"State Needs To Fix Responsibility"; Bombay HC Directs State To Pay Rs.50 K Each As Compensation To 2 Men Detained Illegally

Division bench of Justice TV Nalawade and Justice MG Sewlikar of the Aurangabad bench were hearing a criminal writ petition filed by Arun Tagad and Shailendra Tagad seeking compensation of Rs. 5 lakh each for the said illegal detention.

Case Background

On January 28, 2013, FIR was registered at Beed Rural Police Station against the petitioners at the instance of a 35-year-old lady for the offences punishable under Sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code was registered. On January 30, both the petitioners were arrested by police of Rural Police Station, Beed and produced before the Judicial Magistrate First Class, Beed on the same day.

The Judicial Magistrate First Class granted bail to both the petitioners and they were released when they furnished personal bond and surety bond. According to the petitioners that when they came out of the campus of Court, the same police arrested them immediately and they were taken before the Executive Magistrate, Beed.

On the same day both the petitioners were produced before the Executive Magistrate, Beed and the Executive Magistrate made an order against the petitioners and directed them to give interim bond with two solvent sureties of Rs.25,000 each. Petitioners moved an application before the Executive Magistrate and requested to permit them to give cash security in place of surety bond and they submitted that they had applied for getting a solvency certificate, but such certificate generally is not issued immediately. The Executive Magistrate did not allow this application and adjourned the matter to the next date. As a result, petitioners were kept in custody for 6 days from January 30, 2013.

Submissions

According to the petitioner's lawyer Advocate NR Thorat contended that there are mala fides in the action taken by police and the Executive Magistrate also did not pass necessary orders and due to that they were illegally detained in jail from January 30, 2013 for six days.

Petitioners are not habitual offenders, in fact Shailendra Tagad was serving the military at the relevant time and Arun Tagad was a respected person and resident of the same locality as the complainant and so detention was not necessarily in the chapter case. The arrest and detention were illegal and there is violation of the fundamental rights of the petitioners, Adv Thorat submitted.

In the reply filed by respondent police head constable, who was investigating the aforesaid crime, it is contended that the Deputy Superintendent of Police, Beed Division had directed this police station to take preventive measures against the petitioners. The said direction was given on wireless.

According to police head constable Bansi Jaibhaye, when the petitioners were released on bail by Judicial Magistrate First Class, he asked the petitioners to appear before the Executive Magistrate on the same day and he did not arrest them. On that day, a report was submitted to the Executive Magistrate who directed the petitioners to give a bond of Rs.25,000 with two solvent sureties. However, the petitioners failed to comply with this order and the matter was adjourned to February 5, 2013 by the Executive Magistrate, the said constable contended.

Judgment

After hearing the submissions, the Court noted that the records show that the police station requested the Executive Magistrate to start chapter proceeding under Section 107 of CrPC and obtain interim bond from them under Section 116(3) of CrPC. The bench said-

"The provision of Section 107(1) of the Code of Criminal Procedure shows that there are conditions for starting the proceeding under this section….

In the present matter, the record shows that there was only a police report of aforesaid police head constable before the Executive Magistrate and that was in respect of registration of aforesaid crime. The report does not show that any document including a copy of aforesaid FIR was supplied to the Executive Magistrate. On this report itself, the Executive Magistrate made the order and directed the Petitioners to execute interim bonds under Section 116(3) of the Code of Criminal Procedure of aforesaid nature. The record produced and the reply of the police head constable does not show that before passing such order, any order of show cause as required under Section 111 of the Code of Criminal Procedure was made."

Moreover, the bench observed that the police head constable's submission that he had only directed the petitioners to appear before the Executive Magistrate when they were released on bail by the Judicial Magistrate First Class appears to be incorrect and false. Court said-

"The aforesaid order of interim bond made by the Executive Magistrate shows that the petitioners were brought before the Executive Magistrate by police head constable Jaibhaye. This circumstance supports the contention of the petitioners that immediately after their release on bail by the Judicial Magistrate First Class, they were taken in custody by police and they were produced before the Executive Magistrate. Though there is such clear probability, there is no record to show their formal arrest under any provision of law after they were released by the Judicial Magistrate First Class in aforesaid crime."

Finally, the bench noted that the said order of the Executive Magistrate was illegal-

"The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs.25,000 each for each opponent. These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction."

Directing the State to pay Rs.50,000 each to the petitioners, the Court observed that said compensation has to be paid within 45 days, failing which the amount will carry interest at the rate of 8% per annum. Court also said that it was open for the STate to recover the same from the erring officers and the Executive Magistrate.