Compensation of Rs. 50,000 granted for illegal detention of the Petitioners: Bombay High Court

 on 10 12 2020 on 06 01 1Criminal Writ Petition 5713.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 574 OF 20131.Arun S o Narayan Tagad Age 33 years Occu: Agril R o: Kumshi Tq. & Dist. Beed.2.Shailendra s o Pralhad Tagad Age 34 years Occu: Service R o: As above.... PETITIONERSV E R S U S1.The State of Maharashtra Through Secretary Home Department Mantralaya Mumbai 32.2.The Superintendent of Police Beed Dist. Beed.3.The Collector Collector Office Beed.4.Gramin Police Station Beed Tq. and Dist. Beed.5.The Tahsildar Tahsil Office Beed.... RESPONDENTS…Mr. N. R. Thorat Advocate for Petitioners.Mr. S. J. Salgare APP for Respondents.…CORAM :T. V. NALAWADE &M. G. SEWLIKAR JJ.DATE :01st December 2020. on 10 12 2020 on 06 01 2Criminal Writ Petition 5713.odtJUDGMENT: .Rule. Rule made returnable forthwith. By consent heardboth the sides for final disposal. 2The petition is filed for giving direction to Respondents topay compensation of Rs.5 00 000 to each of Petitioners on theground that the Petitioners were illegally arrested and detained incustody at the instance of police. 3The submissions made and record show that on 28thJanuary 2013 FIR was given to Beed Rural Police Station againstthe Petitioners by one lady and the crime for the offences punishableunder Sections 323 324 504 and 506 read with 34 of the IndianPenal Code was registered. On 30th January 2013 both thePetitioners were arrested by police of Rural Police Station Beed andthe Petitioners were produced before the Judicial Magistrate FirstClass Beed on the same day. The Judicial Magistrate First Classgranted bail to both the Petitioners and they were released when theyfurnished personal bond and surety bond. It is the contention ofPetitioners that when they came out of the campus of Court samepolice arrested them immediately and they were taken before the on 10 12 2020 on 06 01 3Criminal Writ Petition 5713.odtExecutive Magistrate Beed. 4On 30th January 2013 both the Petitioners were producedbefore the Executive Magistrate Beed and the Executive Magistratemade order against the Petitioners and directed them to give interimbond with two solvent sureties of Rs.25 000 each. On 30th January 2013 the Petitioners moved an application before the ExecutiveMagistrate and requested the Magistrate to permit them to give cashsecurity in place of surety bond and they submitted that they hadapplied for getting solvency certificate but such certificate generally isnot issued immediately. The Executive Magistrate did not allow thisapplication and adjourned the matter to next date. 5It is the contention of Petitioners that there weremalafides in the action taken by police and the Executive Magistratehad also did not pass necessary orders and due to that they wereillegally detained in jail from 30th January 2013 for about six days. Itis the contention of Petitioners that they are not habitual offenders. Itis their contention that Petitioner No.2 was surveying in the military atthe relevant time and Petitioner No.1 was a respected person andresident of same locality and so detention was not necessarily in thechapter case. It is contended that he arrest and detention were illegal on 10 12 2020 on 06 01 4Criminal Writ Petition 5713.odtand there is violation of the fundamental rights of the Petitioners. Thefollowing specific relies are claimed in the present matter:“B)It may kindly be hold and declared that the policehave no power or authority to arrest the petitionersU sec. 107 of Cr.P.C. after getting bail.C)It may kindly be declared and hold that order dated30.1.2013 passed by Executive Magistrate is illegaland violates the fundamental rights of thepetitioners.D)It may kindly be declared and hold that therespondent No.4 illegally detained the petitioners.E)It may kindly be declared and hold that therespondents violated the fundamental rights of thepetitioners therefore the petitioners are entitled toget compensation from the state.F)It may kindly be declared and hold that therespondents no. 4 and 5 violates the fundamentalrights of the petitioners therefore state is liable topay compensation.G)It may kindly be declared and hold that Petitionersare entitled compensation of Rs.5 00 000 eachfrom the state.” on 10 12 2020 on 06 01 5Criminal Writ Petition 5713.odt6The submissions made and copy of FIR dated 28thJanuary 2013 show that incident had allegedly taken place on 22ndJanuary 2013 at about 08:30 pm. A lady aged about 35 years hadgiven FIR against the present two Petitioners and one MahendraTagad who is a brother of Petitioner No.2. She had made allegationsthat these three accused had picked up quarrel with her family on theground that her family had not allowed them to use the bullocks andbullock cart for fetching water. The lady had alleged that duringquarrel Petitioner Shailendra and other Accused Mahendra hadassaulted her with fist blows and kick blows and Petitioner No.1 Arunhad assaulted her with stick. It is her contention in the FIR that shesustained bleeding injury in the incident and she was somehow savedby her family members and neighbours. It is her contention that herhusband was not at home at the relevant time. The contents of FIRshow that both the Petitioners were known to her as they hail from hervillage. 