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2019 Supreme(Bom) 966
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
T.V. NALAWADE, K.K. SONAWANE, JJ.
Rajesh - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Writ Petition No. 906 of 2018
Decided On : 11-07-2019
N.S. Ghanekar, Adv., M.M. Nerlikar, Adv.
Headnote:
Constitution of India,1950 – Article 21,22,226 and 227 – Indian Penal Code,1860 – Section 323,504,506 r/w 34,2(c),218,219,220,221,223,411,414,41(1)(b) and 50-A – Criminal Procedure Code,1973 – Section 41,167 and 57 – Causing hurt – Insulting - Petitioners were arrested registered with Police Station in the evening time for offences - Report is given by a lady aged about 26 years and she is a businesswoman - In the F.I.R. allegations are made mainly against son of petitioner - It is contended by informant that she had come in contact with said one when she was attending tuition of Accounts subject - It is her contention that acquaintance then developed into love and they had an affair - It is the contention of informant that when she was alone in her house, said one came there and requested to allow him to have sexual intercourse with her - It is her contention that she refused to do so and then said one promised to marry - It is contended that due to such promise she gave consent and from that time they had physical relationship - It is contended that after first incident, on many occasions due to such promise, she had allowed to have sexual intercourse in her house - It is contended that on one occasion she was called to residential place of said one as no other members were at home and there also said one had taken sexual intercourse with her by giving promise of marriage - Informant that husband of petitioner (sister of said one ) committed suicide - It is contended that a crime was registered in respect of that incident and due to that all the petitioners had virtually absconded for many days - When bail was granted to petitioners they appeared and after that said one again started contacting her - On many occasions he took sexual intercourse with her - It is the case of the informant that as he was refusing to marry with her, she contacted petitioner , mother and sister - It is her case that she was called to residential place by petitioner and there threat of life was given to her by present petitioner - It is contended that she was asked by petitioner to abort child - She approached police to give report - Report was given when the last incident had taken place - Whether it is bailable and proper procedure is followed by police – Held, court are compelled to say so as liberty which is basically splendour of beauty of life and bliss of growth, cannot be allowed to be frozen in such a contrived winter - That would tantamount to comedising of liberty which is the strongest pillar of democracy - As there was such order against the petitioners it was open to them and it was also necessary for them to challenge that order - Otherwise, defence could have been taken by the State that such order was there and inquiry into the factual aspects will be involved in the present matter - This Court holds that the matter cannot be dismissed for laches - Aforesaid circumstances show that there was apparent malice - In such a case much more amount could have been given as compensation to petitioners considering their occupation - However, the petitioners have claimed total compensation of Rs. Five lakhs - This Court holds that such amount needs to be given by way of compensation to all the petitioners together - In the result, following order - This Court holds that there is no need to make order in respect of the Judicial Magistrate - Petition is allowed.
JUDGMENT :
T.V. Nalawade, J.
1. Rule, rule made returnable forthwith. By consent, heard both the sides for final disposal.
2. The proceeding is filed under Articles 226 and 227 of the Constitution of India for compensation of Rs.5 lakh and also for relief of action against respondent No.2, a police officer. Allegations of illegal arrest and illegal detention are made by the petitioners who were practising Advocates at the relevant time. Compensation is sought from the State Government, respondent No.1 and the police officer, who made arrest and obtained police custody remand against the petitioners.
3. The petitioners were arrested in CR No.I-276 of 2014 registered with Kotwali Police Station Ahmednagar on 26-10-2014 in the evening time for offences punishable under sections 376, 504, 506, 34 of Indian Penal Code. The report is given by a lady aged about 26 years and she is a businesswoman. In the F.I.R. allegations are made mainly against Abhijit, son of petitioner Nos.1 and 2. He was also practising Advocate at the relevant time. It is contended by the informant that she had come in contact with Abhijit in the year 2007 when she was attending tuition of Accounts subject in Ahmednagar. It is her contention that acquaintance then developed into love and from the years 2007 to 2013 they had an affair.
4. It is the contention of the informant that in the year 2013 when she was alone in her house, Abhijit came there and requested to allow him to have sexual intercourse with her. It is her contention that she refused to do so and then Abhijit promised to marry. It is contended that due to such promise she gave consent and from that time they had physical relationship. It is contended that after the first incident, on many occasions due to such promise, she had allowed Abhijit to have sexual intercourse in her house. It is contended that on one occasion she was called to the residential place of Abhijit by Abhijit as no other members were at home and there also Abhijit had taken sexual intercourse with her by giving promise of marriage.
5. It is contention of the informant that in the year 2013 husband of petitioner No.3 (sister of Abhijit) committed suicide. It is contended that a crime was registered in respect of that incident and due to that all the petitioners had virtually absconded for many days. It is contended that in January 2014 when bail was granted to the petitioners they appeared and after that Abhijit again started contacting her. It is contended that after 25th February 2014 on many occasions Abhijit took sexual intercourse with her.
6. It is contention of the informant that she is in the business of running tourist centre and Abhijit had come with her to Tirupati. It is her contention that on that occasion Abhijit and she had stayed in a room of a guest house from Tirupati for 2 days and there also they had sexual relationship.
7. It is contention of the informant that when she became pregnant and when she informed about it to Abhijit, Abhijit asked her to abort the child. It is her contention that she requested Abhijit to marry with her but he refused to marry. It is contended that even after that day, Abhijit had taken sexual intercourse with her.
8. It is the case of the informant that as Abhijit was refusing to marry with her, she contacted petitioner Nos.2 and 3, mother and sister of Abhijit. It is her case that she was called to the residential place by petitioner Nos.2 and 3 and there threat of life was given to her by present petitioner Nos.2 and 3. It is contended that she was asked by petitioner Nos.2 and 3 to abort the child. It is contended that due to such threat of petitioner Nos.2 and 3 she disclosed everything to her father. It is contended that on 12-10-2014 petitioner Nos.1 and 2 went to the office of her father and there they gave threat of life to her father and asked to see that the informant aborts the child. It is contended that on her mobile phone threat was given by petitioner No.1 to her father and
