Arrest in bailable offences is permissible under exceptional circumstances; failure to inform accused of bail rights does not render arrest illegal.

JUDGMENT

Vinay Joshi, J.

RULE. Rule made returnable forthwith. Heard finally with the consent of both sides.

2. The petitioners are seeking compensation on account of illegal arrest, consequential relief of initiating Departmental Enquiry against respondent no.3 Police Inspector and an action for contempt of Court.

3. The facts in brief are that, one Khushal Bansod has lodged report on 26.09.2022 on the basis of which crime has been registered with the Kurkheda Police Station, District Gadchiroli vide First Information Report No.136 of 2022 for the offence punishable under Sections 325, 294, 143, 147, 148, 149 of the Indian Penal Code, and Section 135 of the Maharashtra Police Act. It is the informant’s case that a Contract of collection of garbage was alloted to him. Petitioner no.1 Nasir Hashmi and Petitioner no.3 Vinod Meshram were dissatisfied by said allotment of contract and on said count, used to pick up quarrel. On 25.09.2022, around 10.00 p.m., while the informant was near panshop, the petitioners (accused) accosted him and abused in filthy language. Accused also assaulted him by means of stick, fists blows and kicks, and therefore, the report.

4. On the basis of said report, the Police have registered aforesaid crime on 26.09.2022 around 3.46 a.m. All accused were arrested on the very day i.e. on 26.09.2022 around 6.10 a.m. and produced before the concerned Judicial Magistrate First Class within 24 hours with the remand report. Respondent no.3 the Investigation Officer sought police custody for the purpose of investigation. The learned Magistrate was pleased to remand the petitioners (accused) into the police custody till the next date i.e. 27.09.2022.

5. In the aforesaid background, the petitioners’ would contend that all the offences are bailable, therefore the police could not have arrested them. In other words, the arrest in connection with bailable offences is totally illegal. Secondly, it is canvassed that in contravention of the guidelines issued by the Supreme Court in case of Arnesh Kumar vs. State of Bihar and anr. (2014) 8 SCC 273, arrest has been effected, without issuing mandatory notice under Section 41-A of the Code of Criminal Procedure (for short ‘the CrPC).

6. The learned Counsel for the petitioners would submit that in case of bailable offences, the accused has a statutory right to get released on bail. The Investigating Officer did not inform the accused about the right to bail, but on the contrary sought the police custody remand. It is submitted that the learned Magistrate in ignorance of mandate of Section 436 of the CrPC has remanded them into the police custody, which is illegal. It is the petitioners’ contention that since the offences are punishable up-to 7 years of imprisonment that too of bailable nature, there was no necessity of arrest. In case of Arnesh Kumar vs. State of Bihar (supra) directions have been issued about the necessity and procedure for arrest, which according to the petitioners, has been flouted. For aforesaid reasons the petitioners claim to grant compensation for violation of fundamental right to liberty by effecting illegal arrest.

7. Learned Counsel Shri Vyas for the respondent no.3 Investigating Officer, would submit that there is no legal embargo in arresting the accused in bailable offences. Only after the arrest, the accused has a right to get released on bail, which they did not exercise. It is submitted that provisions of Section 41 of the CrPC did not preclude the arrest, in offences which may attract punishment to the extent of 7 years of imprisonment, however the rider contained in Clause 41(1)(b) of the CrPC has to be followed.

8. On facts, it is submitted that the petitioners (accused) after arrest, have not opted to exercise their right to get released on bail, and thus, the Investigating Officer cannot be blamed. It is submitted that, having regard to the nature of accusation the Investigating Officer has formed an opinion that there is necessity to arrest. The P