CRIMINAL WRIT No.243 OF 2009 In the matter of an application under Article 226 and 227 of the constitution of India. RAGHUNANDAN PRASAD, S/O PRAYAG MAHTO, R/O VILLAGE+P.O.-DHAWAL BIGHA, P.S.-HULASGANJ, DISTRICT-GAYA. …………………PETITIONER. Versus 1. STATE OF BIHAR. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE SUPERINTENDENT OF POLICE, JEHANABAD, BIHAR, PATNA. 4. THE OFFICER-INCHARGE, POLICE STATION- HULASGANJ, JEHANABAD, BIAHR. …………………RESPONDENTS. ----------- For the Petitoiner :Mr.Pranav Kumar, Adv. and Mr.Praveen Kumar,Adv. For the State :Dr.Md.Raisul Haque, GP-V and Mr. Rakesh Kumar,Adv. P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. Detention of the petitioner from 29.12.2008 to 5.1.2009 in connection with Gaya Kotwali P.S. Case No.24 of 1994 due to mistaken identity has given rise to this writ application by him for direction to the respondents to pay compensation. Petitioner is a Military Personnel. During the relevant period, he was on leave in his village. As per his case, all of a sudden, he was taken into custody by Officer In-charge of Hulasganj P.S. on 27.12.2008, in purported execution of a non-bailable warrant of arrest in connection with Gaya Kotwali P.S. Case No. 24 of 1994 corresponding to Sessions Trial No.208 of 2005. He was taken to the police station and kept in police custody till he was produced before the F.T.C.-IV, Gaya on 02.01.2009 when he was remanded to the judicial custody. Bail 2 application was filed on his behalf on 03.01.2009 which was taken up on 05.01.2009. The court found that the petitioner was apprehended on account of mistaken identity and, therefore, allowed his bail application and directed him to be released forthwith. The contention of learned counsel for the petitioner is that he was not an accused in the case at any point of time. The accused in the case was ‘Raghuvendra Prasad Singh’, son of Rawat Singh of the same village. Petitioner was ‘Raghunandan Prasad Singh’, son of Prayag Mahto. It is contended that the said accused ‘Raghuvendra Prasad Singh’ died and information with regard to his death had been furnished to the trial court and the trial court had directed a verification to be made in the matter. It is contended that throughout the investigation the name of the accused was rightly mentioned in the case dairy as ‘Raghuvendra Prasad Singh.’ However, in the charge-sheet by mistake the I.O. mentioned the name of the accused as ‘Raghunandan Prasad Singh.’ This mistake led to mention of the name of the accused in subsequent proceedings as ‘Raghunandan Prasad Singh’ and warrant of arrest was issued with that name of the accused. Hence, it was contended that due to the mistake of the respondents the petitioner was taken into custody and was kept in illegal custody of the police from 29.12.2008 to 01.01.2009 and illegal judicial custody from 02.01.2009 to 05.01.2009. 3 Therefore, he is entitled for compensation. Counter affidavit has been filed in the case. In the counter affidavit, it is stated that in the charge-sheet of Gaya Kotwali P.S. Case No. 24 of 1994 name of one of the accused was mentioned as ‘Raghunandan Prasad Singh, son of Rewati Singh @ Prayag Mahto.’ Since the accused had not appeared in the court on subsequent dates after he was released on bail on the orders of this Court, permanent warrant was issued by the trial court in the name of ‘Raghunandan Prasad Singh.’ In execution of warrant of arrest police went to the village and, on due identification by the villagers, as well as Dafadar and Chowkidar, petitioner was arrested. On 29.12.2008, the identification of the petitioner was again verified and thereafter he was sent to Gaya court for production. However, the court was closed. Therefore, he was brought back to the police station. He was again sent to court, but due to court’s closure he was again brought back on 31.12.2008. Finally, when the court opened on 2.1.2009, petitioner was produced in court and was remanded to judicial custody. The bail application of the petitioner, which was filed the next day, was taken up on 5.1.2009 and, being satisfied with the mistake in identity, petitioner was directed by the court to be released at once. Thus, the respondents, through the counter affidavit, have tried to show that, on account of 4 mistake in identity and mistake in mentioning the name in the charge-sheet, petitioner was arrested and remained in custody till 5.1.2009 and on the orders of the court he was released immediately. It is contended that at no point of time petitioner pointed out to the police authorities that he had been arrested due to mistaken identity and he was not an accused in the case at all. It is submitted on behalf of the respondents that it was only in the bail petition filed by the petitioner on 3.1.2009 this fact was asserted for the first time. The court examined the facts and being satisfied directed for his release at once. Learned counsel for the petitioner, in support of his case, has relied upon the case of Bhim Singh Vs. State of J&K (AIR 1986 SC 494). The facts of this case show that the petitioner before the Apex Court was a member of the Legislative Assembly of the State of Jammu & Kashmir. He was on way purportedly to attend the session of the Legislature in the wee hours. En route he was arrested. Immediately, a writ petition was filed on behalf of his wife in the High Court for his release impleading the top functionaries of the State as party respondents. While the case was pending, the petitioner was released on bail. On release he filed supplementary affidavit in the case, in which, he asserted that for four days he was kept in police lock-up without his production before the court. 