RAFIQ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE learned Counsel appearing for the petitioners submitted that on 20th August, 2005, there was quarrel between the petitioners and one Chhotu Hasan Gowli and another person by name Shaikh Kasam Hasan Gowli near Mamaji Talkies in Bhusawal. The petitioners went to Police Station for lodging complaint against the said persons. However, the Police did not register the case. It is submitted that on 23rd August, 2005, the respondents No. 3 took the petitioners to the Police Station and made them to sit for 4 hours without informing them anything as to why they were brought to the police station. Later on, the respondent No. 3 asked the petitioners to pay Rs. 10,000/- stating that he would not register any case against Ganga Kanhaiya and Burhan Buddu but, would initiate proceedings under Section 107 of Cr. P.C., and would set them free. It is further submitted that the arrest of the petitioners on 23rd August, 2005 was without following the procedure. It is further submitted that though the petitioners were ready to furnish sureties, they were unnecessarily kept in arrest till 27th August, 2005. It is submitted that their representations to the various authorities including the Superintendent of Police, Jalgaon and the Commissioner of Police were not considered, no action had been taken on the said representations. Therefore, the learned Counsel for the petitioners submitted that the petition deserves to be allowed.

(2.) THE learned APP appearing for the respondents, relying upon the three affidavits-in-reply filed by the Police Officers, submitted that there was no illegal detention as alleged by the petitioners. It is submitted that CR No. 211/2005 was registered against the petitioners for the offences punishable under Sections 323 and 504 of IPC with Bhusawal City Police Station on 20th August, 2005. The petitioners were arrested for the offence under Section 41(2) of Cr. P.C., and the case was registered bearing No. 74/2005 and 75/2005 for the offence under Section 110(e) and (g) of Cr. P.C. The petitioners were produced before the Special Executive Magistrate, LCB, Jalgaon. It is submitted that since the petitioners did not submit the solvency certificate till 27th August, 2005, they were not released. It is submitted that the Executive Magistrate acted in his jurisdiction and since no solvent surety was furnished, the respondent No. 4 ordered detention of the petitioners. It is therefore, submitted that in the light of the affidavits-in-reply filed by the authorities, the petition is devoid of any merits and the same may be dismissed.

(3.) UPON careful perusal of the provisions of Sections 107 onwards including section 110 of the code, it is clear that there is no provision to arrest a person against whom chapter proceedings are initiated. Admittedly, the petitioners were arrested on 23rd August, 2005 and they were produced before the Magistrate on 24th August, 2005. It is difficult to understand as to how the Police Officers invoked the provisions of section 41(2) of the Cr. P.C., to cause arrest of the petitioners. Such an exercise of powers, in our opinion, was absolutely unwarranted in the facts of the present case. Once the chapter case is registered, as contemplated under Section 111, the concerned person against whom such proceedings are initiated, has to execute bond of good behaviour. The provisions of section 111 of the Code reads, thus: