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2005 Supreme(Bom) 998
IN THE HIGH COURT OF BOMBAY
RIYAZ alias AHEMAD s/o JAMEEL
Versus
STATE OF MAHARASHTRA
Decided Date: 05/08/05
Headnote:Juvenile Justice (Care and Protection of Children) Act (56 of 2000) - Section 17 - Tortious Act - Minors detention in lockup - State’s liability for such acts committed by employees during employment - Compensation payable - State may take action according to law. - It is now well settled that the State is vicariously liable for the tortious act committed by its employees in the course of their employment. Therefore, the compensation will have to be paid by respondent No. 1. Respondent No. 1 can initiate appropriate action against the person who are responsible for causing the loss, for recovery of their monetary loss caused to the State.
Juvenile Justice (Care and Protection of Children) Act (56 of 2000) - Section 17 - Wrongful detention of student Naib Tahsildar must see whether a person is worth being kept in lockup - Minor should be produced before Juvenile Court - Any lapse is not condonable. - Undisputedly petitioner No. 3 was dealt along with other petitioners though in view of the provisions of Section 17 of the Juvenile Justice Act, provisions of Chapter VIII of the Criminal Procedure Code are not applicable to the Juveniles. Therefore Naib Tahsildar could not have entertained proceedings under Section 107, Criminal Procedure Code against petitioner No. 3. It was duty of the Naib Tahsildar to ascertain age of the accused as all of them were students and upon getting information, he should have given direction for producing the minor be fore the Juvenile Court. The lapse on the part of Naib Tahsildar in proceeding against a minor cannot be condoned. The conduct of respondents has resulted in incarceration of the Juvenile, which is prohibited by law, therefore, respondents are liable to pay compensation to petitioner No. 3.
Criminal Procedure Code, 1973 - Section 107 - Juvenile Justice (Care and Protection of Children) Act, (56 of 2000), Section 17 - Wrongful detention of juvenile. - Where conduct of State authorities had resulted in incarceration of juvenile therefore State authorities liable to pay compensation. - On 27.3.2005 while petitioners-students were going to the mosque for offering prayers they were arrested by respondent Nos. 4 and 5 and then detained in police lockup for the night and were taken to Tahsil office on the next day. Except the statement made by the respondents, there is nothing on record to show that in fact girls and their parents had come to the police station. There is no dispute that petitioner Nos. 1 and 2 were brought to the police station. If the case is that respondent Nos. 4 and 5 came across the petitioners who were teasing the girls and brought them to the police station, the theory that only two petitioners were brought to police station cannot be accepted as all the three of them are prosecuted for eve teasing. In these types of cases, enquiry is made on the spot and if the girls and parents are not willing to come forward to lodge a report, the offenders are brought to police station for taking decision regarding further action. Therefore, no further enquiry is contemplated. In this background the theory that during the course of enquiry information that petitioner No. 3 also indulged in teasing the girls, cannot be accepted. In any event, if he was not involved in the incident, petitioner No, 3 could not have been prosecuted along with other two petitioners. Petitioner No. 3 was dealt along with other petitioners though in view of the provisions of Section 17 of the Juvenile Justice Act, provisions of Chapter VIII of Criminal Procedure Code are not applicable to the juveniles. Therefore Naib Tahsildar could not have entertained proceedings under Section 107, Criminal Procedure Code against petitioner No. 3. It was duty of the Naib Tahsildar to ascertain age of the accused as all of them were students and upon getting information, he should have given direction for producing the minor before the Juvenile Court. The lapse on the part of Naib Tahsildar in proceeding against a minor cannot be condoned. The conduct of respondents has resulted in incarceration of the juvenile, which is prohibited by law, therefore, respondents are liable to pay compensation to petitioner No. 3. 1997 Cri LJ 743 - Referred .
Criminal Procedure Code, 1973 - Section 107 Juvenile Justice (Care and Protection of Children) Act, 2000, Section 17 Detention Content ion Detention till presentation before magistrate Juvenile, yet not produced before juvenile Court Petitioner not arrested, not detained Preventive action taken Over righting in same places Under Section 17, Chapter VII of Cr PC not applicable. There is sufficient material on record to substantiate allegation of the petitioners that all the three petitioners were brought to the Police Station together and were detained till they were produced before the Executive Magistrate. Respondent No. 6, who is the Executive Magistrate, in his affidavit reply has mentioned that petitioners were brought to the office an d were produced before Naib Tahsildar for initiating preventive action against them under Section 107 of Criminal Procedure Code. Notices were served on the delinquents under Section 111 of Criminal Procedure Code and as the petitioners accepted the allegations, they were asked to execute interim bond. These facts are disputed by the petitioners. Undisputedly petitioner No. 3 was dealt along with other petitioners though in view of the provisions of Section 17 of the Juvenile Justice Act, provisions of Chapter VIII of the Criminal Procedure Code are not applicable to the Juveniles. Therefore Naib Tahsildar could not have entertained proceedings under Section 107, Criminal Procedure Code against petitioner No. 3. It was duty of the Naib Tahsildar to ascertain age of the accused as all of them were students and upon getting information, he should have given direction for producing the minor before the Juvenile Court. The lapse on the part of Naib Tahsildar in proceeding against a minor cannot be condoned. The conduct of respondents has resulted in incarceration of the Juvenile, which is prohibited by law, therefore, respondents are liable to pay compensation to petitioner No. 3.
