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IN THE HIGH COURT OF BOMBAY
A.V. Savant T.K. Chandrashekhara Das, JJ.
Smt. Vimladevi Tiwari ..... Petitioner.
Versus
State of Maharashtra others .... Respondents.
Criminal Writ Petition No. 258 of 1998, decided on 22-4-1998.
Advocates appeared :
Smt. M.R. Behere, for the petitioner.
R.K. Patil, A.P.P., for respondent Nos. 1 and 2.
P.M. Pradhan, for respondent No. 3.
Sections 116 and 111-Death Of accused in detention-Compensation-Detention without enquiry under Section 116(3) of Code by Magistrate-Illegal detention-District Judge directed to hold an enquiry regarding allegations of Police excesses causing his death and to determine compensation-State and Executive Magistrate directed jointly and severally to pay Rs. 10,000/- as compensation.-However on the question of death of petitioners son, two affidavits are filed before Court. One is by P.5.I. on 16th March, 1998 along with copy of the post-mortem report. The probable cause of death in the said post- mortem report is :
"Death due to pyogenic meningitis (Natural)."
The other affidavit is by Jailor of the Thane Central Jail on 19th March, 1998 denying the allegations of any ill- treatment to T while he was in the jail. As far as the case of death of T is concerned, it is not possible for Court, in the present enquiry, to record positive findings as to the circumstances resulting in his death. This would require evidence to be adduced which in a petition of this nature, is not possible for Court to do. In the circumstances, it was preferred to adopt the course indicated by the Apex Court in Peoples Union for Civil Liberties (PUCL) v. Union of India, 1995 Supp (2) SCC 572. In view of the contradictory versions before the Apex Court regarding the circumstances leading to the death of two persons, the Apex Court thought it proper that enquiry be made by the District and Sessions Judge, who was authorised to record evidence of witnesses and submit a report to the Apex Court. It was proposed to direct the District and Sessions Judge, Thane to hold an enquiry into the circumstances and the cause of the death of T in the Thane Central Jail on 25th December, 1997. In the event of District and Sessions Judge coming to the conclusion that the death was as a result of any act or omission of the concerned officer of the State, he will also determine the quantum of damage and compensation payable to the petitioner in that behalf. However, as far as the illegal detention of the petitioners son from 6th December to 25th December is concerned, it was proposed to dispose of the matter by awarding compensation to be paid to the petitioner for the illegal detention of her son from 6th December to 25th December, 1997. As indicated earlier, this period is split into two parts, i.e. (i) from 6th December to 18th December, 1997; and (ii) from 18th December to 25th December, 1997. In the light of the findings recorded by want it must be held that the detention of T was wholly unauthorised and illegal. Held, therefore, to direct respondent Nos. 1 and 3 jointly and severally to pay Rs. 10,000/- to the petitioner by way of compensation for illegal detention of her son from 6th December to 25th December, 1997.
Sections 116 and Ill-Constitution of India, Articles 21, 22, 226 and 227--Detention-No order passed by Magistrate under Section 116(3) of Code-Police Officer acting as Magistrate not informed the accused that he is acting as Magistrate-Guideline issued by Police Commissioner, violated-Matter adjourned for two weeks-Accused remained in custody-Further detention of accused not explained-Death of accused in custody-Shown callous approach on part of officers while dealing with liberty of citizen.-When an Assistant Commissioner of Police exercises the powers of a Special Executive Magistrate it will be necessary for him to bring to the notice of the person against whom the proceedings are initated that the Assistant Commissioner of Police is acting as Special Executive Magistrate and not as Police Officer. The manner in which the present proceedings are conducted, leaves much to be desired. Apart from the stereo type pro forma statements, no care has been taken to observe the elementary requirements of sub-section (3) of Section 116 of the Code. No case has been made out in writing that immediate measures were necessary to direct the person to execute a bond. No time was given to the person who was supposed to be a petty thief even to contact anyone for furnishing the bond in the sum of Rs. 3,000/-. The power to detain him in custody till the time bond is executed is undoubtedly discretionary power as is clear from the closing words of sub-section (3) of Section 116 of Code. The above facts, show callous approach on the part of the said officers of the first respondent State while dealing with the liberty of the citizen. There is no justification in the nature of an order under Section 116(3) justifying the detention of J from 6th to 18th December. In the absence of any order or proceeding recorded on 18th December, further detention from 18th December, till the date of his death is equally illegal. Therefore, no alternative that the detention of J initially from 6th December to 18th December, 1997 was wholly illegal in the absence of an order under Section 116(3) of the Code. Similarly, in the absence of any order on 18th December, 1997 even adjourning the proceeding, assuming that such a course was permissible in view of what the Apex Court has said of its judgment in Madlzll Unzayes case (see para 9 above) further detention of J from 18th December till 25th December was equally illegal.