7The contents of FIR and the submissions made in thepresent proceeding do not show that there was previous enmity of thePetitioners with the informant. The FIR was also not givenimmediately. From the contents of FIR and the circumstances it isnot possible to infer that even family of the informant had a feeling on 10 12 2020 on 06 01 6Criminal Writ Petition 5713.odtthat there was possibility of commission of similar offence by thePetitioners and other accused. The crime was registered for theoffences punishable under Sections 324 323 504 506 read with 34of the Indian Penal Code and this crime is bailable. It is not disputedthat the Petitioners were arrested on 30th January 2013 and on thesame day Judicial Magistrate First Class released them on bail. 8In the reply filed by Respondent police head constable who was investigating the aforesaid crime it is contended that theDeputy Superintendent of Police Beed Division had directed thispolice station to take preventive measures against the Petitioners. Itis contended that the direction was given on wireless. Photocopy ofwireless message is also produced. It is the contention of police headconstable Bansi Jaibhaye that when the Petitioners were released onbail by Judicial Magistrate First Class he asked the Petitioners toappear before the Executive Magistrate on the same day and he didnot arrest them. It is contended that on that day report was submittedto Executive Magistrate and the Executive Magistrate directed thePetitioners to give bond of Rs.25 000 with two solvent sureties. It iscontended that as the Petitioners failed to comply this order thematter was adjourned to 5th February 2013 by the ExecutiveMagistrate. on 10 12 2020 on 06 01 7Criminal Writ Petition 5713.odt9The aforesaid circumstances show that even whenbailable offence was registered both the Petitioners were arrestedand they were produced before the Magistrate when they could havebeen released on bail in the police station. The message given by theSub Divisional Police Officer shows that he had directed to takepreventive measure and due to that the police head constable gavereport to Executive Magistrate and it can be said that the report wasgiven after release of Petitioners on bail by the Judicial MagistrateFirst Class. The submissions made and the record show that thepolice station requested the Executive Magistrate to start chapterproceeding under Section 107 of the Code of Criminal Procedure andobtain interim bond from them under Section 116(3) of the Code ofCriminal Procedure. 10On the report given by the police for starting chapterproceeding the Executive Magistrate made order of following naturein Marathi:“The opponents were produced by police headconstable Jaibhaye. The opponents were directedto give personal bond and bond of two sureties ofRs.25 000 by each of them. If the opponents failto furnish bond they are to be taken to jail and they on 10 12 2020 on 06 01 8Criminal Writ Petition 5713.odtare to be kept in jail till next date. The next date isfixed as 5th February 2013.”11There is a copy of application which was given byPetitioners on 30th January 2013 and it can be said that thisapplication was moved after passing of aforesaid order by ExecutiveMagistrate. This application shows that the Petitioners offered to givecash security of aforesaid amount and it was also submitted that twosureties like Umakant Tagad resident of Kumshi District Beed andHarishchandra Raosaheb Nikam were present to execute the bond assurety. It was also written in the application that for getting solvencycertificate in respect of these sureties applications were alreadymoved but it may take some time. On this application the ExecutiveMagistrate made order that the amount was to be accepted on 1stFebruary 2013. There is a copy of another application given for thePetitioners by their Advocate and it is dated 31st January 2013. Thisapplication shows that it was again requested to Executive Magistrateto give time for getting solvency certificate and atleast 2 3 days timewas required for that. On this application the Executive Magistratemade order which is as follows:“Time granted. Release on today.” on 10 12 2020 on 06 01 9Criminal Writ Petition 5713.odtHowever it is the contention of the Petitioners that they weredetained in custody for about six days i.e. till 5th February 2013. 