MADHUKAR JAIRAM NASIKKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application filed by the Petitioner Madhukar Jairam Naiskkar and the petition is for releasing him on bail as he has been ordered to remain in Police custody upto 19th November, 1976.

(2.) The facts of the case are that I cannot imagine a case where a person could be harassed in any worse manner. On 26th of June, 1976 this Petitioner was found somewhere near the V.T. Station, Bombay, with a badge on his chest reading "Nirbhai Bano" and it is also the allegation of the police that he was shouting some slogans but no slogans has been mentioned any where by the police at any time till today. Even today I have not been told by the Public Prosecutor as to what slogans were uttered by the accused. Having taken him into custody on 26 June, 1976, the V.T. Railway Station Officer stated investigation and took the accused to his residence at Thana. On the same day, i.e. on 26th June, 1976, at Thana 30 issues of Sadhana, a magazine which is a weekly and some effects were recovered by the police. As far as the leaflets are concerned there is no importance whatsoever and, therefore, I do not wish to mention anything about the leaflets. On 27th June, 1976, the accused was placed before Dadar Court and a remand application was made. In that remand application as it has been submitted by the Counsel who appeared in the Dadar Court as well as in the Thana Court where his final bail application has been rejected, it was submitted that all the three things, viz., that the accused was found wearing a badge Nirbhai Bhano. that he was raising slogans without mentioning what slogans were raised and the fact that the literature including 30 issues of Sadhana were recovered from his house on 26th June, 1976, were mentioned. The learned Metropolitan Magistrate, Dadar, to facilitate the investigation granted the remand application to detain the accused for 14 days in the first instance. It appears that there was a second remand application thereafter when again he was ask to be detained either in Police Custody or in Jail Custody. On 23rd July, 1976 it appears that the Dadar Court after having considered all the remand application made before it, released the accused on bail. Thereafter till 4-11-1976 one after the other applicants for adjournments were being made. That was between 26-6-1976 to 4-11-1976. The investigations were carried on and the accused had to remain in Police custody or Jail custody for more than 23 days. It appears that though the Criminal Procedure Code lays down under section 167 a mandatory provision that if any person is arrested and to be prosecuted for any of the criminal offences, a charge-sheet must be filed within 60 days, if the charge-sheet is not filed, as a matter of right the accused is entitled to be released on bail. It is admitted around that no charge-sheet was filed by the Inspector investigating his case for whatever he found regarding the activities of the accused on 26th of June, 1976 including the activities which in his opinion were antisocial for the possession of the literature at his house. Having not been able to file any charge-sheet before the Dadar Court, in my opinion, a subterfuge was employed and on 8-11-1976 instead of filing a charge-sheet before the Court because 4th November, 1976 was the last date of remand, the Inspector of Police V.T. has lodged a complaint with Navpada Police Station, Thana and on the complaint of the Inspector of the V.T. Police Station, the Navpada Police Station, Thana arrested the accused on 10th of November, 1976. That the date given of the complaint by the V.T. Inspector of Police by the learned Counsel for the accused is 8th November, 1976, I have been told by Mr. Damle when I am dictating this order on instructions of the Police Officer, who is present behind him, that the complaint was lodged on 2nd November, 1976. Following up this complaint. I do not know whether fully being aware of what had happened between 26th June, 1976 to 2nd November, 1976 or not, the Navpada Police Station arrested the accused on 10th November, 1976 and produced him on 11th November, 1976 in the Court of the Judicial Magistrate, First Class, Court No. 2, at Thana. It appears that the accused has been produced before the Thana Court for the offence having been committed by violating Rule 43 sub-rule (1) read with Rule 36 of the Defence of India Rules, that is the same thing viz. possession of 30 issues of Sadhana which were discovered by the Police on 26th June, 1976, and which fact was mentioned in the remand applications from time to time form 26th June, 1976 to 4th November, 1976. On 11th November, 1976 the matter was adjourned to 12th November, 1976. On 12th November, 1976, which was a Friday, the matter was again adjourned to 13th November, 1976. It appears that the learned Judicial Magistrate, First Class, II Court, Thana, wanted the Counsel for the accused to produce the records of what remand applications were made in Dadar Court and in order to satisfy himself that form the remand applications it was so clear that in the complaint before the Dadar Court the question of the accused being in possession of 30 issues of Sadhana was mentioned. 13th and 14th November, 1976 being Saturday and Sunday, the Counsel appearing on behalf of the accused Mr. Misra, who has appeared before me and who has been appearing for the accused in the Dadar Court as well as Thana Court, has informed me that he intimated to the Court that it was being Saturday and Sunday a certified copy of the remand application could not be obtained but assured the Court that he himself having appeared, there is a clear mention of finding of 30 issues of Sadhana in the remand application filed by the V. T. Police Inspector before the Dadar Court and that the 30 issues were found on 26th of June, 1976, i.e., about five months before the date when this application before Thana Court was being considered. The learned Judicial Magistrate, First Class, having been satisfied with submission of the Council for the accused released the accused on bail on 14th November, 1976 only for a day and on 15th November, 1976 the certified copies of the remand applications were produced before the learned Judicial Magistrate, First Class, Thana. The application for bail was opposed by the Inspector of Police who appeared before the Thana Court and accepting the contentions raised by the police that the arrest made by the Navpada Police Station was in respect of the offence of possession of 30 issue or some of them, which were objectionable, by the accused in his houses at Thana. It was an offence committed within the jurisdiction of the Judicial Magistrate, First Class, Thana, having accepted this contention of the Inspector of Police, refused to grant bail on 15th of November, 1976 and remanded the accused to police custody till 19th November, 1976.

(3.) I am constrained to observe that if a person has been arrested on 26th of June, 1976 and a responsible Police Officer, who produces him before the Court, viz., the Metropolitan Magistrate Court Dadar, for antisocial activities or anti-Government activities has specifically found that 30 issue of Sadhana were found at his residence and which fact may be, in his opinion, to support his contention, viz., that the accused was really acting in an antisocial or anti-Government manner. If a responsible officer of the Police Station after having filed repeated remand application before the same Court did not consider that it was not possible for him to prosecute the accused for the possession of 30 issues of Sadhana and if it took five months for him to decide that , I do not wish to comment more, but it only discloses the inefficiency of that Police Officer in my opinion who wants the accused having been arrested for antisocial activities being produced before the Court after the search of his house where 30 issues of Sadhana were detected on the same day and if these facts are relied upon for prosecuting the accuse before the Judicial Magistrate, First Class, Thana, on the same facts because the accused has been released by the Dadar Court on bail and because the Police Officer is unable to comply with the provisions of the Criminal Procedure Code to file charge sheet within the time prescribed, which is the mandatory time prescribed by the Criminal Procedure Code, to use much method of information another Police Station so that he may be absolved from the responsibility of filing a charge sheet altogether and the accused may be prosecuted in another Court when one Metropolitan Magistrate of this City has released him on bail after considering the fact that a man who was wearing the badge Nirbhai Bano was found in possession of 30 issues of Sadhana.