Bombay HC Quashes Proclamation Order Against Police Naik Accused Of Raping Lady Police Naik, Says At Least 30 Days Notice Needed For Court Appearance

Justice Sarang V Kotwal observed that the accused has to be given at least 30 days to appear from the date of publication of the proclamation, as per section 82 of the CrPC.

“All the above three orders have taken this provision into consideration and in all these orders it is mentioned that the period cannot be less than 30 days. In the present case, the order is passed on 29.11.2023 and the applicant was directed to appear on 04.12.2023. Therefore, I am inclined to take a similar view which is taken in all the aforesaid orders”, the court held.

The applicant, Deepak Sitaram Modhe, challenged the order dated November 29, 2023 issued by JMFC, Pune. The order issued of a proclamation under Section 82 of the CrPC against the applicant, who is the original accused in a case registered at Khadak police station, Pune.

The complainant, a Female Police Naik, filed a case against Deepak Modhe, a Police Naik at Khadak Police Station. They worked together from 2016 to 2022, and despite the complainant's refusal, Modhe allegedly persisted with marriage proposals. During the 2020 Covid-19 lockdown, he allegedly drugged and sexually assaulted the complainant, blackmailing her with explicit photos and videos.

Modhe allegedly continued unnatural relations, used derogatory language, and threatened to expose her. The complainant alleged that he coerced her into divorcing her husband, made thefts from her house on October 20, 2023, and threatened her with physical harm and death.

Modhe is accused under sections 307, 376(2)(n), 377, 392, 506(2), 504 and 323 of the IPC, section 3 and 25 of the Arms Act and under section 37 read with section 135 of the Maharashtra Police Act. His anticipatory bail application was rejected by the trial court and the Bombay High Court. The JMFC issued a non-bailable warrant against him on November 24, 2023.

Advocate Aashish Satpute for the applicant contested the proclamation order on the grounds that it directed the accused to appear before the court in a timeframe less than the mandatory 30 days stipulated by Section 82 of the CrPC. Satpute cited three previous orders from different single-judge benches of the Bombay High Court, in his support.

Additional Public Prosecutor Sangita Shinde acknowledged the validity of the cited orders and suggested that if the current order was set aside, the investigating agency could be given the opportunity to pursue this remedy afresh.

The court noted that the impugned order mentioned the issuance of an arrest warrant against the applicant on November 24, 2023, with the subsequent proclamation issued on November 29, 2023 directing him to appear 4 days later on December 04, 2023. The judge pointed out that Section 82(1) of the CrPC mandates a specific time not less than 30 days from the date of publishing the proclamation.

In light of this legal position, the court set aside the impugned order, emphasizing that the court could initiate a fresh process for issuing a proclamation in accordance with the statutory requirements. The court granted the investigating agency the liberty to take appropriate steps to secure the presence of the applicant in accordance with the law.

Case no. – Criminal Application No. 1647 of 2023

Case Title – Deepak Sitaram Modhe v. State of Maharashtra