MURLIDHAR ATMARAM WANI Vs. D D SHANKARWAR

JUDGEMENT

(1.) The present writ petition is filed with prayer for issuance of directions to respondent Nos. 4 to 6 to take deterrent action against respondent No. 1, 2 and 3 i.e. the Inspector of Police, Shri D.D. Shankarwar, Dharangaon police station, S.N. Pardeshi, (Police Head Constable), Dharangaon Police Station and Mr. Vitthal Sonwane, Tahsildar, Dharangaon. It is further prayed that the respondent Nos. 1, 2 and 3 be directed to pay compensation to the petitioner for their illegal act of harassing and torturing the petitioner. Thus this petition is filed with twofold prayers. This petition was heard by this court at admission state on 15.12.2003, when "Rule" was issued. Now, matter is taken up for final hearing.

(2.) It is the case of the petitioner that he retired as driver from Municipal Council, Dharangaon. He has subscribed a cable connection. One Jagannath Bansilal Shirsath, Aged 22 years, on 13.4.2003 at about 6.30 p.m. went on the roof of the petitioner 's house with an intention to commit theft of cable wire. The petitioner caught him red handed. The said person, being young and strong than the petitioner, as the petitioner is old and handicapped by right hand and was not able to resist the said person, said person succeeded in escaping from the said place. It is further case of the petitioner that he went to police station to lodge the F.I.R. of the said incident, however, the concerned Officer on duty told him to give written complaint. On the next day i.e. on 14.4.2003, at about 8.30 a.m. the petitioner went to the police station and gave a written complaint. It is further case of the petitioner that without reading the said complaint, same was torn into pieces and no cognizance of said complaint was taken by the police Officer, who was on duty. According to the petitioner, the respondent No.1 i.e. Shankarwar was also present at the relevant time. It is further case of the petitioner that instead of registering his complaint, the police registered C.R. No. 165 of 2003 with Dharangaon police station against the petitioner for assaulting Jagannath Bansilal Shirsath. It is the case of the petitioner that the respondent No.1 demanded Rs.15,000/- for releasing the petitioner. It is further case of the petitioner that his elder son Raju came to see him, however, he was also detained in police station alongwith the petitioner. Respondent No.1 released said Raju only after Rs.3000/- was paid to respondent No.1. It is further case of the petitioner that since he was not able to pay Rs.15,000/- to respondent No.1 on 14.4.2003, Chapter case was filed against the petitioner on the same day. The Police Officer wrote to the Tahsildar, Dharangaon to take action against the present petitioner under Section 107 of Cr.P.C. According to the petitioner, Tahsildar i.e. Executive Magistrate came to the police station and passed an order for magisterial custody in the police station itself and ordered "if not furnished bail, to be kept in custody till 16.4.2003." It is further case of the petitioner that though respondent No.3 had granted bail he himself refused to accept bail furnished by the petitioner and the petitioner was kept in custody till 16.4.2003. On 16.4.2003, respondent No.3 accepted the bail instead of exercising his discretion of releasing on "Security for Good behaviour," According to the petitioner, his detention from 14.4.2003 to 16.4.2003 was illegal and Executive Magistrate has no power to order to furnish the bail bond and detain the petitioner in custody till 16.4.2003. The petitioner applied for certified copies of the record pertaining to his arrest. According to the petitioner, respondent No.3 i.e. Tahsildar came to know that the petitioner has applied for certified copy of the record pertaining to his arrest. A police constable came to call the petitioner to police station on 24.4.2003. The petitioner went to the police station. Respondent No.1 abused and threatened the petitioner and warned him not to think of initiating any legal action either against him or the Tahsildar. The petitioner refuted this and therefore, he was arrested and was produced before the Magistrate 's Court Erandol on 25.4.2003. It is further case of the petitioner that on 30.5.2003, he filed representation with the Higher authorities of the police department. It is further case of the petitioner that on 25.6.2003 in the night at about 9.00 p.m. one police constable came to his house. He informed the petitioner that the respondent No.1 had called him to the police station on next day morning. They asked him to supply the copy of the document, they refused to supply the copy and he was made to sign. On 26.6.2003, when the petitioner went to police station, respondent No.1 abused him and threatened him of dire consequence. On 26.6.2003, the petitioner filed a representation to respondent No.1 for taking action for obtaining his signature deceptively. According to the petitioner, the action of the respondent authorities is high handed and therefore, strict action is required to be taken against the concerned respondents and the petitioner is entitled for compensation.

(3.) We have heard learned counsel for the petitioner and learned A.P.P. for the respondent authorities at great length. The affidavit in reply is filed on behalf of respondent No.2 and also on behalf of respondent No.3. Since the respondent No.1 is made party by name, he has also filed his separate reply. It appears that the main grievance of the petitioner is that he was illegally detained by the respondent No. 2 without any authority of law. According to the counsel for the petitioner, in a chapter case the Executive Magistrate cannot direct to furnish the bail or has no power to direct arrest of the petitioner. According to the counsel for the petitioner, the petitioner was illegally detained in jail from 14.4.2003 to 16.4.2003. It is further argued that Section 41 of Cr.P.C. does not empower the police Officer to arrest any person not accused of cognizable case. Section 42 of Cr.P.C. contemplates situation when power of arrest can be exercised by the police Officer, in case of non cognizable offence. The said power is only to ascertain the name and address of the accused. The power comes to an end the moment his credentials are ascertained. It is further submitted that the police had no power to investigate into the matter without any order from the Magistrate. Section 155 of Cr.P.C. specifically provided that no police Officer can investigate the matter without an order from the Magistrate. The affidavit filed by respondent No.1 to the effect that he tried to settle the matter between the petitioner and informant shows that he has indulged into and barged to inquire into the matter, absolutely forbidden to him by the dictum of Section 155. It is further submitted that Executive Magistrate has no power under Section 107 of Cr.P.C. to order detention in custody. He has power to issue show cause notice demanding why (after enquiry) accused should not be made to execute a bond for keeping peace for one year. According to the counsel for the petitioner, the interim bond as provided under Section 116(3) of Cr.P.C. can be demanded from the person who is being proceeded under Section 108, 109 and 110 of Cr.P.C. i.e. those disseminating seditious matter, suspected persons, habitual offenders respectively. According to the counsel for the petitioner the case which was lodged against the petitioner was non cognizable case which police ought not to have investigated without express permission of the Magistrate. The sum and substance of the argument advanced by counsel for the petitioner is that in the first instance the police have no power to investigate into the matter unless the permission is sought from the Magistrate and secondly the Executive Magistrate has no power to direct detention of the petitioner while invoking Section 107 of Cr.P.C. Therefore, the counsel for the petitioner submits that this petition deserves to be allowed.