SUBHASH NAMDEV DESAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) While adjourning the Petition on 19th January 2012, this Court made it clear that the Petition will be taken up for final disposal at the admission stage. The Fourth Respondent filed a complaint on 7th May 2011 with Bhudargad Taluka Police Station against the Petitioners alleging that the Petitioners have been assaulting and abusing her with a view to harass her and her family members. On the basis of the complaint, a non-cognizable offence under Section 323, 504 read with Section 34 of the Indian Penal Code was registered against the Petitioners by the said Police Station. On 9th May 2012, the Second Respondent who was ASI attached to the said Police Station arrested the Petitioners at 12.35. Though the offences registered against them were non-cognizable and bailable, it was shown that the Petitioners were arrested by way of preventive action under Section 151 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). It is alleged that the Second and Third Respondents (Constables attached to Bhudargadh Taluka Police Station) demanded illegal gratification from the Petitioners. On their refusal, they filed a chapter case bearing No. 95 of 2011 against the Petitioners. It is contended that the Petitioners were not produced before the learned Judicial Magistrate within a period of 24 hours from their arrest and they were produced before the learned Executive Magistrate on 10th May 2012 at about 17.40. Thus, it is alleged that the Petitioners were produced nearly 29 hours after their arrest. It is alleged that the guidelines issued by the Apex Court in the case of D.K. Basu v. State of West Bengal, 1997 1 SCC 416 have been breached by the Police. It is alleged that in any case, the Fourth Petitioner was falsely implicated as on the date of the incident he was in Pune. As a result of arrest of the Petitioners, they have been defamed in the Society. It is alleged that the marriage of the Petitioner No. 1's daughter was settled. Due to his arrest, the marriage could not be solemnized. Prayer is made for quashing the chapter proceedings and for directing the Respondents to pay a sum of Rs. 20,000/- each to the Petitioners by way of compensation for mental and physical harassment on account of illegal detention in breach of the guidelines issued by the Apex Court in the case of D.K. Basu .

(2.) The Second and Third Respondents have filed a reply denying the averments made in the Petition. They have contended that Section 151 of the said Code was applied under the orders of Shri R.B. Shede, the Police Inspector attached to Bhudargad Taluka Police Station who was an officer superior to the Second and Third Respondents and that he was the officer in-charge of the Police Station. It is alleged that it was revealed from the statements recorded of the Fifth and Sixth Respondents that the Petitioners were defaming the Respondent No. 4 and hence chapter proceedings were initiated. It is alleged that at 21.05, the Petitioners were released from the custody on a guarantee of their presence before the learned Magistrate given by one Shri Kolavkar and upon the orders of Shri R.B. Shede, Police Inspector of Bhudargad Police Station. It is contended that the proceedings of chapter case were sent to the learned Magistrate on 9th May 2012 and the Petitioners remained present before the learned Executive Magistrate on their own and were released on bail. All other adverse allegations have been denied. It is contended that their record has been fairly clean. The learned APP has fairly assisted the Court by producing the entire record including the original Station Diary, original register of preventive action and the original register showing compliance with the directions issued by the Apex Court in the case of D.K. Basu . He pointed out the relevant entries in the station diary including the entry made at 21.05 on 9th May 2011 in station diary recording that on the basis of the order of the Inspector of Police Shri Shede, the Petitioners were released by informing them not to create law and order situation and not to commit breach of peace. He submitted that in view of the said entry in the station diary, it cannot be said that the detention of the Petitioners continued and they were produced before the learned Executive Magistrate on 10th May 2011 by the Police. He has also produced for perusal of the Court the file of the chapter proceedings. He has also placed on record photocopies of the relevant extract of the station diary, lock up register, register maintained to show compliance with the directions issued by the Apex Court in the case of D.K. Basu and file of the proceedings of chapter case.

(3.) The learned counsel appearing for the Petitioners submitted that there was no warrant to preventively arrest the Petitioners under Section 151 of the said Code. He submitted that the entry of the release at 21.05 in the station diary is false and incorrect and the order of the learned Executive Magistrate shows that the Petitioners were produced before him at 5.40 p.m. on 10th May 2011 which clearly proves the case that till that time, the Petitioners were in custody. He urged that while arresting the Petitioners, the guidelines issued by the Apex Court in the case of D.K. Basu have not been complied with and hence, there is a gross violation of Articles 21 and 22 of the Constitution of India. He urged that the chapter proceedings were completely mala fide and the entire proceedings are otherwise illegal as there is no order passed by the learned Executive Magistrate under Section 111 of the said Code. He urged that only on account of registration of one non-cognizable offence, not only that the Petitioners were detained under Section 151 of the said Code, but chapter proceedings were also illegally initiated. He, therefore, submitted that this is a fit case to award compensation to the Petitioners apart from quashing the chapter proceedings. Learned counsel appearing for the Second and Third Respondents pointed out that they have acted as per the instructions of the superior Police Officer Shri Shede and in fact, as seen from the station diary, at 21.05 on 9th May 2011, the Petitioners were released under the orders of Shri Shede, the Police Inspector. He urged that the substantial compliance with the directions issued by the Apex Court in the case of D.K. Basu has been made by maintaining a register and making necessary entries in the register in that behalf. He urged that the Memorandum of Arrest may not have been drawn, but all the necessary requisites have been complied with while making entries in the said register including obtaining the signatures of the witnesses etc. He urged that the allegations against the Petitioners are as regards the assault and causing harassment to a minor girl. He urged that as far as chapter proceedings are concerned, except for forwarding the proposal, no role has been played by the Police and in fact while releasing the Petitioners at 21.05, statement of one Shri Kolavkar was recorded who assured the presence of the Petitioners before the learned Executive Magistrate. He relied upon a decision of the Apex Court in the case of Ahmed Noormohmed Bhatii v. State of Gujarat and Others, 2005 AIR(SC) 2115. He submitted that no illegality has been committed by the Second and Third Respondents. The learned counsel appearing for the Fourth to Sixth Respondents supported the submissions of the learned counsel appearing for the Second and Third Respondents and urged that no illegalities have been committed.