( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2545 OF 2008 WRIT PETITION NO.2545 OF 2008 WRIT PETITION NO.2545 OF 2008 Brig (Retd) Asil Singh, Advocate .. Petitioner V/s The State of Maharashtra & Ors. .. Respondents Petitioner present in person. Mr.A.S.Gadkari, APP for State. CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. R.G.KETKAR, JJ. R.G.KETKAR, JJ. DATE : 22ND APRIL, 2009. DATE : 22ND APRIL, 2009. DATE : 22ND APRIL, 2009. JUDGMENT: JUDGMENT: JUDGMENT: (Per (Per (Per R.G.Ketkar J.) R.G.Ketkar J.) R.G.Ketkar J.) 1. Heard parties. Rule. By consent of the parties, rule is made returnable forthwith. 2. By this petition, the petitioner prays for direction to the Commissioner of Police Pune for taking appropriate departmental action against the police officers liable for illegal arrest and imprisonment of the petitioner, and also a direction to the State Government to pay a compensation of Rs.2 lakhs to the petitioner as a solatium for his illegal arrest and confinement by the police in the lock up from 7.30 p.m. on April 27, 2008 to 3 p.m. on April 28, 2008. 3. In the petition the petitioner has set out in detail about the illegal construction carried out by two flat owners (Duggal & Patel families) residing on the ground floor in the common side margins of their residential ( 2 ) buildings. The petitioner alongwith his wife instituted Regular Civil Suit No.1851 of 2004 before the 4th Joint Civil Judge, Sr.Division, Pune, interalia for a declaration that the open space around the building viz. Alisha Apartment located at plot No.15, Survey No.53 of village Kondhwa, Taluka Haveli, District Pune is the common space and the owners of the flat on the ground floor cannot restrict the entry to the other flat owners of the upper floors in the said common area. Pending the suit, the plaintiffs therein took out an application for interim relief (exhibit 5) under Order XXXIX Rule 1 of the Code of Civil Procedure 1908. The application was dismissed by the trial Court on March 17, 2006. Against this decision, the original plaintiffs preferred Mis.Civil Appeal No.119 of 2006 which was partly allowed by the learned District Judge, Pune on April 23, 2007. Writ Petition No.5199/2007 and Writ Petition No.8646/2007 were filed in this Court against the order of the learned District Judge. Petitions were disposed of on April 4, 2008 and this Court confirmed substantially the order of the lower Appellate Court subject to certain modifications. 4. It is the case of the petitioner that on April 26, 2008 he went to common area to pick up his wedding ring which had inadvertently fallen there. He was physically obstructed by Ms.Krishna Duggal, abused and repeatedly bitten by her on his biceps. The petitioner reported ( 3 ) the said incident to Senior Inspector of Kondhwa Police Station orally. Ms.Krishna Duggal lodged a counter complaint with the police accusing the petitioner and his wife of abusing her, pulling her out of her flat and beating her with iron rod, danda and biting her with teeth. 5. The petitioner contends that he alongwith his wife went to Kondhwa Police Station on April 27, 2008 to file a written report of the incident at around 11.00 hours. They were detained at the police station till 8.00 p.m. and were told by the Police Inspector Shri.M.K.Thosar that they were under arrest. It is alleged that Inspector Thosar informed them that he had received instructions from D.C.P. Zone IV to arrest them and confine them in the lock up. Police Sub-Inspector Shri.R.S.Kshirsagar is the arresting oficer on record, to whom, neither the petitioner nor his wife had ever met. The petitioner was taken before the Judicial Magistrate First Class at Shivaji Nagar and was enlarged on bail. The petitioner has instituted the present petition contending that he was wrongfully imprisoned by the police at 7.30 p.m. on April 27, 2008 to 3 p.m. on April 28, 2008 6. Shri.M.K.Thosar, Police Inspector presently attached to Kondhwa Police Station, Pune has sworn an affidavit on February 25, 2009. In paragraph 4 thereof he has set ( 4 ) out that at about 1.00 p.m. on April 26, 2008 Ms.Krishna Duggal aged about 65 years came to the police station and informed that one Shri.Asil Singh, the petitioner herein had assaulted her with iron rod and also caught hold of her dress and dragged her out from residence. At that time wife of the petitioner also came there and both of them assaulted her and abused her in filthy language. She further stated that the petitioner and his wife assaulted her by fist and kick blows on her stomach and other parts of the body, and that the petitioner also bite her on her wrist and on the left forearm. 