12As the Petitioners have contended that both the arrestand the detention was illegal this Court is discussing the provisions ofthe Criminal Procedure Code. It is already observed that the offencefor which crime was registered is bailable and so they could havebeen released on bail in the police station itself. The provision ofSection 107 of the Code of Criminal Procedure falls in Chapter VIII.The purpose of Chapter VIII is given in the heading of the Chapterand it shows that the provisions are made for security for keeping thepeace and for good behaviuor. The scheme of this Chapter showsthat in different circumstances chapter cases can be started underdifferent sections like Section 107 to 110. The power given underSection 106 of the Code of Criminal Procedure is of different natureand that need not be discussed in the present matter. In the presentmatter there was a proposal to start chapter proceeding underSection 107 of the Code of Criminal Procedure and so this provisionneeds to be considered. The provision runs as under:“107.Security for keeping the peace in othercases.When an Executive Magistrate receivesinformation that any person is likely to commit a on 10 12 2020 on 06 01 10Criminal Writ Petition 5713.odtbreach of the peace or disturb the public tranquillityor to do any wrongful act that may probablyoccasion a breach of the peace or disturb thepublic tranquillity and is of opinion that there issufficient ground for proceeding he may in themanner hereinafter provided require such personto show cause why he should not be ordered toexecute a bond with or without sureties for keepingthe peace for such period not exceeding one year as the Magistrate thinks fit.”13The provision of Section 107(1) of the Code of CriminalProcedure shows that there are conditions for starting the proceedingunder this section and the conditions are as under:(i)That there was information against the opponent thathe was likely to commit breach of peace or he waslikely to disturb the public tranquillity or the opponentwas likely to do any wrongful act which may occasionbreach of peace or disturbance of public tranquillityof the Code of Criminal Procedure of aforesaid nature.The record produced and the reply of the police head constable doesnot show that before passing such order any order of show cause asrequired under Section 111 of the Code of Criminal Procedure wasmade. Section 111 of the Code of Criminal Procedure runs as under: on 10 12 2020 on 06 01 12Criminal Writ Petition 5713.odt“111. Order to be made. When a Magistrate actingunder section 107 section 108 section 109 orsection 110 deems it necessary to require anyperson to show cause under such section he shallmake an order in writing setting forth thesubstance of the information received the amountof the bond to be executed the term for which it isto be in force and the number character and classof suretiesrequired.”15It is contended by the police head constable in the replythat he had only directed the Petitioners to appear before theExecutive Magistrate when they were released on bail by the JudicialMagistrate First Class. This contention appears to be incorrect andfalse. The aforesaid order of interim bond made by ExecutiveMagistrate shows that the Petitioners were brought before theExecutive Magistrate by police head constable Jaibhaye. Thiscircumstance supports the contention of the Petitioners thatimmediately after their release on bail by the Judicial Magistrate FirstClass they were taken in custody by police and they were producedbefore the Executive Magistrate. Though there is such clearprobability there is no record to show their formal arrest under anyprovision of law after they were released by the Judicial MagistrateFirst Class in aforesaid crime. on 10 12 2020 on 06 01 13Criminal Writ Petition 5713.odt16Even if the contention of police head constable Jaibhayeis accepted as it is that he had directed the Petitioners to appearbefore the Executive Magistrate he could not have done it in view ofthe provisions of Chapter VIII. Only after passing of some order underSection 107 read with Section 111 of the Code of Criminal Procedure the opponents can be directed to appear before the ExecutiveMagistrate if they are not arrested under any provision of law. 17The provision of Section 113 of the Code of CriminalProcedure shows that the Executive Magistrate can issue summonsor warrant for appearance of opponents to answer the show causenotice which is required to be issued under Section 111 of the Codeof Criminal Procedure. The provision of Section 113 of the Code ofCriminal Procedure needs to be read with the provision of Section 116of the Code of Criminal Procedure. Relevant portion of Section 116 ofthe Code of Criminal Procedure is as under:“116.Inquiry as to truth of information.Whenan order under section 111 has been read orexplained under section 112 to a person present inCourt or when any person appears or is broughtbefore a Magistrate in compliance with or inexecution of a summons or warrant issued under on 10 12 2020 on 06 01 14Criminal Writ Petition 5713.odtsection 113 the Magistrate shall proceed to inquireinto the truth of the information upon which actionhas been taken and to take such further evidenceas may appear necessary.