5 Further facts brought on record show that the day he was taken into custody, an FIR was instituted against the petitioner, and immediately after the institution of the case police had proceeded to arrest him. He was taken into custody, kept in police lock-up for four days, and then only produced before the court for the first time. In the circumstances, the Apex Court held that the constitutional rights of the writ petitioner were violated with impunity and a compensation of Rs.50,000/- was awarded to be paid to the petitioner by the State Government. It is clear that in this case, the institution of the case, his arrest and keeping him in police lock up was all a well thought of plan of the concerned authorities of State with malafide intentions. Learned counsel for the petitioner next relied on the case of Smt.Nilabati Behera Vs. State of Orissa (AIR 1993 SC 1960). This case was of custodial death. On facts the court found that the deceased had been taken into custody and was assaulted and tortured as a result of which he sustained multiple injuries and died. Thereafter, the body of the deceased was thrown on the railway track by the police. The evidence and reports collected in the case irresistibly led to the conclusion that the deceased had died while in custody of the police and on account of injury inflicted on him at the hands of the police. Reliance was next placed by learned counsel 6 for the petitioner on a judgment of this Court in the case of Mahesh Ram Vs. State of Bihar (2007(4) PLJR 250). In this case, on alleged recovery and identification of a dead body of a girl and alleged confession, the accused persons were taken into custody and were charge-sheeted, even after the accused kept on insisting that the girl in question was alive and was staying with her husband, with whom she had married, at a different place. After months, finally, enquiry was made and girl with her husband was recovered alive and produced in Court. The allegations against the accused persons were found false and thereafter they were released. This Court noticed as to how the police in the zeal to establish a case managed identification and confession and harassed the alleged accused persons resulting into their confinement in jail for months, for no fault of theirs. The three cases relied upon by learned counsel for the petitioner were decided on their own facts. In the Bhim Singh case (supra) the malicious intention of the police was writ large in their actions of arrest of the petitioner and keeping him in police custody for days together in a pre-planned manner. In the Nilabati Behera case (supra) the alleged torture and assault by police resulting into death of the deceased in the police custody was established. In Mahesh Ram case (supra) the malafide action of the police in creating evidence by 7 recording to false identification and confession in the process of investigation, resulting into detention of the alleged accused for months together was established. All the three cases show that the police officials had the knowledge of the act they were committing, resulting into the deprivation of right to life and liberty of the persons concerned in illegal manner and against the law. However, in the present case, it is an admitted position that by mistake the name of the accused of the case in the charge-sheet was mentioned by the I.O. as ‘Raghunandan Prasad Singh’ instead of ‘Raghuvendra Prasad Singh’. This slip of pen by the I.O. has been accepted by the petitioner in his pleading made in paragraph 7 of the writ application which reads as follows:- That, due to slip of pen by the I.O. concerned the name of Raghuvendra Prasad Singh, Son of Rawat Singh, Village-Dawal Bigha, P.S.-Hulasganj, District-Jehanabad was written in chargesheet as Raghunandan Prasad Singh, Son of Rawat Singh where as in the entire case diary including concluding part of case diary name of accused was written as Raghuvendra Prasad Singh, Son of Rawat Singh with above mentioned address. Apparently, this led to mistake in the identity of the accused in subsequent proceedings and led to issue of permanent warrant of arrest by the Court in that name. The three days delay in production of the petitioner before the Court has been explained in the counter affidavit. It has been stated on oath that the petitioner was sent in Court 8 for production repeatedly on subsequent dates, but the Court was closed. The day the Court opened, i.e. 2.1.2009, he was produced before the Court concerned and was remanded to judicial custody. The order dated 2.1.2009, a copy whereof is annexed by the petitioner as Annexure-2, shows that the petitioner did not make any complaint before the Court in respect of his arrest or custody. Obviously, he did not point out to the Court on that very day that he had become a victim of mistaken identity. Admittedly, the bail application was filed on behalf of the petitioner the next day which was taken up on 5.1.2009 and when the mistake in identity was pointed out, he was directed to be released at once. This shows that at no point of time the police was in know of the fact that they were arresting or keeping in custody and producing before the Court a wrong person. This is also clear that this mistake occurred due to slip of pen by the I.O. at the time of submission of charge-sheet, obviously due to similarity in names, which is admitted by the petitioner also. This is also established that as soon as this fact was brought to the notice of the Court he was released forthwith. It is clear that the petitioner has not been able to establish that he was kept in illegal custody on account of any malicious or malafide act of the respondents. At best the case was a case of mistaken identity due to bona fide mistake of the I.O. while submitting the charge-sheet in 1994 itself. Very 9 recently, the Apex Court came across a case of detention of a person with huge cash for 15 long hours by the Income Tax authorities at the Airport of Chennai for no fault of his. By judgment passed in Rajendran Chingaravelu Vs. R.K.Mishra (2010 (1) SCC 457) the Apex Court denied the claim for compensation to the petitioner finding that bona fide actions of officers in discharging of official duties do not furnish cause of action for claiming compensation. This Court finds the present case covered by the said observations of the Apex Court. The writ application is dismissed. Patna High Court The 28thSeptember, 2010 N.A.F.R/Arvind ( J. N. Singh, J.)