Criminal Procedure Code, 1973 - Section 149 Power to arrest with police officers Power to be used carefully Personal liberty should not be violated Negligence on part of police officers leads to disastrous effect Police officer must follow restraint. Respondent Nos. 3 to 5 and PSI being Police Officers are invested with powers of arrest. This power is to be exercised with due care and caution. Precaution must always be taken by a Police Officer to ensure that a citizen is not deprived of his personal liberty without proper justification. No arrest can be made merely be cause it is lawful for the Police Officer to do so. Existence of power to arrest is one thing and the justification for the exercise of it is quite another. Police Officer must be able to justify the arrest apart from his power to do so. Negligence on the part of a Police Officer leads to disastrous effect and adversely affects the citizen concerned. Similarly, casualness shown in detaining a person in lockup can cause incalculable harm to the said person. Therefore, it is necessary for the Police Officer to show desirable restraint and to be careful in exercise of the power of arrest. Omission to exercise due care and caution in entails serious consequences. In this behalf reference can be made to the ruling of the Supreme Court in the matter of (D.K. Basu v. State of West Bengal, reported in 1997 Bom CR (Cri) 459 : 1997 Cri LJ 743. In this case the Apex Court has observed in para 42 of the report that "the Court" where the infringement of the fundamental right of a citizen is established, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience.
S. P. KUKDAY, J.
( 1 ) RULE. Rule made returnable forthwith by consent of parties. Learned APP waives service for respondents. This is one more example of violation of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.
( 2 ) THE petitioners are students having their residence in Kuccharwata locality of old Jalna. On 27-3-2005 while they were going to the mosque for offering prayers at about 8. 00 p. m. , respondent No. 4 and 5 arrested and brought them to Kadim Police Station. At the police station, petitioner No. 1 was maltreated at the instance of P. 1. Chandansingh Rajput. No information regarding their arrest was given to the petitioners. On getting information regarding incarceration of the petitioners, their parents had come to the police station, but they were asked to come to Tahsil office on the next day with necessary documents for furnishing surety such as 7/12 extracts. All the three petitioners were searched. Hundred-rupee note found with petitioner No. 3 was taken away and was not returned. The petitioners were then detained in police lockup for the night and were taken to Tahsil office on the next day. In the absence of Naib Tahsildar Mrs. Sangita Watave, Clerk Mr. Suradkar, completed the formalities regarding service of show cause notice and demanding an interim bond for Rs. 5,000/- with one surety in the like amount, but copies of the documents were not furnished to the petitioners. They had to apply for the certified copies and received the copies on 1-4-2005 on payment of Rs. 20/ -. Petitioners were incarcerated though they had not committed any offence. On account of the detention in police lockup, petitioners suffered trauma, humiliation and damage to their reputation. The incarceration was in violation of the right of petitioners to personal liberty. In view of this high-handed attitude on the part of respondent Nos. 3, 4 and 5, petitioner No. 1, who was to appear at the examination on next day i. e. on 29th, could not concentrate on his studies and could not perform well at the examination. Not only that petitioner No. 3 is a minor, therefore, his detention is in contravention of section 17 of the Juvenile justice (Care and Protection of Children) Act, 2000, (hereinafter to be referred to as Juvenile Justice Act.) As the petitioners have suffered mental agony and loss of reputation, they are entitled to compensation from the respondents, who are responsible for their wrongful confinement in the police lockup and unwarranted prosecution. On these grounds, petitioners claim compensation of Rs. 25,000/- from respondents.
( 3 ) SO far as allegations regarding the detention in lockup are concerned, affidavit in reply is filed on behalf of respondent Nos. 1 to 5 by P. I. Chandansingh Rajput. According to these respondents, respondent Nos. 4 and 5 found petitioners 1 and 2 teasing girls belonging to Hindu community in kuccharwata locality and brought them to the police station. Shivjayanti was being celebrated on the next day, in this background, there was possibility of conflict between the two communities on account of this incident. Parents of the girls were not willing to file complaint against the boys in respect of offence punishable under section 509 of Indian Penal Code, therefore it was decided to take preventive action against the petitioners. Parents and relatives of petitioners had come to the police station and were informed that the petitioners were arrested under section 151 of Criminal Procedure Code and would be produced before the Executive Magistrate on the next day for taking preventive action under section 107 of Criminal Procedure Code. Petitioner No. 3 was not arrested and was not detained in lockup. However, preventive action is taken against him because during the enquiry, it was found that he had also indulged in teasing young girls. Had any proof been produced to show that he is a minor, preventive action under section 107 of Criminal Procedure Cod
