VIMLADEVI TIWARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition by the mother of Jitendra Tiwari, since deceased, alleges illegal detention of the deceased by the third respondent - Special Executive Magistrate - and mother also claims damages from the respondents for the un-natural death of Jitendra Tiwari at the hands of the respondents. While admitting this petition on 27th March, 1998, we have referred to the facts in detail and passed a reasoned order for issuance of rule. In the circumstances, we think it unnecessary to repeat the said facts. The order dated 27th March, 1998 may therefore, be treated as part of this order.

(2.) PURSUANT to the direction given by us while issuing rule on 27th March, 1998, further affidavits have been filed before us. The concerned Executive Magistrate namely respondent No. Shri. A. S. Deshbhartar, Assistant Commissioner of Police has filed his affidavit dated 16th April, 1998. He has also produced affidavit of Police Head Constable Shri. R. B. More sworn on 10th April, 1998. We have heard Smt. Behere for the petitioner, Shri. R. B. Patil, A. P. P. for respondent Nos. 1 and 2 and Shri P. M. Pradhan who is appointed as Special Counsel for respondent No. 3. In short, the grievance of the petitioner - mother of the deceased is about the illegal manner in which the orders under section 111 and 116 of the Code of Criminal Procedure were passed resulting in the unauthorised detention of her son Jitendra Datta Tiwari since deceased. The petitioners second grievance is about the unnatural circumstances in which her son Jitendra has died on 25th December, 1997.

(3.) AS indicated in our earlier order, Jitendra was arrested at about 11. 45 a. m. on 5th December, 1997 at Castle Mill area, Gokul Nagar falling in the jurisdiction of Naupada Police Station in Thane. On 6th December, 1997 itself head constable More attached to Naupada Police Station made a report on the basis of which an order under section 111 of the Code was passed by the third respondent. The time at which the report was made and the time at which the order was passed is not clear. Pursuant to the order passed under section 111 of the Code, Jitendra was produced before the third respondent on 6th December, 1997 itself, though the timing on this is also not clear. As required by section 112 of the Code, the order under section 111 was read over to him and it is alleged that the substance thereof was explained to him. He is alleged to have admitted that he was indulging in small thefts for his survival and immediately, an order has been passed on 6th December, 1997 itself calling upon said Jitendra Tiwari to furnish a bond for good behaviour in the sum of Rs. 3,000/- for a period of six months and since the matter was adjourned to 18th December, 1997, for final disposal, Jitendra Tiwari was ordered to be kept in the Magisterial custody till 18th December, 1997.