Thursday, 22 October 2015

Whether accused can claim compensation for illegal detention before high court when it is not granted by session court?

The learned Additional Public Prosecutor has raised an
objection that the petitioner had filed a Criminal Revision
Application in the Court of Additional Sessions Judge, Kopergaon,

Dist. Ahmednagar, wherein he has also prayed for compensation
on account of his illegal detention, however, the learned
Additional Sessions Judge has refused to award any such
compensation. According to the learned Additional Public
Prosecutor, the petitioner, therefore, could not have sought the
same relief in the present petition. There appears no substance
in the objection so raised. We have gone through the order
passed by the Sessions Court, while disposing of the Criminal
Revision application filed by the present petitioner, the sessions
Court has declined to consider the request of granting any
compensation, stating that it does not fall within its jurisdiction.
The order so passed, therefore, may not come in the way of
petitioner to claim compensation in the present writ petition.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 275 OF 2006
Balasaheb s/o Sadanand Bhagat @ Bhakta,

VERSUS
 The State of Maharashtra

CORAM : S.S. SHINDE &
 P.R. BORA, JJ.

 Judgment pronounced on : 14th August, 2014.
Citation;2015 CRLJ(NOC)470 BOM

1. Petition heard finally. The petitioner has filed the present
petition, claiming compensation of Rs. 1,00,000/- (Rs. One lakh
only) and seeking direction against the respondent Nos. 1 & 2 to
take stern action against respondent No. 3, who according to the
petitioner is responsible for his illegal detention in police custody,
and his false implication in chapter proceedings.
2. The petitioner claims himself to be an active worker of
Bharatiya Janta Party. It is his contention that the chapter
proceeding No. 68/2005 was falsely initiated against him at the
instance of respondent No. 3, on the basis of a single crime
registered against him. It is his further contention that the said
sole crime registered against him was also absolutely false, and
he was no way involved in the said crime. It is his further
contention that in the said chapter proceeding, though he was
arrested at 10.00 am on 23-02-2005, he was not immediately
produced before the Special Executive Magistrate and was
illegally detained for more than twenty four hours, and was
produced before the Magistrate at 3.30 pm on 24-02-2005. It is
his grievance that respondent No. 3 violated the guide-lines laid
down in the case of D.K. Basu Vs. State of West Bengal, (1997
AIR SCW, 233), at the time of his arrest. It is his specific
contention that no information regarding his arrest was given to
any of his family members. It is his specific grievance that he was

illegally detained and all of his Constitutional rights were violated.
The petitioner has further alleged that while in custody of the
police, he was tortured by respondent Nos. 3 & 4. He was inhumanely
treated by the police, as if he was a habitual criminal
offender. It is alleged that the photos of the petitioner were
obtained by giving slate in his hand and while taking the petitioner
to Ahmednagar he was paraded in Village Kolhar. The petitioner
has further alleged that respondent Nos. 3 & 4, only with the
intention to harass the petitioner pressed for the direction against
the petitioner that he may be subjected to furnish bond in the
amount of Rs. 1,25,000/-(Rs. One Lakh twenty five thousand
only), knowing well that if such direction is given, it may not be
possible for the petitioner to comply the same immediately, and
consequently, he will remain in jail till he furnishes the bond in the
said amount. The petitioner has alleged that all the actions taken
by respondent Nos. 3 & 4 were with ulterior motive, high handed
and arbitrary. The petitioner has alleged that the petitioner was
unnecessarily arrested to tarnish his image in the society. The
petitioner has, therefore, claimed the compensation of Rs.
1,00,000/- (Rs. One lakh only) from the respondents and has also
prayed for an inquiry into the illegal acts allegedly committed by
respondent Nos. 3 & 4.