7. Ms.Krishna Duggal was sent to the Sassoon Hospital for medical treatment and after taking medical treatment she came back to the police station alongwith the injury certificate issued by the Sassoon General Hospital. After receipt of the medical certificate, Kondhwa Police Station registered FIR bearing No.66/2008 on April 26, 2008, and in the complaint lodged by Mrs.Duggal the offence u/s.452, 324, 323, 504, 506(II) read with Section 34 IPC came to be registered on April 26, 2008 against the petitioner and his wife Smt.Vikendri Ahlawat. It is further set out that Ms.Krishna Duggal had earlier lodged two complaints with the Wanori Police Station viz.CR No.151/2002 under Sections 325, 323, 447 and 504 IPC and CR No.50/2006 under Sections 324, 323, 504 IPC. ( 5 ) 8. It is further asserted that the petitioner came to the police station on April 27, 2008 for registering cross complaint against Ms.Krishna Duggal and her family members. The said complaint lodged by the petitioner came to be registered on April 27, 2008 as FIR 67/2008 under sections 341, 324, 323, 504, 427, 506(1) read with section 34 IPC. The petitioner was arrested at 7.30 p.m. on April 27, 2008 in connection with CR No.66 of 2008 and the said fact was intimated to his wife Smt.Vikendri Ahlawat who was present in the police station. The petitioner was taken for medical examination before the medical officer of Sassoon General Hospital, Pune and was thereafter produced at 2.00 p.m. on April 28, 2008 before the J.M.F.C.Lashkar Court, Pune who was pleased to enlarge the petitioner on bail. It is further stated in the affidavit that as the cognizable and non-bailable offence came to be disclosed at the instance of the complainant Ms.Krishna Duggal against the petitioner, he was arrested on April 27, 2008 at 7.30 p.m. and was produced at 2.00 p.m. before the J.M.F.C.Shivaji Nagar, Pune on April 28, 2008 and was enlarged on bail after the order was passed by the Court. It is asserted that the petitioner was never in illegal arrest and imprisonment and consequently he is not entitled to any relief. 9. We have heard the petitioner who appeared in person ( 6 ) at length. We have also gone through the notes of arguments tendered by the petitioner during the course of hearing. The petitioner relied upon the judgment of the Apex Court in the case of Joginder Kumar V/s State Joginder Kumar V/s State Joginder Kumar V/s State of U.P.- AIR 1994 Supreme Court 1349. of U.P.- AIR 1994 Supreme Court 1349. of U.P.- AIR 1994 Supreme Court 1349. The petitioner has also relied upon the Full Bench Judgment of Allahabad High Court in the case of Smt.Amarawati and Smt.Amarawati and Smt.Amarawati and Anr.V/s.State of U.P.- 2005 CRI.L.J.755 Anr.V/s.State of U.P.- 2005 CRI.L.J.755 Anr.V/s.State of U.P.- 2005 CRI.L.J.755, in support of his submission as to whether arrest of the accused is a must, if cognizable offence is disclosed in FIR and in particular paragraph 31 thereof, which reads as under:- "In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar’s case (1994 Cri.L.J.1981) and it is also in violation of Article 21 of the Constitution as well as section 157(1) Cr.P.C. which gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra). The view of Hon’ble Palok Basu, J. in this connection is hence clearly incorrect." 10. In the case of Joginder Kumar Joginder Kumar Joginder Kumar the petitioner who completed his LL.B. and enrolled himself as an Advocate was called for making enquiries in some case by Senior Superintendent of Police, Gaziabad. The petitioner in that case appeared personally alongwith his brothers Shri.Mangeram Cahudhary, Nareshsingh Yadav, Harinder Singh Tewatia, Amarsingh and others at about 10 o’clock ( 7 ) on January 7, 1994. The petitioner was kept in custody by the 4th respondent - Sr.Superintendent of Police, Gaziabad. On enquiries made by the brother of the petitioner, he was told that the petitioner will be set free in the evening after making some enquiries in connection with the case. On the same date, at about 12.55 p.m. brother of the petitioner sent telegram to the Chief Minister of U.P. apprehending his brother’s implication in some criminal case and further apprehending that the petitioner will be shot dead in the fake