Partly allowed

Kisan Rupa Pawar and Anr. v. the State of Maharashtra and Others

Bombay HC5 Nov 2019WP/955/2019

Case brief

AI extract

What is this about?

High Court at Bombay allowed the writ petition partly, holding that the police illegally detained the petitioners without serving mandatory Section 41-A notice and without claiming magisterial custody. The Court directed the State of Maharashtra to pay nominal compensation of Rs. 10,000 and Rs. 15,000 respectively to the petitioners for the violation of fundamental rights.

What did the court decide?

Respondent No. 1 State of Maharashtra directed to pay compensation of Rs. 10,000 to Petitioner No. 1 and Rs. 15,000 to Petitioner No. 2.

Kisan Rupa Pawar and Anr. Vs the State… — Constitutional and Fundamental Rights | Bombay HC (2019)

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Cri.W.P.No.955/2019

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 955 OF 2019

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1.	Kisan Rupa Pawar Age 42 years, Occu. Contractor/ Labour Supplier, R/o. Aadarsh Vasahat, Village Umbarkheda, Tq. Kannad, Dist. Aurangabad.
2.	Amol Kisan Pawar, Age 23 years, Occu. Student, R/o. Aadarsh Vasahat, Village Umbarkheda, Tq. Kannad, Dist. Aurangabad.	....Petitioners.
	Versus
1.	The State of Maharashtra Through Principal Secretary, Home Department, Maharashtra State, Mantralaya, Mumbai -32.
2.	Shri. Jagdish Madhukar Pawar, The Assistant Police Inspector, Pishor Police Station, Tq. Kannad, Aurangabad.
3.	Shri. Baban Keshav Malode, The Police Head Constable Pishor Police Station, Tq. Kannad, Aurangabad.
4.	Shri. Shravan Kaduba Tayde, The Police Head Constable, Pishor Police Station, Tq. Kannad, Aurangabad.
5.	Shri. Sandeep Vitthal Kankute, The Police Naik, Pishor Police Station, Tq. Kannad, Aurangabad.
6.	The Superintendent of Police, Rural Aurangabad, District Aurangabad.	....Respondents.

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Cri.W.P.No.955/2019

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Mr. A.S. Radikar, Advocate for petitioners. Mr. D.R. Kale, APP for respondent Nos. 1 to 6.

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CORAM : T.V. NALAWADE AND S.M. GAVHANE, JJ. DATED : 05/11/2019.

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JUDGMENT : [PER T.V. NALAWADE, J.]

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Rule. Rule made returnable forthwith. By consent, heard both the sides for fnal disposal.

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The petition is fled for direction to respondents to see that crime is registered against the concern police ofcers for illegal detention of the petitioners in police station and in respect of the incident in which the petitioners were assaulted by police. The relief is also claimed of declaration that their arrest was illegal and handcufng was also illegal and relief of direction is claimed against the respondents for giving compensation of Rs.2,00,000/- (Rupees two lakh) to the petitioners.

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Two crimes were registered on 9.5.2019 in Pishor Police Station, Aurangabad Rural. The frst report was given by the present petitioners and on that basis crime at C.R.No. 98/2019 was registered for ofences punishable under sections 324, 149 etc. of Indian Penal Code (‘IPC’ for short) against Omkar Chandu Pawar and others. On the same day, Omkar also gave report to police and on

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the basis of his report, crime came to be registered for ofences punishable under sections 324, 323, 34 etc. of IPC against the petitioners. Petitioner No. 1 is father of petitioner No. 2. It is the contention of petitioner No. 1 that he is a labour contractor and he supplies labour force to the sugar factory. It is the contention of petitioner No. 2 that he is a student and it is contention of both the petitioners that their arrest was unnecessary and it was illegal, but it was made with malafde intentions.

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Copies of F.I.Rs. of aforesaid two crimes are on the record. They show that there was some private dispute between the two sides and quarrel had taken place on that day and out of that quarrel, both the sides gave reports against each other. It was not that serious incident in which custodial interrogation was necessary. It is contended that on 31.5.2019 the petitioners were called in police station by the police and then they were kept in lock up of the police station from morning till 2.00 p.m. It is contended that demand of money was made from them for not showing their arrest and for not keeping them in custody and when the demand was not met with, they were assaulted in the police station by the police ofcers named in the petition and they were virtually robbed by taking cash amount of Rs.4,000/- from their person and gold ring of 10 grams from petitioner No. 1. It is contended that their mobile hand sets were also taken away by the police ofcers of Pishor Police

Cri.W.P.No.955/2019

Station.