3. On behalf of respondent Nos. 3 & 4, respondent No. 3 has
filed affidavit-in-reply denying the allegations raised in the petition.
Respondent No. 3 & 4 have taken a plea that considering the
anti-social activities of the petitioner, it had become necessary for
them to take some preventive action, and the same was taken
against the petitioner under the orders of superior police officers,
and while taking such action, the same has been taken within the
four corners of law and strictly following the procedure laid down
for the same. Respondent Nos. 3 & 4 have further contended that
the petitioner was arrested at 3.30 PM on 23-02-2005, under
Section 41 (2) of the Code of Criminal Procedure, and thereafter
within twenty four hours was produced before the Special
Executive Magistrate. It has also been contended that wife of the
petitioner was present, when petitioner was produced before the
Special Executive Magistrate. Respondents have justified their
action in the affidavit-in-reply filed by them.
4. The petitioner has filed a rejoinder to the affidavit-in-reply
filed by respondent Nos. 3 & 4, denying the fact stated in the said
affidavit-in-reply, in regard to the presence of his wife at the time
of his arrest by respondent No. 3. The Petitioner has filed an
affidavit of Adv. Bhaskar Tulshiram Pathare, wherein he has
stated that the wife of the petitioner was not present on 24-02-

2005, when the petitioner was produced before the Special
Executive Magistrate, Ahmednagar.
5. Shri N.B. Suryawanshi, the learned counsel appearing for
the petitioner made elaborate submissions. The learned counsel
pointed out that at the time when chapter proceedings came to be
initiated against the petitioner, only one case . arising out of crime
No. 10/2005, was pending against him. The learned counsel
submitted that even in the said case, the petitioner was falsely
implicated. The learned counsel invited our attention to the copy
of Panchanama dated 04-02-2005 filed along with the petition and
marked as Exhibit C, and submitted that Crime No. 1/2005 was
registered at Police Station Rahata, Camp at Loni for the offences
punishable under the Bombay Prohibition & Gambling Act, and in
the said crime the petitioner had acted as a panch witness in
drawing the search and seizure panchanama. The learned
counsel submitted that the persons against whom crime No.
1/2005 was registered had agitated on 19-02-2005 in front of the
Police Chowki, Kolhar, and they had put one cloth banner outside
the said police chowki and they had sat on hunger strike. The
learned counsel submitted that when the petitioner had acted as a
panch witness in the crime against the said agitators, and when
the said agitators were belonging to the rival political group, there
was no reason for the present petitioner to sit along with them on

hunger strike. The learned counsel submitted that a total false
case was prepared and it was demonstrated that the petitioner
fled away from the spot and hence he could not be arrested on
the spot. The learned counsel submitted that in such
circumstances Crime No. 10/2005 for the offences under Section
143 of the Indian Penal Code and under Section 37(1) read with
Section 135 of the Bombay Police Act, was registered at Police
Station, Loni. The learned counsel submitted that for the alleged
act of displaying the cloth banner at the out side of Police Chowki,
an offence under Section 3 of the Maharashtra Dis-figuration
Property (Prohibition) Act, 1985 was also added in the said crime.
Shri Suryawanshi further submitted that even if it is presumed that
there was some involvement of the petitioner in the said crime, it
was the only offence at his discredit. The learned counsel
submitted that on the basis of the sole crime the proceedings
came to be initiated against the present petitioner under the
provisions of Section 110 (e) (g) of the Code of Criminal
Procedure and the petitioner was arrested by invoking powers
under Section 41(2) of the Code of Criminal Procedure by
respondent Nos. 3 & 4.
6. The learned counsel submitted that on his arrest on
23-02-2005 at about 11.00 AM, the petitioner along with the other
arrested persons was sent for medical examination. The learned

counsel invited our attention to the document filed on record by
him, evidencing the fact that he was referred to the Medical
Officer on 23-02-2005 for his medical examination. The learned
counsel further submitted that it was quite possible for respondent
No. 3 to produce the petitioner before the Special Executive
Magistrate on the same day, however, intentionally he was not
produced and was illegally detained. The learned counsel
submitted that on 24-02-2005, the petitioner was produced before
the Special Executive Magistrate. The learned counsel, bringing
to our notice the submission made by respondent No. 3 in his
affidavit-in-reply submitted that a false picture was attempted to
be created before the Special Executive Magistrate that the
petitioner was a dangerous person and involved in anti-social
activities. The learned counsel submitted that with malafide
intention the prayer was made in the written application by
respondent No. 3, requesting the Special Executive Magistrate to
pass an order calling upon the petitioner to furnish the bond in the
amount of Rs. 1,25,000/- (Rs. One lakh twenty five thousand
only), knowing well that if such an order is passed it may not be
fulfilled and petitioner will have to remain behind the bar till
furnishing the bond in the said amount.
7. Shri N.B. Suryawanshi submitted that even the Special
Executive Magistrate without ascertaining the nature of the

