Durgalal Vijay vs Government of M. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(MP) 225

2001 (2) JLJ 114
S.S. Jha, J.
Durgalal Vijay v. Government of M.P. and others
WP. No. 559 of 1997; Decided on 31.3.2001.

Advocates:
J.P. Gupta with Tapan Trivedi for petitioner; KN. Gupta for respondent No 1;
R.A. Roman for respondent No.2; N.K Modi for respondent No.3;
D.K Katare for respondent No.4.

Headnote:(1) Criminal P.C., 1898 -- Ss. 344 and 61 -- Criminal P.C., 1973 -- Ss. 57 and 167 -- remand of accused -- there is a drastic change in power of Magistrate between old and new Code -- now there is no inherent power of remand.
        Under the old Code, the Magistrate .was given the power under section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence. However, under the new Code, no police officer can detain a person in custody, arrest without a warrant for a period longer than 24 hours as mentioned in Section 57 of the new Code corresponding to section 61 of the old Code. Section 167 occurring in Chapter XII bearing the heading "Information to the Police and their powers to investigate" the same has been in Chapter XIV of the old Code and has made some drastic departure. The Court will have no inherent power of remand of an accused to any custody, unless the power is conferred by law. AIR 1975 SC 1465 followed. [Para 8
        (2) Constitution of India -- Art. 22 -- actual time of arrest -- is necessary to judge whether or not provisions have been complied with. AIR 1957 All. 189 relied on. [Para 9
        (3) Constitution of India -- Art 226 -- petitioner illegally detained -damages can be awarded by the Hon ‘ble High Court AIR 1983 SC 1086 followed. [Para 10
        (4) Constitution of India -- Art 226-- arrest made with mischievous and malicious intent -- victim should be awarded suitable monetary compensation in appropriate cases. AIR 1986 SC 494 followed. [Para 11
        (5) Constitution of India -- Art. 226 n abuse of the process of Court by petitioning party -- no compensation can be awarded. (1995) Supp. (2) SCC 388 followed. [Para 12
        (6) Criminal P.C., 1973 -- S. 111-- notice under -- not enough to be read to accused -- copy of the same should be supplied to enable him to file reply-accused should also be released on bail. [Para 16
        (7) Criminal P.C., 1973 -- Ss. 151 and 111 n accused arrested for substantive offences under Penal Code and bailed out -- no occasion arises to proceed against him under S. 151 and issue notice under S. 111.
        It is apparent that once the petitioner was released on bail for substantive offence by the competent Court, there was no occasion for producing him before the Sub-Divisional Magistrate under section 151 CrPC. Even otherwise, when it was within the knowledge of the Executive Magistrate that the petitioner has been arrested for substantive offences there was no occasion for him to proceed under section 151, CrPC or to issue notice u/s 111, CrPC. [Para 22
        (8) Criminal P.C., 1973 -- S. 154 -- police already registered substantive offence and arrested the accused -- on similar facts no case under can be registered. [Para 24
        (9) Penal Code, 1860 -- S. 466 -- Sub-Divisional Magistrate manipulating order sheets and other documents of the case before him -- is guilty for the offence under. [Paras 24 & 25
        (10) Constitution of India -- Art. 226 -- petitioner detained illegally -awarded damages of Rs. 25,000/- -- ordered to be recovered from Sub-Divisional magistrate who was guilty of illegal detention. [Para 26
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       ¼6½ naM çfØ;k lafgrk] 1973&/kkjk 111&lwpuk&vfHkqDr dks i<+dj lquk;k tkuk i;kZIr ugha&og mÙkj Qkby dj ldus esa leFkZ gks blds fy, mldh çfr çnk; dh tkuk pkfg,&vfHkqDr dks tekur ij NksM+k Hkh tkuk pkfg,A ¿iSjk 16
       ¼7½ naM çfØ;k lafgrk] 1973&/kkjk 151 rFkk 111&vfHkqDr naM lafgrk ds v/khu eq[; vijk/kkssa ds fy, fxj¶rkj rFkk tekur ij&mlds fo#) /kkjk 151 ds v/khu dk;Zokgh dj /kkjk 111 ds v/khu lwpuk tkjh djus dh vko‘;drk ughaA
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ORDER

S.S. Jha -- 1. Petitioner has filed this petition challenging his unlawful detention and for quashing the criminal proceedings initiated against him by respondent No.2. Petitioner has also claimed damages to the tune of Rs. one lac.

