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2022 Supreme(Kar) 145
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SURAJ GOVINDARAJ, J.
Shri Suprit Ishwar Divate – Appellant
Versus
The State Of Karnataka Represented By Its Principal Secretary – Respondent
Writ Petition No. 115362 of 2019 (GM-POLICE)
Decided on : 10-06-2022
Advocate Appeared:
For the Appellant :Sri Santosh P. Pujari, Advocate
For the Respondent: Sri Praveen K. Uppar, HCGP
Headnote:
Constitution of India,1950 - Articles 21, 32 , 226 and 142 - Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code,1973 - Section 41, 41, 420 , 357 , 46 and 49 - Karnataka Police Manual - Sections 831, 832, 833, 834 and 835 - Information Technology Act, 2000 - Section 66-A(b) - Appeal against conviction - Dishonour of cheques - Petitioner claims to be a law student studying - Certain disputes arose between petitioner and respect of a mortgage deed executed in respect of agricultural lands belonging to the petitioner five criminal cases were filed against petitioner for offences under Section 138 of Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of said mortgage - Dishonor filed five criminal Additional Civil Judge and JMFC - Warrant issued by the II Additional Civil Judge and JMFC., vide order Respondent No.3-Police Sub-Inspector, Police Station - petitioner claims that petitioner was handcuffed and paraded with handcuffs Town and later on was taken in a K.S.R.T.C Bus in handcuffs from Police Station, without producing petitioner before the Court - Petitioner claims that said incident has been video recorded and a compact disc in relation thereto has been produced by petitioner - Held, Trial Court shall endeavor as far as possible to avoid physical appearance of the under trial prisoner and permit under trial prisoner to appear through video conferencing - Only in the event of Court being of opinion that physical presence of accused is required in Court - Court could direct for such physical presence by a reasoned - permission to handcuff an under-trial prisoner would have to be taken prior to the production of under trial prisoner before Court and obtain an order for handcuffing from the said Court. If no such permission is applied for and under trial prisoner were to be handcuffed, the concerned police officer would be taking a risk of such handcuffing being declared illegal and action being taken against them - Contention of learned HCGP that handcuffing of the petitioner was resorted to since there were not enough police personnel to safeguard and prevent the escape if any is no excuse at all - It is for State to equip all police stations with adequate and necessary police personnel required for purpose of discharge of the duties and obligations of the State - Learned HCGP pointed out that there are several vacancies. If that be so, it is for State to fill up those vacancies at earliest - Learned HCGP is directed to bring to the notice of Director-General of Police and the Principal Secretary Home Department observations so as to prepare a plan and complete the recruitment in a time bound manner - Director General of Police shall also endeavor to make available body cameras to all the police officers entitled to arrest a person, so that manner of arrest is recorded by such body cameras - petition is disposed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ in the nature of mandamus or any other writ or directions directing the Respondents to grant/sanction compensation of Rs.25,00,000/-(Rupees Twenty Five Lakhs only), for the loss of reputation, illegal detention and illegal handcuffing of the petitioner, even prior to the Petitioner been proved guilty in a exclusively bailable offence under the provision of Negotiable Instrument Act, 1881;
b. Issue a writ in the nature of mandamus or any other writ or directions directing the Respondents, to ensure that the laws, rules, regulations, circulars, notifications etc., that have been issued by the Central Government Agencies & the State Government Agencies & the directions of the Hon’ble Apex Court & this Hon’ble Court are abided, prior to arresting the petitioner or calling the petitioner to the Police Station on the pretext of enquiry etc.
c. Pass such other order or orders as the Hon’ble Court may deem fit in the facts and circumstances of the case.
2. The petitioner claims to be a law student studying in Shikshan Parasrak Mandal’s Law College, at Raibag. Certain disputes arose between the petitioner and one Babu Annappa @ Annu Gurav in respect of a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Pursuant thereto, five criminal cases were filed against the petitioner for offences under Section 138 of Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. As regards the said dishonor of cheques, Babu Annappa filed five criminal proceedings viz., C.C.Nos.531 to 535/2019 before II Additional Civil Judge and JMFC., Chikodi at Chikodi.
3. The petitioner was arrested in C.C.No.533/2019 in furtherance of non-bailable warrant issued by the II Additional Civil Judge and JMFC., Chikodi vide order dated 10.04.2019 by the Respondent No.3-Police Sub-Inspector, Ankali Police Station between 1.00 p.m. to 1.30 p.m., in the Market Place at Ankali, when the petitioner is stated to have been returning from his College after writing his internal exams.
4. The petitioner claims that the petitioner was handcuffed and paraded with handcuffs in Ankali Town and later on was taken in a K.S.R.T.C Bus in handcuffs from Ankali Police Station to Chikodi Police Station, without producing the petitioner before the Court. The petitioner claims that the said incident has been video recorded and a compact disc in relation thereto has been produced by the petitioner. The petitioner moved a bail application in the said proceedings. However, the same was rejected and the petitioner was remanded to Judicial custody. Subsequently, the petitioner was convicted by the II Additional Civil Judge and JMFC., Chikodi in all five criminal cases, as regards which, appeals were filed by the petitioner in Criminal Appeal Nos.362 to 366/2019 challenging the said order of conviction, wherein the 7th Additional District and Sessions Court, Belagavi had stayed the order of conviction and sentence vide order dated 19.10.2019.
5. The petitioner claims that despite the stay, respondent No.3 officials were illegally arresting and detaining the petitioner, more particularly, on 05.11.2019, the petitioner is alleged to have been detained and taken to the Ankali Police Station stating that an execution warrant has been issued against the petitioner. But later on, he was released when the advocate of the petitioner approached the Ankali Police Station. The petitioner further claims that the petitioner was once again called by respondent No.3 officials to attend the Ankali Police Station on 08.11.2019 and further that the police attached to respondent No.3 have been visiting the house of the petitioner in civil dress and have threatened him. It is on the basis of the above, the petitioner claims that his family life has been ruined so also his reputation. The petitioner’s fundamental rights have been violated by t
