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2012 Supreme(Bom) 2381
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & S.S. SHINDE, JJ.
Shri Subhash Namdev Desai & Ors.
Vs.
The State of Maharashtra & Ors.
Criminal Writ Petition No.1555 of 2011
Decided On : 21st December, 2012
Shri ANAND S. PATIL for the Petitioners
Shri A.S. GADKARI, APP for the State
Shri ROHAN R. SONAWANE for Respondent Nos.2 and 3
Shri VINOD JADHAV for Respondent Nos.5, 6 and 7
Headnote:CRIMINAL PROCEDURE CODE, 1973 - Sections 41-B, 107, 111 and 151 - Arrest under Section 151.
Where no order was passed by Executive Magistrate under Section 111 for initiating proceedings under Section 107 of Code therefore arrest of petitioner under Section 151 of Code is illegal. - In the present case, order under Section 111 of the said Code was not passed which is a condition precedent for initiating proceedings under Section 107 of the said Code. Therefore, further action of taking bond from the petitioners in the said proceedings is rendered illegal. In fact, the order of release of the petitioners on bail has been passed by the Executive Magistrate on the proposal of the second respondent submitted for initiating the proceedings. Thus, the proceeding under Section 107 of the said Code is completely illegal.
It is not recorded in the affidavit that the second respondent was satisfied that the commission of cognizable offence cannot be prevented without arresting the petitioners. That satisfaction has not be recorded by the Inspector of Police who has filed the affidavit who ultimately order their release. Hence, the arrest under Section 151 was not at all warranted. The arrest under Section 151 is illegal.
Petitioners were arrested without complying with the directions issued by the Apex Court in the case of D.K. Basu. Without recording satisfaction that the commission of cognizable offence cannot be prevented without arresting the petitioners, they were illegally arrested under Section 151 of the said Code. Thirdly, the petitioners were compelled t o give bonds in chapter proceedings, the initiation of which itself was bad. The petitioner were thus illegally detained for more than 8 hours in the police lock up. Only one non-cognizable case was registered against the petitioners. Therefore compensation of Rs. 20,000/- each prayer for by them in reasonable and proper.
CRIMINAL PROCEDURE CODE, 1973 - Section 151 - Taking of Preventive action under.
Preventive action under Section 151 of Code, can be taken only if it appears to Police Officer that commission of cognizance offence cannot be otherwise prevented. - For taking preventive action under Section 151 of the said Code, mere knowledge by the Police Officer of a design to commit cognizable offence is not sufficient. Preventive action can be taken only if it appears to such officers that the commission of offence cannot be otherwise prevented.
A.S. OKA, J : While adjourning the Petition on 19th January 2012, this Court made it clear that the Petition will be taken up for final disposal at the admission stage.
2. The Fourth Respondent filed a complaint on 7th May 2011 with Bhudargad Taluka Police Station against the Petitioners alleging that the Petitioners have been assaulting and abusing her with a view to harass her and her family members. On the basis of the complaint, a non-cognizable offence under Section 323, 504 read with Section 34 of the Indian Penal Code was registered against the Petitioners by the said Police Station. On 9th May 2012, the Second Respondent who was ASI attached to the said Police Station arrested the Petitioners at 12.35. Though the offences registered against them were non-cognizable and bailable, it was shown that the Petitioners were arrested by way of preventive action under Section 151 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). It is alleged that the Second and Third Respondents (Constables attached to Bhudargadh Taluka Police Station) demanded illegal gratification from the Petitioners. On their refusal, they filed a chapter case bearing No.95 of 2011 against the Petitioners. It is contended that the Petitioners were not produced before the learned Judicial Magistrate within a period of 24 hours from their arrest and they were produced before the learned Executive Magistrate on 10th May 2012 at about 17.40. Thus, it is alleged that the Petitioners were produced nearly 29 hours after their arrest. It is alleged that the guidelines issued by the Apex Court in the case of D.K. Basu v. State of West Bengal (1997)1 SCC 4161 have been breached by the Police. It is alleged that in any case, the Fourth Petitioner was falsely implicated as on the date of the incident he was in Pune. As a result of arrest of the Petitioners, they have been defamed in the Society. It is alleged that the marriage of the Petitioner No.1's daughter was settled. Due to his arrest, the marriage could not be solemnized. Prayer is made for quashing the chapter proceedings and for directing the Respondents to pay a sum of Rs.20,000/- each to the Petitioners by way of compensation for mental and physical harassment on account of illegal detention in breach of the guidelines issued by the Apex Court in the case of D.K. Basu (supra).
3. The Second and Third Respondents have filed a reply denying the averments made in the Petition. They have contended that Section 151 of the said Code was applied under the orders of Shri R.B. Shede, the Police Inspector attached to Bhudargad Taluka Police Station who was an officer superior to the Second and Third Respondents and that he was the officer in-charge of the Police Station. It is alleged that it was revealed from the statements recorded of the Fifth and Sixth Respondents that the Petitioners were defaming the Respondent No.4 and hence chapter proceedings were initiated. It is alleged that at 21.05, the Petitioners were released from the custody on a guarantee of their presence before the learned Magistrate given by one Shri Kolavkar and upon the orders of Shri R.B. Shede, Police Inspector of Bhudargad Police Station. It is contended that the proceedings of chapter case were sent to the learned Magistrate on 9th May 2012 and the Petitioners remained present before the learned Executive Magistrate on their own and were released on bail. All other adverse allegations have been denied. It is contended that their record has been fairly clean. The learned APP has fairly assisted the Court by producing the entire record including the original Station Diary, original register of preventive action and the original register showing compliance with the directions issued by the Apex Court in the case of D.K. Basu (supra). He pointed out the relevant entries in the station diary including the entry made at 21.05 on 9th May 2011 in station diary recording that on the basis of the order of th
