The authorities cannot detain a person under section 107 of the Cr.P.C. in the absence of a breach of public peace or disturbance of public tranquility, and such detention violates the fundamental right to personal liberty under Article 21 of the Constitution of India.

Headnote:
CRIMINAL WRIT PETITION - SECTION 107 OF THE CODE OF CRIMINAL PROCEDURE - PERSONAL LIBERTY - ARBITRARY DETENTION - COMPENSATION - SECTION 21 OF THE CONSTITUTION OF INDIA - SECTION 107 OF THE CODE OF CRIMINAL PROCEDURE - SCOPE AND APPLICABILITY - BREACH OF PUBLIC PEACE OR DISTURBANCE OF PUBLIC TRANQUILITY - ESSENTIAL INGREDIENTS - JURISDICTION OF MAGISTRATE - DISCRETION OF MAGISTRATE - RIGHT TO A PROMPT AND SPEEDY TRIAL - ARTICLE 21 OF THE CONSTITUTION OF INDIA - MONETARY AMENDS - DEPARTMENTAL ENQUIRY.
Fact of the Case:

The petitioner, a citizen of India, was arrested and detained in jail for 63 days under section 107 of the Code of Criminal Procedure (Cr.P.C.) based on a complaint filed by his wife alleging domestic violence. The petitioner challenged the legality of his detention, arguing that the authorities lacked the power to initiate proceedings against him under section 107 and that his detention violated his fundamental right to personal liberty under Article 21 of the Constitution of India.
Finding of the Court:

The court found that the authorities had no power to initiate proceedings against the petitioner under section 107 of the Cr.P.C. because there was no evidence of a breach of public peace or disturbance of public tranquility, which are essential ingredients for invoking the provisions of section 107. The court also found that the authorities had failed to provide the petitioner with a prompt and speedy trial, which is a fundamental right guaranteed under Article 21 of the Constitution. The court held that the petitioner's detention was arbitrary and colourable exercise of powers under section 107 of the Cr.P.C.
Issues: 1. Whether the authorities had the power to initiate proceedings against the petitioner under section 107 of the Cr.P.C. 2. Whether the petitioner's detention violated his fundamental right to personal liberty under Article 21 of the Constitution of India. 3. Whether the authorities had failed to provide the petitioner with a prompt and speedy trial.
Ratio Decidendi: 1. Section 107 of the Cr.P.C. is intended for persons who are of desperate characters and habitually disturb the public peace or who inspite of orders of civil or criminal courts "finding possession against them" persist in their unlawful conduct of disturbing the possession of others by taking the law into their own hands. 2. A dispute between a husband and wife is incapable of being dealt with under section 107 of the Cr.P.C. 3. For invoking the proceeding under section 107 of Cr.P.C. there must be strong material to satisfy the Magistrate that imminent breach of public peace is threatened and satisfaction regarding sufficiency of ground to proceed must be clear from the order. 4. The right to a reasonably expeditious trial is an integral and essential part of reasonable, fair and just procedure in case of an accused who is in jeopardy of his life or personal liberty. 5. In case of violation of fundamental right by State's instrumentalities or servants, Court can direct the State to pay compensation to the victim or his heir by way of 'monetary amends' and redressal.
Final Decision: The court allowed the petition and directed the State of Maharashtra to pay a sum of Rs. 50,000/- to the petitioner as compensation for his illegal confinement in jail. The court also directed the State to hold a Departmental Enquiry into the conduct of the respondents and take appropriate action against them.

JUDGMENT - A.D. MANE, J.:---This is a criminal writ petition under Article 226 read with Articles 21 and 22 of the Constitution of India, arising out of following set of circumstances.

2.The petitioner is citizen of India and permanently resides in village Pimpalwadi, Taluka Kallam, District -Osmanabad. The petitioner submits that he is a peace loving citizen and also law abiding citizen. He is agriculturist by occupation. He is married and is having two sons and one daughter. The respondent No. 1 Indirabai is his legally wedded wife. On 24-4-1995 Indirabai filed a complaint against him in Police Station Kallam, inter alia, alleging that she was beaten by the petitioner and the petitioner is in habit of abusing her. She has further alleged that the petitioner removed the hut and sold some household articles and kept the wife and the children without any shelter.

3.The respondent No. 2 was working as P.S.I. at Kallam at the relevant time. On receiving the complaint from respondent No. 1, he registered the offence under sections 323, 504, 506 read with section 34 of I.P.C. but ultimately it was treated as non-cognizable offence under Serial No. 264 of 1995. The inquiry into that complaint was conducted by Police Head Constable the respondent No. 3, who at the relevant time was working under the respondent No. 2 at the same police station. During the inquiry he recorded the statements of children of the petitioner and three neighbours. The respondent No. 1 was informed that her complaint is of non-cognizable nature and therefore she may approach the Court if she so desires. On 25-4-1995 the respondent No. 2 P.S.I., however, made a report to the respondent No. 4 the Special Executive Magistrate for ordering the petitioner to execute a bond with or without surety for keeping peace for such period as he may think fit as according to the respondent No. 2 the petitioner was likely to commit breach of peace and disturb the public tranquility. A copy of the said report is annexed to the petition at Exhibit G. At the relevant time one Shri C.G. Sousudi was the Special Executive Magistrate (L.C.B.) Osmanabad but he is now retired with effect from 11-5-1995 and one Shri D.A. Karkhelikar was working in his place as Special Executive Magistrate, who is Police Inspector (L.C.B.) Osmanabad.

4.It appears that the respondent No. 4 issued a show-cause notice to the petitioner to show cause as to why he should not be ordered to execute a bond of Rs. 5,000/- with two sureties as in his opinion there was sufficient ground for proceeding against the petitioner under section 109 and 110 of the Code of Criminal Procedure. The petitioner submits that the Police arrested him on the same day and produced before the respondent No. 4 who had registered a Chapter Case No. 141 of 1995 under section 107, 109 and 110 of the Cr.P.C. A copy of the show cause notice is also produced at Exh. J to the petition. The petitioner further says that on the same day he was sent to Jail till 3-5-1995, and he has produced the copy of the warrant at Exhibit K to the petition to that effect.

5.It is the case of the petitioner that right from 25-4-1995 till 26-6-1995 he was kept in District Jail, Osmanabad and released on bond on 26-6-1995 only when the respondents No. 2, 3 and 4 learnt that the petitioner was approaching the Honourable High Court. In this context the petitioner says that on 26-6-1995 he informed the Superintendent of Jail, Osmanabad that he has been in jail two months and due to his poverty he could not furnish any bond. On account of this his wife and children are starving and therefore he requested to release him on personal bond with an undertaking that he would furnish the bond after his release. Copy of the said application is annexed at Exh. L. to the petition.

6.The petitioner submits that proceeding initiated against him under the provisions of sections 107, 109, 110 and 111 of the Code of Criminal Procedure is without jurisdiction and without any po

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Judicial Analysis

1997 Supreme(Bom) 556

The authorities cannot detain a person under section 107 of the Cr.P.C. in the absence of a breach of public peace or disturbance of public tranquility, and such detention violates the fundamental right to personal liberty under Article 21 of the Constitution of India.

Cases Referred (1)

Judicial Analysis