It is the contention of petitioners that when they refused to give amount of Rs.20,000/-, which was demanded by police, they were handcufed and they were made to walk from police station up to the S.T. stand and by S.T. bus they were taken to Kannad Court of Judicial Magistrate, First Class (J.M.F.C.) and from the S.T. stand of Kannad, they were made to walk up to the Court when they were handcufed. It is contended that, that was done only to humiliate them as the demand of police was not met with by them. It is contended that when they were produced before J.M.F.C., the Magistrate made order of bail in their favour and they were released on bail by J.M.F.C.

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It is the contention of petitioners that ofences mentioned in Crime No. 99/2019 were all bailable and in view of that circumstance they could not have been kept in lock up by the police and police ought to have released them on bail. It is contended that the procedure required for making arrest was not followed and both the petitioners were illegally detained from 10.00 a.m. till their release by the Court of J.M.F.C. in the second session. It is contended that due to action of police, they were defamed in the society and the petitioner No. 2 will sufer irrepairable loss in his future as he was student at the relevant time. On various grounds including the

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grounds of mental agony, harassment, disrepute etc., the aforesaid compensation is claimed.

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The respondents, police ofcers of the concerned police station have fled two replies. The replies are similar. In the reply, it is admitted that on 31.5.2019 the petitioners came to the police station on their own. It is also admitted that notice under section 41-A of Criminal Procedure Code (‘Cr.P.C.’ for short) was not served on them prior to their coming to the police station. However, it is contended that after their arrival in the police station, an attempt was made by police to give them notice under section 41-A of Cr.P.C. It is contended that subsequently along with notice under section 41-B of Cr.P.C. the remand report was submitted before J.M.F.C. by police and so, there is compliance of provisions of Cr.P.C. It is contended that the allegations made against police that the petitioners were handcufed and only to humiliate them arrest was made, are not true.

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In view of nature of allegations, this Court had directed the learned APP to see that all the relevant record is produced. The learned APP showed to the Court a photocopy of notice given under section 41-B of Cr.P.C. and he took this Court through case diary. He submitted that there is nothing in provisions of sections 41, 41-A and 41-B of Cr.P.C. to prevent the police from making arrest. He

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submitted that there was possibly some misconception that the ofence punishable under section 324 of IPC is non bailable as in Cr.P.C. there is such mention. He submitted that, however no police custody remand was claimed in the Court of J.M.F.C. and on the same day, both the petitioners were released on bail by the Court.

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A photocopy of notifcation dated 21.6.2006 issued by Ministry of Home Afairs, Central Government is produced on the record and it shows that only the provisions of sections of Cr.P.C. mentioned in this notifcation came into force on the date of notifcation. The notifcation shows that except the provisions of sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a), other provisions of Amended Act, 2005 shall come into force. Copy of Amended Act (No. 25 of 2005) is on the record and it shows that in section 42(f)(iii), there is mention of section 324 of IPC. By amending Act, there was the intention to make section 324 of IPC as non bailable. That provision was excluded when the notifcation was issued. Thus, it is not disputed that on 31.5.2019 the ofence punishable under section 324 of IPC was bailable in Aurangabad district. Other ofecnces are already quoted and thus, there was no ofence registered against the present petitioners which was non bailable.

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The provision of section 436 of Cr.P.C. shows that when

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any person who is arrested in bailable ofence by police, the concerned police ofcer needs to release him on bail. When the person is not able to furnish surety, instead of taking bail, the person can be discharged by taking personal bond without surety for his appearance before the Court if his appearance before the Court is necessary in future. The amended provisions of Cr.P.C. like section 41-A and 41-B show that if the arrest of a person is not required which can be made under section 41(1) of Cr.P.C., then before efecting arrest, notice as required under section 41-A of Cr.P.C. needs to be given to him. A photocopy of notice given under section 41-B of Cr.P.C. was shown to this Court. This Court has no hesitation to hold that in the present matter, in view of the nature of dispute and nature of allegations, it was not necessary for police to make arrest and also produce the petitioners before the J.M.F.C. for magisterial custody remand. The remand report itself shows that police did not want the custody of the petitioners for the purpose of investigation and in the remand report, no allegations which are covered by the provision of section 41 were mentioned. In any case, the provision of section 436 of Cr.P.C. is mandatory in nature and so, it was necessary for the police to immediately release the petitioners, if police did not want to arrest them for any other purpose. Surprisingly, the learned APP tried to make submission that there was compliance of provision of section 41-A of Cr.P.C. as there is one copy of notice shown to be issued under section 41-B of Cr.P.C.

