Depriving A Person Of Liberty Cannot Be Left To The Whims Of The Police Officer; Bombay HC Fines Cop Rs.1 Lakh For Illegal Detention [Read Judgment]

The division bench of Justice ZA Haq and Justice MG Giratkar held that the said detention was illegal and quashed the action taken by the Tahsildar and Taluka Magistrate under Chapter VIII of the Code of Criminal Procedure.

Both the detainees filed a petition before the High Court alleging that Inspector Dhananjaya Sayare and Constable Walmik Burile acted in a high-handed manner and sought an enquiry against the two for usurping upon their fundamental right guaranteed under Article 21 of the constitution.

Case Background

According to the petitioners, disputes about trusteeship of Shri Mirannath Maharaj Deosthan, Deoli were going on before the authorities under the Maharashtra Public Trusts Act. Counterclaims were made by the rival groups and there was dispute whether Kishore Futane (petitioner no. 1) was Secretary of the executive committee of the public trust or not.

Thus, on December 25, 2013, one Suresh Rokde lodged a report with Deoli Police Station against Kishore stating that he had come to the temple on December 24 at about 7 pm and had asked for the keys of cupboard where the documents of the trust were kept, and when the informant told him that the keys were with Pundlik Deoraoji Ughade – President of the trust, Kishore abused the informant and threatened to break open the cupboard and take away the papers. After enquiry, the police authorities found that the offences complained of were non-cognizable and note of it was taken accordingly.

On January 19, 2014, another report was lodged against the petitioners stating that on 19/01/2014 at about 11:30 am, Suresh Rokde informed him on phone that the "Ex-Secretary" (petitioner no. 1) had been to the temple and had opened the lock. The respondent no. 7 further stated in the report that Pundlik Ughade, President of the trust had also called him and had asked him to go to Mandir, and when the informant went to Mandir, both the petitioners were sitting in the office examining certain papers / documents and when the informant tried to stop them from examining the papers, they abused him and threatened him to assault. Again, enquiry was undertaken and as it was found that cognizable offence was not made out, note to that effect was taken by the police authorities.

However, action under Section 151 (1) of the Code of Criminal Procedure was taken against the petitioners, and they were detained at 5 am on February 5, 2014 at the Deoli police station and said detention continued till 12 noon when, the petitioners were taken to the Executive Magistrate who directed release of the petitioners on furnishing of bond/surety.

Judgement

Court passed orders on November 3, 2014 and on November 10, /2014 directing the Additional Public Prosecutor TA Mirza to produce the original record. APP failed to produce the record till November 29, thereafter the tahsildar was directed to produce the record and proceedings at the time of hearing. The tahsildar filed an affidavit showing his inability to produce the record and proceedings stating that it was not traceable. Hence, on December 10, 2019, the Collector, Wardha was directed to cause an enquiry in the matter and submit a report.

Accordingly, the Collector, Wardha submitted report pointing out that the record is not traceable and as per the last entry of the record, it was in the custody of Smt. Usha Yete, Naib Tahsildar who retired from service and has later expired in September 2019.

Court noted-

"We find that there has been serious lapse on the part of the respondent nos. 1 to 6 in not producing the record and proceedings inspite of the orders passed by this Court on 03/11/2014 and 10/11/2014. At that time, there was no impediment in producing the record and proceedings. In these facts, we are constrained to draw adverse inference against the respondents."

The bench further noted-

"To say the least, the justification given for taking action as per Section 151 (1) of the Code of Criminal Procedure is misleading and an attempt to cover up the illegal act. Against the petitioner no. 2, there was only one report i.e. dated 19/01/2014. Moreover, the respondent no. 5 himself found that the first information report could not be registered for cognizable offence on the basis of that complaint. Though there were two reports against the petitioner no. 1 at the relevant time, again the respondent no. 5 (Dhananjaya) after causing an enquiry found that the first information report for cognizable offence could not be registered against the petitioner no. 1 also.

Moreover, registration of two reports against the petitioner no. 1 or registration of one report against the petitioner no. 2 for non-cognizable offence cannot give cause for taking preventive action under Section 151 (1) of the Code of Criminal Procedure against the petitioners."

After Constable Walmik stated that he had no other option but to follow the orders of his superior, Court imposed of Rs.2 lakh (Rs.1 lakh each to both petitioners payable by Dhananjaya Sayare along with cost towards litigation of Rs.10,000 each).

The bench observed-

"Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of the police officer, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officers / authorities.

In the present case, the respondent no. 5 has not pointed out anything from the record and has also not stated in the reply filed by him that he was having knowledge that the petitioners were designing to commit any cognizable offence."