2. Petitioner has submitted that he alongwith his wife and two sons had purchased separate pieces of land which were adjacent to each other in Gandhi Chowk, Sheopur Kalan through registered deed of sale. Thereafter, construction was made on the aforesaid plots in the year 1984-85. On 27.1.1997 Respondent No.3 Shri M.K. Agrawal was posted as Additional Collector at Sheopur Kalan, which was at that time part of District Morena.

Respondent No. 2 S.K. Sharma was holding the post of Sub-Divisional Magistrate and respondent No. 4 was town Inspector of Sheopur Kalan. According to the petitioner, respondent No. 3 had come to the spot and manhandled him which caused injuries to the petitioner. Thereafter, the' petitioner was taken to the police Station, Sheopur Kalan by respondents 2 to 4 and was detained in illegal custody. According to the petitioner, a report was lodged by Shri M.K. Agrawal at the Police Station Sheopur Kalan that he was manhandled and beaten by the petitioner. On the report, a case for the offences u/Ss. 333, 353, 506-B and 294 IPC was registered against the petitioner. Though there was no charge that Shri M.K. Agrawal has received grievous injuries yet offences u/Ss. 333 and 506-B were registered against the petitioner with an intention to detain him in custody. Petitioner was arrested on 27.1.1997 in the evening at about 6.00 O'clock. His application for bail was allowed by Additional Chief Judicial Magistrate on 28.1.1997 vide Order Annexure P/1. Petitioner furnished the bail. Petitioner submitted that instead of releasing him on bail after furnishing the bail, he was not released till 30.1.1997 and was detained in illegal custody and for detaining him in illegal custody, his arrest was shown u/S. 15l, CrPC.

3. Counsel for the petitioner submitted that once the petitioner was arrested for substantive offence on 27.1.1997 vide Sanha No. 1325 at the Police Station, then he could not be arrested for the offence u/s 151, CrPC at 6.40 p.m. Once the petitioner was arrested for the substantive offence, there was no occasion to detain him under Section 151, CrPC. Petitioner then moved an application for bail before the Sub-Divisional Magistrate, respondent No.2. Respondent No.2 has written 'rejected' on the application itself and he also wrote an order-sheet in detail rejecting the bail application. The order sheet was signed by Shri R.R. Singh and Shri Sakil Qureshi, Advocates who had moved the bail application on behalf of the petitioner. After rejection of the application, the petitioner was sent to judicial lock up. Certified copy of the order passed by the Sub-Divisional Magistrate was not supplied to the petitioner in-spite of the application. Petitioner then filed a revision on 28.1.1997 itself against the said order of rejection before the Additional Sessions Judge, Sheopur Kalan, alleging therein that certified copy of the order is not being supplied. However, when the records reached the Court of Additional Sessions Judge, it was noticed by the petitioner that order-sheet rejecting the bail application has been substituted by another order sheet wherein it is mentioned that the petitioner was directed to furnish security in the sum of Rs. 20,000/- but since the security was not furnished by the petitioner he was sent to jail. Petitioner submitted that he being a leading lawyer of the town and possessing lot of immovable properties, there was no reason why he should refuse to furnish bail. The learned Additional Sessions Judge in the revision directed release of the petitioner on furnishing bail of Rs. 1,000 only. In compliance of the bail order passed by the Additional Sessions Judge, the Sub-Divisional Magistrate did not send the release order on 29.1.1997 and instead sent th

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2001 Supreme(MP) 225

2001 (2) JLJ 114S.S. Jha, J.Durgalal Vijay v. Government of M.P. and othersWP. No. 559 of 1997; Decided on 31.3.2001.

Cases Referred (3)

2001 (2) JLJ 114
S.S. Jha, J.
Durgalal Vijay v. Government of M.P. and others
WP. No. 559 of 1997; Decided on 31.3.2001.