Allowed

Ramdas Deoram Shinde v. Sagar Madhukar Gunjal and Ors.

Bombay HC10 Oct 2017WP/394/2006

Case brief

AI extract

What is this about?

Petitioner Police Inspector challenged the Maharashtra State Human Rights Commission's order awarding compensation and issuing warning for illegal handcuffing. Court held order barred under Section 36(2) of Protection of Human Rights Act as specific handcuffing allegations arose only in rejoinder after one-year limit.

What did the court decide?

Order of Maharashtra State Human Rights Commission set aside; Rule made absolute.

Ramdas Deoram Shinde Vs Sagar Madhukar… — Constitutional and Fundamental Rights | Bombay HC (2017)

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1 Cr WP 394 of 2006

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Criminal Writ Petition No.394 of 2006

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Ramdas Deoram Shinde, Age about 50 years, Occupation : Police Inspector R/o Kishor Aher House, Behind Shetki Sangh Petrol Pump, Ganesh Nagar, Sangamner, District Ahmednagar. .. Petitioner.

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Versus

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Sagar Madhukar Gunjal, Age about 45 years, Occupation : Advocate, R/o Shinde Mala, Savedi, Ahmednagar.

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Prashant Anil Mahajan, Age about 45 years, Occupation: Nil R/o "Shivani" Rasne Nagar, Savedi, Ahmednagar.

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1. State of Maharashtra Through Superintendent of Police, Ahmednagar. .. Respondents.

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Shri. Satyajeet Bora, Advocate, for petitioner.

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Shri. Abhaykumar D. Ostwal, Advocate, for respondent No.1.

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Shri. S.J. Salgare, Additional Public Prosecutor, for respondent No.3.

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Coram: T.V. NALAWADE & S.M. GAVHANE, JJ.

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2 Cr WP 394 of 2006

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Judgment reserved on : 27 September 2017 Judgment pronounced on : 10 October 2017.

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JUDGMENT: (Per T.V. Nalawade, J.)

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The petitioner has claimed following relief. Both the sides are heard.

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"(c) An appropriate writ, order or direction may kindly be issued under Art. 226 of the Constitution of India thereby quashing the order passed by the Maharashtra state Human Rights Commission Mumbai in Case No.18/03 dated 27-2-2006."

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The petitioner was working as Police Inspector in Ahmednagar District. There was complaint from Dr. Prakash and Dr. Sudha Kankariya to the District Superintendent of Police that respondent No.1 and 2 and two more persons were blackmailing them. Allegations were made that these persons had demanded ransom of Rs. one crore. It was informed that one Bapu Gund was working as Librarian in a college had died and the aforesaid four persons were saying that Bapu had committed suicide and he had left behind a suicide note involving these two doctors. These two doctors had

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3 Cr WP 394 of 2006

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connection with the administration of the said college. The aforesaid four persons were demanding ransom by saying that if the amount is not given they would publish the suicide note and due to that there will be prosecution of these two doctors for abatement of suicide.

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Respondent No.1 is an Advocate. One more Advocate and one handwriting expert Kulkarni were the three persons among the four persons. Respondent No.2 is an associate of the Advocate. They were named in the complaint. Crime at CR No.124/2002 came to be registered for offences punishable under sections 384, 385, 465, 469, 471, 120B of Indian Penal Code. There was allegation that one of the four accused had already extracted amount of Rs.82,000/- by giving aforesaid threats. As there was allegation that accused persons were trying to extract ransom amount action was taken.

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A trap was laid and present respondent Nos.1 and 2 were caught red handed in the trap when they were accepting the ransom money. During investigation so called suicide not came to be recovered from the

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4 Cr WP 394 of 2006

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respondents. It is the contention of the investigating agency, the petitioner that the respondent and other two accused had manufactured the suicide note and no such suicide note was left behind by the aforesaid Bapu Gund.

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Respondent Nos.1 and 2 were arrested on 13-62002 and they were produced before the Judaical Magistrate on 14-6-2002. Charge sheet is already filed against respondent Nos.1 and 2 and other two accused in the aforesaid crime for the offences mentioned above.