(2)…(3)After the commencement and beforethe completion of the inquiry under sub sectionthe Magistrate if he considers that immediatemeasures are necessary for the prevention of abreach of the peace or disturbance of the publictranquillity or the commission of any offence or forthe public safety may for reasons to be recordedin writing direct the person in respect of whom theorder under section 111 has been made to executea bond with or without sureties for keeping thepeace or maintaining good behaviour until theconclusion of the inquiry and may detain him incustody until such bond is executed or in default ofexecution until the inquiry is concluded:Provided thatno person against whom proceedings arenot being taken under section 108 section 109 orsection 110 shall be directed to execute a bond formaintaining good behaviourthe conditions of such bond whether asto the amount thereof or as to the provision ofsureties or the number thereof or the pecuniaryextent of their liability shall not be more onerousthan those specified in the order under section111.” on 10 12 2020 on 06 01 15Criminal Writ Petition 5713.odt18The provision of Section 113 and relevant portion ofprovision of Section 116 of the Code of Criminal Procedure quotedabove shows that when chapter proceeding is started under Section107 of the Code of Criminal Procedure the Executive Magistrate isnot expected to issue warrant. He can issue only summons or noticeand send show cause notice under Section 111 of the Code ofCriminal Procedure to opponents. The grounds given in Section 107of the Code of Criminal Procedure are not that serious and they donot show that there is urgency and they need to be arrested first.Ordinarily for proposing chapter case under Section 108 109 and 110of the Code of Criminal Procedure police use provision of Section151 of the Code of Criminal Procedure and they make arrest and thenthey produce the accused alongwith proposal of chapter case beforethe Executive Magistrate. The provision of Section 151 of the Code ofCriminal Procedure enables police to arrest the opponent as thepolice form opinion that there is a possibility of commission ofcognizable offence by the opponent. There is no such possibilitywhen chapter case is to be started under Section 107 of the Code ofCriminal Procedure. Thus arrest before issuing show cause noticeunder Section 111 of the Code of Criminal Procedure when chapter on 10 12 2020 on 06 01 16Criminal Writ Petition 5713.odtproceeding is to be filed under Section 107 of the Code of CriminalProcedure is not permissible and it is illegal. Similarly in view of theprovision of Section 116(3) of the Code of Criminal Procedure interimbond cannot be obtained from the opponent when chapter proceedingis started against him under Section 107 of the Code of CriminalProcedure. 19The aforesaid discussion shows that the order ofExecutive Magistrate asking the present Petitioners to execute interimbond of aforesaid nature is illegal. The bond was involving onerouscondition two sureties having solvency certificate of Rs.25 000 eachfor each opponent. These circumstances show that there weremalafides and intention of the police was to see that the Petitionersare arrested and they are kept behind bars for few days. The recordand circumstances show that the Executive Magistrate acted as persuch desire of police and he did not apply his mind. The ExecutiveMagistrate ought to have gone through the aforesaid provisions whichshow that he had no such jurisdiction.20In Criminal Writ Petition No.9519 decidedat this Bench on 5th November 2019 this Court has considered the on 10 12 2020 on 06 01 17Criminal Writ Petition 5713.odtlaw developed on illegal arrest and illegal detention. This Court haslaid down on the basis of observations made by the Apex Court thatin such cases the victim is entitled to get compensation. Theobservations are at para 13 and they are as under:“13)In the landmark case of D.K. Basu Vs. Stateof W.B. reported as AIR 1997 SC 610 theSupreme Court has laid down the law in respect ofthe illegal detention and reliefs which can begranted in such cases. In other case of Smt.Nilabati Behera alias Lalita Behera Vs. State ofOrissa and others reported as AIR 1993 SC 1960 the Apex Court has laid down that such actions ofpolice are in blatant violation of human rights. TheApex Court has referred the provisions ofInternational Covenant on Civil and Political Rights 1966 to which India is a party. The Apex Court haslaid down that Articles 21 and 226 of Constitution ofIndia make it not only possible but necessary forthe Court to grant compensation in such cases.Even mistake cannot be excused in such cases.This Court is not expected to decided as to whetherthere was the malice. So this Court holds thatcompensation needs to be given to the petitioners.”21Similar observations are there in Criminal Writ PetitionNo.11018 at paras 9 and 10 and they are as under: on 10 12 2020 on 06 01 18Criminal Writ Petition 5713.odt“9)Learned counsel for the petitioner placedreliance on the observations made by the ApexCourt in following three cases.