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The purpose behind the two notices is diferent and the contentions made in the reply afdavits by the respondents show that there was no compliance of both the provisions like provisions of sections 41-A and 41-B of Cr.P.C.

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This Court is not going into other allegations like that petitioners were virtually robbed and illegal demand was made from them and as they did not met the demand, to humiliate them the aforesaid steps were taken by police. Photocopy of complaint given in respect of this incident to District Superintendent of Police Aurangabad Rural on 3.6.2019 is produced on record. There are such allegations in that complaint and this court hopes that the District Superintendent of Police will inquire into the allegations made by the petitioners. After that Superintendent of Police can take further steps permitted by law.

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This Court is considering the present matter only to consider the act of respondents of illegal detention of two petitioners. The provisions of Articles 21 and 22 (1) of Constitution of India show the fundamental rights of the persons like petitioners. The safeguards need to be provided for compliance of Articles 21 and 22 of Constitution of India against the arbitrary arrest and detention. It needs to be presumed that aforesaid amended provisions of Cr.P.C. like sections 436, 41-A and 41-B are to comply the mandate of

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Articles 21 and 22 of Constitution of India. Section 41 of Cr.P.C. also needs to be kept in mind in that regard. When provisions like section 436 of Cr.P.C. are made, police cannot under any circumstance be allowed to deviate from that procedure.

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In the landmark case of D.K. Basu Vs. State of W.B. reported as AIR 1997 SC 610 , the Supreme Court has laid down the law in respect of the illegal detention and reliefs which can be granted in such cases. In other case, of Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa and others reported as AIR 1993 SC 1960 , the Apex Court has laid down that such actions of police are in blatant violation of human rights. The Apex Court has referred the provisions of International Covenant on Civil and Political Rights, 1966 to which India is a party. The Apex Court has laid down that Articles 21 and 226 of Constitution of India make it not only possible but necessary for the Court to grant compensation in such cases. Even mistake cannot be excused in such cases. This Court is not expected to decided as to whether there was the malice. So, this Court holds that compensation needs to be given to the petitioners.

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The facts of the present matter show that the petitioners were kept illegally in police lock up atleast from 10.00 a.m. to 2.00 p.m. After that they were shifted for taking them to concerned Court. Thus, there was illegal detention of atleast four hours in the present

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matter. The record is produced to show that petitioner No. 1 was working as labour contractor. Other record in respect of petitioner No. 2 is produced to show that in 2017 he had appeared for third year B.Sc. examination in Dr. Babasaheb Ambedkar Marathwada University, Aurangabad. Thus, it appears that he was graduate when he was arrested. When youngsters like petitioner No. 2 are involved in such pity ofence, police needs to show sensitivity. Due to action of police, the entire future and career of such youngster gets destroyed. Present case shows that police did not show any such sensitivity and the things are otherwise. Considering the status of the parties and the period for which they were illegally detained, huge amount of compensation can be granted. However, considering the possibility that the police had misconception that the ofence punishable under section 324 of IPC was non bailable, this Court is granting nominal compensation. In the result, following order :

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O R D E R

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I) The petition is partly allowed. II) Respondent No. 1 State of Maharashtra is hereby directed to pay compensation of Rs. 10,000/- (Rupees ten thousand) to petitioner No. 1 and compensation of Rs.15,000/- (Rupees ffteen thousand) to petitioner No. 2. III) Initially the amount is to be deposited by the respondent No. 1 State within 45 days from the date of this decision and the amount is to be given to petitioner Nos. 1

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and 2. If the amount is not deposited within 45 days, it shall carry interest at the rate of 8% p.a.

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IV) There is liberty to the State to recover this amount from the concerned police ofcers.

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Rule is made absolute in those terms.

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[ S.M. GAVHANE, J.] [T.V. NALAWADE, J.]

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