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Respondent Nos.1 and 2 filed complaint before Maharashtra State Human Rights Commission (for short "SHRC") on 16-12-2002 as they were arrested in the aforesaid crime. Complaint of the respondent Nos.1 and 2 was registered with SHRC on 21-12-2002 and notices were issued to the Superintendent of Police Ahmednagar and also to the present petitioner who was working as Police Inspector. They were asked to remain present before the SHRC on 30-4-2005. On that date the petitioner filed reply and produced relevant record. He denied the allegations made. He denied that there was violation of

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human rights. In the reply he gave explanation and reasons for handcuffing of respondent Nos.1 and 2. After inquiry, SHRC made following order against the present petitioner :

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"1. The Police Officer who is responsible for handcuffing the applicants should be warned to carefully observe the norms regarding handcuffing of a person in future.

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A compensation of Rs.25,000 together be paid to the applicants who are the victims of the Human Rights violation in this case."

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The learned counsel for the petitioner

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submitted that the order of SHRC needs to be set aside as the show cause notice was only respect of the grievance made in the complaint by respondent Nos.1 and 2 and there was no whisper about handcuffing in the complaint. The learned counsel submitted that only in the rejoinder the respondent Nos.1 and 2 contended that they were handcuffed and that act was in violation of human rights and also in violation of Article 21 of the Constitution of India. Learned counsel for the petitioner took this Court through the allegations made in the complaint. On that, learned counsel for respondent No.1 and 2 submitted that

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a copy of statement dated 28-12-2002 given before the Additional Superintendent of Police Ahmednagar was enclosed with the complaint given to the SHRC and that was with regard to the handcuffing.

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This Court has carefully gone through the complaint given to the SHRC dated 16-12-2002. The allegations made show that they were mainly with regard to the activities of the aforesaid two doctors in the administration, management of the institution which was running the college. It was also contended that there was one suicide note in which the Librarian had blamed the two doctors. It was contended in the complaint that respondent No.1 and 2 who had made complaint were attempting to see that illegal acts of the present petitioner, Police Inspector are brought to the notice of the authority and action is taken against him. In the complaint it was the contention of respondent Nos.1 and 2 that instead of taking action against the aforesaid two doctors, action was taken against respondent Nos.1 and 2 by the present petitioner and even threats were given to them. This approach and conduct of the present petitioner

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was called as inhuman treatment given to respondent Nos. 1 and 2. There was no specific allegation in the complaint of handcuffing though there are allegations that the petitioner had violated the human rights and the provisions of Article 21 of the Constitution of India.

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In view of the contention made by the respondent Nos.1 and 2 that copy of statement given to the Additional Superintendent of Police was annexed to the complaint given to the SHRC, this Court has perused the record. Copy of statement dated 28-12-2002 annexed with the complaint given to SHRC is there. In the statement given to the Additional Superintendent of Police respondent Nos.1 and 2 had made a mention of the complaint given by them on 31-10-2002 and in the statement it was contended that they were handcuffed which was illegal.

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Though there is aforesaid record and copy of statement dated 28-12-2002 was enclosed along with the complaint made to SHRC, there was no specific allegation that there was illegal handcuffing from the present

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petitioner. The complaint and the record show that the Additional Superintendent of Police had made inquiry due to some allegations made by the respondent Nos.1 and 2. Before taking finding of the inquiry, respondent Nos.1 and 2 made complaint to SHRC and it was not specifically mentioned that they had grievance about handcuffing. There was grievance that present petitioner was favouring the two doctors and he had taken action against respondent Nos.1 and 2 when they were trying to expose the two doctors. Thus, there was no specific allegation in the complaint given to SHRC that there was violation of the human rights due to handcuffing. Due to this circumstance, it cannot be said that when the complaint was made or when the show cause notice was issued by SHRC, there was specific allegation of handcuffing against the petitioner before SHRC.

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The learned counsel for the petitioner has placed reliance on the case reported as (2004) 2 SCC 579 (N.C. Dhoundial v. Union of India) which is on the point of limitation in view of provision section 36(2) of the Protection of Human Rights Act, 1993. On the other hand,

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learned counsel for respondent Nos.1 and 2 has placed reliance on the following reported cases.