(1) Rudul Sah v. State of Bihar(2) Arvinder Singh Bagga v. State of U.P.[AIR 1995 SC 117] andS.Nambi Narayanan v. Siby Mathews[2018 AIR SC 5112].10)In all the three cases the Apex Court hadconsidered the provision of Article 21 of theConstitution of India and had held that in suchcases person who is illegally detained is entitled toget compensation from the State. In the casereported as Ram Dass Ram v. State of Bihar the Supreme Court held that suchdetention would be unjustified. It can be said thatthe authority ought to have acted confidently andthere was nothing in the operative order whichcould have confused the authority. In such casesthe State needs to be made to pay compensationfirst and then the State can be allowed to recoverthe amount from the officer who has committederror or who was found negligent in taking urgentsteps for release of the prisoner.”22In the present matter only because there is a copy oforder dated 31st January 2013 showing that on that day Executive on 10 12 2020 on 06 01 19Criminal Writ Petition 5713.odtMagistrate had given direction to release the opponents and time wasgive to them as prayed this Court holds that the compensation cannotbe on higher side. There is a clear possibility that to the ExecutiveMagistrate there was no proper training. The powers available whichare in Chapter VIII of the Code of Criminal Procedure are investedeither in police officer of higher rank or some revenue officer and asthey have no training when superior police officer issue someinstructions like done in the present matter and orders of the aforesaidnature are passed. In any case it needs to be made known toExecutive Magistrate that he has passed illegal order and he had nojurisdiction to pass such order. Only because he was expected todischarge the duty given under Chapter VIII of the Code of CriminalProcedure he may not be directed to pay compensation. However the State needs to obtain the explanation and fix some kind ofresponsibility in such cases. It is serious mistake committed by theExecutive Magistrate. In the result the following order is passed:O R D E RI.The petition is allowed. II.The Respondents shall pay Rs.50 000 to each Petitioner ascompensation for illegal detention. on 10 12 2020 on 06 01 20Criminal Writ Petition 5713.odtIII.Initially the State Government has to pay thisamount and it is to be done within 45 days fromtoday failing to which the amount will carry interestat the rate of 8% per annum. IV.It is open to the State to fasten responsibility onconcerned police officer and the then ExecutiveMagistrate and recover amount. V.Rule is made absolute in those terms. ndm 

Summary: A compensation for Rs 50,000 each was granted to the two petitioners that were illegally detained in the jail. The two Petitioners are ex-military persons and were illegally detained by the Police authorities and the executive magistrate for six days. The Bombay High Court presided over by J. T.V. Nalawade &amp; J. M.G. Sewlikar laid this ratio in the case of Arun Tagad &amp; Anr. Vs. State of Maharashtra &amp; Ors., [Criminal Writ Petition No. 574 of 2013].  In January 2013 35-year-old women, had lodged an FIR against the Petitioners that during a quarrel they had assaulted her. The reason for the quarrel was because her family did not allow them to use bullocks and carts for fetching water. The Petitioners were later arrested on the basis of the relevant section of the India Penal Code i.e. Section 323, 324, 504 &amp; 506 of the Code. However, they were released on furnishing a personal bond and surety. Later, as per the report they were arrested again outside the court campus by the same police and were taken before the Executive Magistrate. The Executive Magistrate ordered them to furnish interim bond with two sureties of Rs. 25,000 each. The Petitioners pleaded to accept cash security instead of surety bond as it would take some time. The Executive Magistrate rejected their plea and only after 6 days they could get bail. The Petitioner submitted that the acts of the Police authority and Executive Magistrate are mala-fide and the arrest was illegal which also violated their fundamental rights under the Constitution. The Respondent submitted that the acts were taken as a preventive measure against the Petitioners. The Division bench of the Bombay High Court was of the opinion that, “The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs.25,000 each for each opponent. These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction.”