 2009 to 30th September 2011. Pursuant to the award of the contract / licence to M/s. Joshi Freight Carriers, Dhule, an agreement was executed between them and M/s. Siddhivinayak Freight Pvt Ltd came to be appointed as a sole agent of M/s. Joshi Freight Carriers for a period of two years for transportation of parcels, courier and other allied services in the buses of MSRTC in entire State of Maharashtra and on those routes of interstate services operated by MSRTC. Petitioner Nos. 1 and 2 claim to be the directors of M/s. Joshi Freight Carriers while respondent nos. 3 and 4 claim to be the employees of M/s. Siddhivinayak Freight Pvt Ltd. Pursuant to the agreement, M/s. Siddhivinayak Freight Pvt Ltd initiated steps for establishing network through out the State of Maharashtra and accordingly issued advertisement in daily newspapers for appointment of agents at different bus depots / bus-stands in the State of Maharashtra. Pursuant to the advertisement, one Mrs. Meena Sudhakar Patil, proprietor of M/s. Prithvi Clearing Services, Kolhapur submitted an application on 28th July 2009 for appointment as an agent for Kolhapur city. It further appears that after scrutiny of the application submitted by the proprietor of M/s. Prithvi Clearing Services, the said M/s. Prithvi Clearing Services came to be selected as an agent for Kolhapur Central bus-stand. Accordingly, a selection letter in that behalf came to be issued by M/s. 4 8.wp 690-10.doc Siddhivinayak Freight Pvt Ltd. As a condition of the selection as an agent for the Kolhapur city, a security deposit of Rs. 8 Lacs came to be deposited by M/s. Prithvi Clearing Services though security deposit of Rs. 12 Lacs was required to be deposited. It further appears that on account of failure to deposit the balance amount of security deposit, the agreement between M/s. Prithvi Clearing Services and M/s. Siddhivinayak Freight Pvt Ltd could not be executed. It appears that though the amount of security deposit was not deposited by M/s. Prithvi Clearing Services, yet on account pressing urgency, possession of the parcel office at Kolhapur was handed over to M/s. Prithvi Clearing Services on 23rd September 2009 and initial training also came to be imparted to Mr. Sudhakar Patil, the husband of the proprietor of M/s. Prithvi Clearing Services. ii. It further appears that M/s. Prithvi Clearing Services informed the petitioners that it was not possible to continue with the business and therefore requested that the amount deposited be refunded back. It appears that there was some dispute between M/s. Siddhivinayak Freight Pvt Ltd and M/s. Prithvi Clearing Services in respect of the settlement of accounts and according to the petitioners, a report came to be lodged by the proprietor of Prithvi Clearing Services against the petitioners. Ultimately, an 5 8.wp 690-10.doc offence punishable under Sections 420 and 406 read with 34 of the IPC came to be registered against the petitioners and other directors on 17th January 2010 vide Crime No. 9 of 2010. It further appears that there was some dispute between M/s. Siddhivinayak Freight Pvt Ltd and M/s. Prithvi Clearing Services in respect of settlement of accounts which led to the exchange of notices between them with threats of forfeiture of the amount of security deposit. iii. According to the petitioners on 2nd February 2010 in the afternoon, the police officials from Shahupuri Police Station, Kolhapur came directly from Kolhapur to the office of the petitioners at Dhule and handcuffed the petitioners and took them to Dhule Police Station. According to the petitioners, when they were brought at the Dhule Police Station, then learnt for the first time regarding registration of an offence on 17th January 2010 by Shahupuri Police Station, Kolhapur. The petitioner further states that before proceeding to Kolhapur an entry came to be made in the station diary at Dhule Police Station stating therein that the petitioners were being taken to Kolhapur. The petitioners further contend that they reached Shahapuri Police Station, Kolhapur at about 3.15 a.m. in the morning and Police Inspector Shri. S.S. More began harassing and torturing the petitioners for refund of the amount of Rs. 8.15 Lacs in favour of 6 8.wp 690-10.doc respondent nos. 4 and 5 i.e the proprietor of M/s. Prithvi Clearing Services and her husband. The petitioners state that director immediately sent telegram to respondent no. 3, Superintendent of Police, Kolhapur and also addressed a telegram to the Hon'ble The Chief Justice of the Bombay High Court complaining about the illegal detention and coercion for settling the dispute. The petitioner's case is that they were coerced by respondent no. 2 i.e Police Inspector Shri. S.S. More into settling the dispute which the petitioners had no intention to settle as the repayment was a contentious issue. The petitioners were required to settle the dispute because of the threats which were hurled out to them that till the dispute was settled, they would not be released from the police station and would face serious consequences. Accordingly, representative of the petitioners at Dhule was directed on mobile phone to draw a demand draft of Rs. 8.15 Lacs in favour of respondent no. 4 and the petitioners also signed a Memorandum of Understanding / settlement agreement and after the demand draft was handed over to the representative of respondent nos. 4 and 5 that the petitioners were released at 9.00 p.m. on 3rd February 2010. 3. An affidavit in reply has been filed on behalf of respondent no. 7 8.wp 690-10.doc 2 i.e Police Inspector Sanjeev S. More. In the affidavit in reply, it is admitted that an offence came to be registered under Sections 406 and 420 read with 34 of the IPC vide Crime No. 9 of 2010. At paragraph 4, it is admitted that on 17th January 2010, statement of Mrs. Meena Sudhakar Patil, Mr. Lahu Tayappa Ghatge and Mr. Santosh Sambhaji Jadhav came to be recorded and on 1st February 2010, Head Constables Thorat and Shinde, Police Constables Chougale and Jawahire were sent to Dhule for further inquiry. It is stated that the police staff of Kolhapur city had called (1. Anil Khemchand Jain, 2. Ramakant Nandkishor Gindodia, 3. Shailesh Rajnikant Kamdar and 4. Suresh Shrikant Ghatge) for investigation on 2nd February 2010 at about 1.15 p.m. It is also admitted that the staff of Kolhapur Police Station along with the four named accused started travelling from Dhule by car towards Kolhapur and reached the Police Station on 3rd February 2010 at 11.00 a.m. and inquiries were made with the four persons who had been brought from Dhule and their statements came