2. Pursuant to the direction given by us while issuing rule on 27th March, 1998, further affidavits have been filed before us. The concerned Executive Magistrate namely respondent No.
3 Shri. A.S. Deshbhartar, Assistant Commissioner of Police has filed his affidavit dated 16th April, 1998. He has also produced affidavit of Police Head Constable Shri. R.B. More sworn on 10th April, 1998. We have heard Smt. Behere for the petitioner, Shri. R.B. Patil, A.P.P. for respondent Nos. 1 and 2 and Shri P.M. Pradhan who is appointed as Special Counsel for respondent No. 3. In short, the grievance of the petitioner - mother of the deceased is about the illegal manner in which the orders under section 111 and 116 of the Code of Criminal Procedure were passed resulting in the unauthorised detention of her son Jitendra Datta Tiwari since deceased. The petitioner's second grievance is about the unnatural circumstances in which her son Jitendra has died on 25th December, 1997.
3. As indicated in our earlier order, Jitendra was arrested at about 11.45 a.m. on 5th December, 1997 at Castle Mill area, Gokul Nagar falling in the jurisdiction of Naupada Police Station in Thane. On 6th December, 1997 itself head constable More attached to Naupada Police Station made a report on the basis of which an order under section 111 of the Code was passed by the third respondent. The time at which the report was made and the time at which the order was passed is not clear. Pursuant to the order passed under section 111 of the Code, Jitendra was produced before the third respondent on 6th December, 1997 itself, though the timing on this is also not clear. As required by section 112 of the Code, the order under section 111 was read over to him and it is alleged that the substance thereof was explained to him. He is alleged to have admitted that he was indulging in small thefts for his survival and immediately, an order has been passed on 6th December, 1997 itself calling upon said Jitendra Tiwari to furnish a bond for good behaviour in the sum of Rs. 3,000/- for a period of six months and since the matter was adjourned to 18th December, 1997, for final disposal, Jitendra Tiwari was ordered to be kept in the Magisterial custody till 18th December, 1997.
4. Pursuant to the order passed by us on 27th March, 1997, the original proceedings which were made available to us by the learned A.P.P. Shri Patil, were sealed and kept in the custody of Registrar of this Court. We have perused the same and the position emerging therefrom is as under.
5. In the show cause Notice/Order passed on 6th December, 1997, under section 111 of the Code, typed portion says that a report was submitted by Head Constable More that there was likelihood of breach of peace or disturbance of public tranquillity or damage to the public property, details of which are supposed to be mentioned in the hand written portion in the latter part of the order under section 111. All that the hand written portion says is that Jitendra Tiwari was found moving in suspicious manner in Gokul Nagar - Castle Mill area on 5th December, 1997 at about 11.45 a.m. and was accosted by Naupada Police Station. Jitendra Tiwari was not having any regular avocation but was indulging in petty thefts which was his habit, and, therefore, there was danger to public property at the hands of Jitendra Tiwari. Relying upon these fa
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