encounter. Whereabouts of the petitioner therein could not be located inspite of frequent enquiries. On the evening of January 7, 1994 it became clear that the petitioner was detained in illegal custody of 5th respondent S.H.O., P.S.Mussorie. On January 8, 1994 it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. The petitioner was not produced before the concerned Magistrate and instead the 5th respondent directed the relatives of the petitioner to approach the 4th respondent S.S.P. Gaziabad for release of the petitioner. On January 9, 1994 in the evening when the brother of the petitioner alongwith relatives went to P.S.Mussorie for enquiry it was found that the petitioner had been taken to some undisclosed destination. In this circumstances petition under Article 32 of the Constitution of India was instituted before the Apex Court. Thus the petitioner in that case ( 8 ) was detained in the police custody from January 7, 1994 for a period of 5 days without producing him before the concerned Magistrate. It is in this context the Apex Court directed the learned Digstict Judge Gaziabad to make a detailed enquiry and submit his report within four weeks from the date of receipt of the order. After considering various aspects, the Apex Court in paragraph Nos.24 and 25 made following pertinent and relevant observations:- 24. 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 henious offences, an arrest arrest must be avoided if a police officer issues notice to the person to attend the Station House and not to leave Station without permission would do." 25. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police - Richard Clayton and High Tomlinson: page 303). That Section provides:- "Where a person has been arrested and is being held in custody in a police station or other premiss, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there." . The Apex Court issued directions for effective ( 9 ) enforcement of fundamental rights under Article 21 and 22(1) of the Constitution of India. 11. In so far as judgment of the full Bench of Allahabad High Court in the case of Smt.Amrawati and Another (supra) the full Bench considered the provisions of Section 41 of the Code of Criminal Procedure, 1973 as also section 2(c) thereof, and in the light of the judgment of the Apex Court in Joginder Kumar (Supra), held that even if the cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must rather the police officer should be guided by the decision of the Apex Court in Joginder Kumar v/s.State of U.P. (supra) before deciding whether to make an arrest or not. 12. Coming to the present case, it is apparent that Ms.Krishna Duggal had earlier lodged two complaints with Wanori Police Station and also the present complaint is lodged on April 26, 2008 at 1.00 p.m. The present complaint disclosed cognizable and non bailable offence. The petitioner was arrested at 7.30 p.m. on April 27, 2008 and was produced before the J.M.F.C.Shivaji Nagar, Pune at 2.00 p.m. on April 28, 2008 and was enlarged on bail immediately. Petition proceeds on the premise that the said detention is illegal. 13. On the other hand it is the case of the respondents ( 10 ) that the petitioner was not arrested illegally. Since the complaints are lodged by the petitioner against the Duggal family who in turn have also lodged complaints against the petitioner, and since they are subjudice it is not possible for us to express any opinion on the contentions raised in the petition. Any observation made by us at this stage will make a fair trial of the pending complaints an impossibility. We however keep all contentions raised by the petitioner and all contentions of the respondents open. Those contentions can be raised during the trial of the pending complaints. 14. We specifically reserve the liberty to the petitioner to agitate the issue of his alleged illegal confinement before the learned Magistrate who shall consider that issue if raised in the light of the material that may be produced before him after hearing the parties before him. We make it clear that we have not touched the merits of the case of alleged illegal detention of the petitioner and the learned Magistrate will decide the case uninfluenced by the observations made by us in this order. 15. Petition stands disposed of in the aforesaid terms. Rule is discharged. ( 11 ) (SMT.RANJANA DESAI, J.) SMT.RANJANA DESAI, J.) SMT.RANJANA DESAI, J.) (R.G.KETKAR, J.) R.G.KETKAR, J.) R.G.KETKAR, J.)