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(1) (2004) 2 SCC 579 (N.C. Dhoundial v. Union of India)

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(2) 2017 ALL MR (Cri) 406 (Satish Banwarilal Sharma v. Union Territory of Diu, Daman and Dadra & Nagar Haveli)

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(3) (1980) 3 SCC 526 (Prem Shankar Shukla v. Delhi Administration)

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(4) 2014 ALL MR (Cri) 2461 (Kisan @ Kisanchand Tharurmal Wadhawa Vs. State of Maharashtra)

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(5) 2002 Cri.L.J. 2154 (Jaswindar Singh v. State of Karnataka)

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(6) 2012 ALL SCR 2401 (Dr. Mehmood Nayyar Azam vs. State of Chhattisgarh)

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(7) 2006 ALL MR (Cri) 1241 (Karishma Kamlesh Naik v. Government of Goa)

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(8) (1991) 2 SCC 373 (State of Maharashtra v. Ravikant S. Patil)

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(9) (1990) 2 Bom CR 242 (Ravikant Patil v. The Director General of Police Maharashtra)

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(10) (1999) 2 SCC 131 (Paramjit Kaur v. State of Punjab)

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(11) 2008 ALL MR (Cr) 2432 (Antonio Sebastiao Mervyan v. State of Goa).

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This Court has carefully gone through the observation made in the aforesaid reported cases. In the first case cited by the learned counsel for respondent Nos.1 and 2 it is laid down that bar of section 36(2) of the Act is a jurisdictional bar. In the second case the facts were very peculiar in nature. In that case, petitioner was journalist and he had published news items for exposing illegal deeds of Government officers. There was possibility that due to such activity the petitioner, journalist was paraded in handcuffed condition from Bus Stand to Police Station. On facts it was held that action of police was mala fide and they wanted to humiliate and insult the petitioner. In the third case by referring to Articles 14, 19 and 21 of the Constitution of India and also the provisions of Punjab Police Rules, 1934, it was held that handcuffing of under trial prisoners by escort while taking the prisoners from jail to Court and back is permissible only in very exceptional circumstances and onus is on the authority imposing handcuffing to justify the action. In the case of Ravikant Patil (cited supra) the person arrested was handcuffed and he was paraded through main streets and squares of Solapur city. Prior to this action, news item was

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11 Cr WP 394 of 2006

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published in daily news paper that such action was possible. In view of these circumstances, the action was taken by the Court. The Apex Court has also disapproved the classification of persons who are arrested into classes like "better class" and "ordinary class".

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There cannot be dispute over the propositions made in the aforesaid cases. Similarly only because respondent No. 1 is an Advocate, he cannot claim special treatment. The petitioner has admitted that there was handcuffing but he has given explanation by making specific contentions. It is the contention that the Advocates were not cooperating and one senior Advocate out of two Advocates was not that cooperative. It is contended that they wanted to resist their taking to Court of Judicial Magistrate for remand purpose. It is contended that to see that they are taken to the Judicial Magistrate for remand purpose and they do not create more problem, handcuffing was done. It is already observed that the accused persons are involved in the crime of extortion and already amount of Rs.82,000/- was collected by one of the accused as extortion money. They have created false

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record like suicide note for extortion purpose and for that necessary observations are already made. These circumstances need to be kept in mind while considering the contentions made by the present petitioner in reply. It is true that approval of the Judicial Magistrate was not obtained in respect of handcuffing but it also true that no complaint was made to the Judicial Magistrate by these persons with regard to handcuffing. There is no reason to disbelieve the contentions made by the petitioner that in complaint there was no specific allegation.

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This Court has made specific observations. On the date of the show cause notice issued to the petitioner by SHRC also, there was no specific allegation in respect of handcuffing. Only in the rejoinder filed as reply to the contentions made by the petitioner something was contended about handcuffing and that contention is considered by SHRC. Thus, on the date of the complaint, there was no allegation of illegal handcuffing and it can be said that first time specific allegations came when the rejoinder was filed by respondent Nos.1 and 2 after filing reply by the present petitioner. In view of these

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circumstances, this Court holds that the action was bared due to section 36(2) of the act as the specific allegations were made after the expiry period of one year mentioned in the provision of this section. Due to all these circumstances this Court holds that the order made by SHRC cannot sustain in law. In the result, the petition ins allowed. The order of the Maharashtra State Human Rights Commission under challenge is est aside. Rule made absolute in those terms.

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Sd/- Sd/- (S.M. GAVHANE, J.) (T.V. NALAWADE, J.)

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rsl

Ramdas Deoram Shinde v. Sagar Madhukar Gunjal and Ors.

Case brief

What is this about?

What did the court decide?

Ramdas Deoram Shinde v. Sagar Madhukar Gunjal and Ors.

Case brief

What is this about?

What did the court decide?

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