to be recorded. It is further stated that the statements of these four accuses disclosed that the company had already prepared a demand draft in favour of Mrs. Meena Sudhakar Patil at Kolhapur and accordingly, after completing the inquiry, the four accused were allowed to go in presence of their advocate on 3rd February 2010 at 7.30 p.m. 8 8.wp 690-10.doc 4. Mr. R.B. Raghuvanshi, the learned counsel for the petitioners has urged before us that the petitioners were neither arrested nor were they produced before a Magistrate but were detained in the Police Station since the morning of 3rd February 2010 till they were released late in the evening. The learned counsel for the petitioners therefore urged before us that the detention of the petitioners was illegal and consequently the petitioners are entitled to be compensated and also urged before us to direct the Authorities to conduct an inquiry against the officer who was responsible for bringing the petitioners from Dhule to Kolhapur. The learned APP on the other hand, states that undisputedly because of the registration of an offence, the petitioners ought not to have been taken from Dhule to Kolhapur in such manner without being arrested and without being produced before a Magistrate. The learned APP however states that ultimately a dispute which was existing between the complainant and the petitioners came to be amicably settled and therefore, this slight irregularity in taking the petitioners from Dhule to Kolhapur would not be of any significance. Mr. Kocharekar, the learned counsel for respondent no. 5 also urged before us on similar lines as that of the learned APP. 5. Undisputedly, when the police party arrived from Kolhapur to Dhule, the Police party was not armed with any warrant of arrest. The Police party of Kolhapur took the petitioners in their 9 8.wp 690-10.doc custody and after intimating the local police station proceeded in a private vehicle to Kolhapur. The petitioners were brought in the police station and thereafter, according to the petitioners, they were coerced into effecting a settlement against their wish. The manner in which the petitioners were taken from Dhule to Kolhapur cannot be said to be in accordance with law. It is stated before us that the petitioners were taken to Dhule for the purpose of interrogation. We fail to understand as to what was the interrogation which was to be done and particularly, the interrogation without arresting the petitioners. The offence had already been registered and the police party was sent especially from Kolhapur for bringing the petitioners to Kolhapur from Dhule. In these circumstances, the petitioners ought to have been arrested and ought to have been produced before the Magistrate. Similarly, transit remand ought to have been obtained by the concerned police party from Kolhapur before proceeding from Dhule to Kolhapur. None of these things were done by the police party and therefore, according to us the very taking of the petitioners from Dhule to Kolhapur was an illegal act which was not sanctioned by any provisions of law. Curiously even after the petitioners were brought to Kolhapur they were not formally arrested and were produced before the Magistrate. This Court while issuing Rule had directed the director of prosecution to conduct an inquiry. The director of prosecution has recorded 10 8.wp 690-10.doc his statement and copies of the statements are placed on record. Perusal of the statements of the witnesses examined by the director of the prosecution clearly reveals that the so called settlement of dispute between the complainant and the petitioners was done in the police station. The petitioners have averred and placed on record that a message had been sent on mobile to its representatives at Dhule for obtaining a draft. Certain memorandum of understanding / agreement also appears to have been scribed and executed but undoubtedly in the police station. Merely because the police ultimately brought about a settlement can not be used as a shield for shielding the illegal acts of the police of Kolhapur police station particularly when the evidence on record clearly indicates that the so called settlement was arrived at in the police station. The documents produced by the petitioners on record clearly indicate the existence of dispute between the complainant and the petitioners on account of refund of the amount which the petitioners were willing to settle. It is unbelievable that the petitioners would willingly settle the dispute having been brought to the police station in such manner. It is therefore clear that the police party was dispatched to Dhule and the petitioners were brought to Kolhapur at the behest of respondent no. 2 who was the Police Inspector in charge of the Police Station. Obviously, respondent nos. 4 and 5 have a very major role to play in so called settlement which was brought 11 8.wp 690-10.doc about. It is obvious that respondent no. 2 had acted upon at the behest of respondent nos. 4 and 5. The entire conduct of respondent no. 2 is most reprehensible and against all principles of law relating to the safeguard of the accused. It is obvious to us that the petitioners had coerced to arrive at the settlement and the averments in the petition supported by the statements of the witnesses including those of the husband of the complainant, which was recorded by the director of prosecution, clearly indicates about coercion or torture which was exerted on the petitioners for settling the dispute. In our opinion, therefore, this would be a fit case where compensation needs to be awarded to the petitioners for their illegal detention and also necessary direction needs to be issued for holding a departmental enquiry against respondent no. 2. Unfortunately, the members of the police party though they were named in the statements recorded by the director of prosecution, have not been joined as the respondents to the petition. In their absence, therefore, we refrain from making any observations against them touching the merits of the matter. 6. We therefore allow this petition and direct respondent no.1 to pay an amount of Rs. 25,000/- to the petitioners as compensation for their illegal detention which respondent no. 1 may recover from respondent no. 2. The other respondents are 12 8.wp 690-10.doc directed to hold a departmental enquiry against respondent no. 2 and other police officers, if in preliminary enquiry they are found to be guilty. 7. Rule is therefore made absolute on the above terms with no order as to costs. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 13 8.wp 690-10.doc 14