Sarjerao Shamrao Dhas & others vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 1295

IN THE HIGH COURT OF BOMBAY
Tahilramani V.K., J.
Sarjerao Shamrao Dhas others .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 216 of 1987, decided on 10-12-2002.
Advocates appeared :
P.P. Hudlikar with S.D. Thokade i/b. S.S. Jadhav, for applicant.
K.K. Kapoor, A.P.P., for State.

Headnote:Constitution of India – Art, 226 - Wrongful arrest & detention in police custody - Compensation claim - Infringement of fundamental right of a citizen can not stop by giving a mere declaration Compensatory relief is to be provided under public law jurisdiction for wrong done - Claim of a citizen in such a case is based on principle of strict liability to which defence of sovereign immunity is not available - In assessment of compensation court has to see the compensatory & not punitive element - Petitioner, a practising lawyer aged 76 years, was arrested by respondent No.3, a Police officer in a case registered u/ss. 420, 468 & 471 - Arrest found male fide & mischievous & not protected by element of good faith State to pay compensation of Rs. 25000/- to petitioner & can .recover from respondent No.3 after due inquiry. (Paras 22 to 25 & 31)
       (ii) Criminal Procedure Code, 1973 - Section 41 - Arrest - Police officer is not expected to act in a mechanical manner & in all cases to arrest accused as soon as report of cognizable offence is lodged - Existence of power to arrest is one thing & justification for exercise of it is another - There must be some reasonable justification in opinion of officer effecting arrest that it was necessary & justified - Except in heinous offences, arrest must be avoided if police officer issues notice to a person to attend the Station House & not leave station without permission would do.
       Held: In the case of Joginder Kumar, the Supreme Court has observed in para 24 of the judgment that no arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and. detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. The Supreme Court went on to observe that it would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own, interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. A person is not liable to be arrested merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified and except in heinous offences, an arrest must be avoided if a Police Officer issues notices to person to attend the Station House and not leave station without permission would do. (Para 20)
       We would also like to make reference to the case of M.C. Abraham & another v. State of Maharashtra & others, 2000(9) SCALE 769. The Supreme Court dealt with the question of powers of Investigating Officer with regard to arrest. Section 41 of the Criminal Procedure Code gives power to a Police Officer to arrest an offender without an order from a Magistrate or without a warrant. Section 41 of the Criminal Procedure Code gives discretion to the Police Officer in the matter of arrest. However, the Supreme Court has observed that Police Officer is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. It is further observed that in appropriate cases, after some investigation, the Investigating Officer may make up his mind as to whether it is necessary to arrest the accused person. Since the power to arrest is a discretionary, a Police Officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. The Supreme Court went on to observe that since an arrest is in the nature of an encroachment on ,the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. The power, therefore, has to be exercised with caution and circumspection. (Para 21)

JUDGMENT - TAHILRAMANI V.K., J.:---The appellants who are the original accused Nos. 1 to 5, 7 to 17, 20, 21 23 have been mainly convicted under sections 307 read with 34 of I.P.C. by the learned IInd Additional Sessions Judge, Solhapur in Sessions Case No. 39/86. In the said case, all the appellants have been convicted under sections 147 and 148 I.P.C. and sentenced to R.I. for 1 year and 2 years respectively on those counts. They have also been convicted under section 307 read with 149 I.P.C. and sentenced to R.I. for 7 years and to pay fine of Rs. 300/- i.d. R.I. for 3 months. They had also been convicted under section 332 read with 149 I.P.C. and sentenced to undergo R.I. for 2 years and under section 135(1) of the Bombay Police Act.

2. On the last occasion i.e. 2-12-2002 when this matter came up for hearing, all the injured witnesses in the said case i.e. P.W. 2 Balu Shivdas Dhas, P.W. 5 Vithal Balbhim Dhas, P.W. 6 Chandrakant Kerba Dhas, P.W. 8 Kashinath Shankar Dhas, P.W. 9 Laxman Limbaraj Dhas and P.W. 10 Arjun Krishna Dhas were personally present before this Court and they showed their desire to settle the matter amicably. It was stated on behalf of the injured witnesses that they have settled the matter amongst themselves and they are residing amicably and peacefully in the village. I ascertained that they had voluntarily decided to settle the matter. Hence, time was given to them till today to file their affidavits. Accordingly, the necessary affidavits by all of them have been filed and the said affidavits are taken on record and marked X (colly.) for identification. The translation of the said affidavits is marked as X-1 (colly.).

3. However, it is seen that the appellants/accused have been mainly convicted under section 307 of I.P.C. which is a non-compoundable offence, hence, I cannot acquit the appellants/accused persons on the basis of the said compromise. However, useful reference may be made to the case reported in 1995 Supp. (4) S.C.C. page 631 (Salim and others v. State of M.P.)1, wherein similar facts arose. In the said case, the appellants were convicted under section 307 read with 34 I.P.C. The Apex Court had observed thus :-

"We cannot acquit the accused persons on the basis of the compromise. However, as held by this Court in (Ram Pujan and others v. State of U.P.)2, 1973(2) S.C.C. 456 the fact that they have compromised the matter and have patched up their differences and the fact that since then they have been living together happily, has relevance so far as the question of sentence is concerned."

The Honble Apex Court after having been satisfied of genuineness of the compromise allowed the appeal and directed that the sentence should be altered to that already undergone.

4. In the present case also, the appellants have been convicted mainly under section 307 of I.P.C. The facts in the present case and those in the case of Salim (supra) are similar. I am also inclined to pass similar orders with the view that henceforth no untoward incident takes place and that the appellants and injured witnesses will live in peace and harmony in the village.

5. In this view of the matter, appeal of the appellants is partly allowed. The conviction on all counts is confirmed, however the sentences are reduced to that already undergone by them. The bail bonds shall stand cancelled.

Appeal is partly allowed in above terms.

Appeal partly allowed.

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2002 Supreme(Bom) 1295

Cases Referred (1)