offence pending against the petitioner, implicitly relying on the
submissions made before him by respondent Nos. 3 & 4, directed
the petitioner to furnish the bond of such an heavy amount of Rs.
1,00,000/- (Rs. One lakh only). The learned counsel submitted
that asking to furnish the bond of such a huge amount was
impermissible. The learned counsel submitted that the facts
stated by the petitioner in his petition that he was arrested at
10.00 AM on 23-02-2005, and further that his photos were
obtained at the Police Station by giving slate in his hand, and
further that while taking the petitioner to Ahmednagar, he was
deliberately paraded in Kolhar village have not been specifically
denied by the respondents. The learned counsel submitted that
respondent Nos. 3 & 4, though were well aware that the petitioner
was the District Secretary of a National Political Party, and further
that he was not involved in any unlawful activity, and further that
there were no criminal antecedents against him, merely because
the petitioner had made some complaints against respondent No.
3, out of vengeance the chapter proceeding was initiated against
him and in the said proceeding, he was illegally detained. The
learned counsel further submitted that before filing of the present
petition, the petitioner has time to time sent the representations to
the higher police officers putting forth his grievance before them
as to how he was illegally arrested, detained and was harassed by

respondent Nos. 3 & 4. The copies of these representations are
filed on record by the petitioner. The learned counsel submitted
that no proper attention was given to the grievance so made by
the petitioner even by the senior police officers, and he was
informed that there was nothing illegal in the actions taken by
respondent Nos. 3 & 4. The learned counsel submitted that
considering the facts involved in the matter, the petitioner
deserves to be awarded the compensation as claimed and inquiry
needs to be directed against respondent Nos. 3 & 4 for the illegal
acts committed by them.
8. The learned Additional Public Prosecutor controverted the
submissions made on behalf of the petitioner. Referring to the
affidavit-in-reply filed by respondent Nos. 3 & 4, he submitted that
the reply so filed is enough to meet with all objections raised by
the petitioner. The learned Additional Public Prosecutor submitted
that respondent No. 3 had acted in parameters of law and under
the directions of his superior officers. The learned A.P.P.
submitted that on the information available against the petitioner
that he was likely to commit and cause breach of peace in the
society, the preventive action under Section 110 (e) (g) of the
Code of Criminal Procedure was taken against him. The learned
A.P.P. submitted that no illegality was committed either in

arresting the petitioner or producing him before the Special
Executive Magistrate. He further submitted that as has been
contended in the affidavit-in-reply, the petitioner was arrested on
23-02-2005 at 3.30 PM and was produced before the Special
Executive Magistrate at 12.30 PM on 24-02-2005 i.e. within the
period of twenty four hours. The learned A.P.P. submitted that
petition is devoid of any merit and it be rejected.
9. The learned A.P.P. brought to our notice that petitioner had
filed criminal complaint against respondent Nos. 3 & 4 in the Court
of Judicial Magistrate, First Class, Rahata for the offences
punishable under Section 166, 177, 219, 341, 342, 500 read with
34 of the Indian Penal Code raising the same contentions which
are raised by him in the present petition. The learned A.P.P.
pointed out that the petitioner has unconditionally withdrawn the
said complaint. It was the contention of the learned A.P.P. that
on the same cause of action and for the same reliefs, the
petitioner could not have filed the Criminal Writ Petition. The
learned A.P.P. further submitted that the prayer made in the
present petition seeking compensation of Rs. 1,00,000/- (Rs. One
lakh only) was made by the petitioner in the Criminal Revision
Application No. 10/2005, filed by him in the Court of Additional
Sessions Judge, Kopergaon. However, while deciding the said

petition, learned Additional Sessions Judge, Kopergaon has
rightly declined to entertain the said prayer. The learned A.P.P.
submitted that during the pendency of said revision application,
the petitioner has filed present petition and also sought
compensation in the present petition also. According to learned
A.P.P., since the Criminal Revision which was filed earlier in the
point of time, and when the prayer for compensation has been
turned down by the competent Court, the petitioner has lost right
to claim the same relief before this Court. The learned A.P.P.
further submitted that the petitioner had made the grievance with
respondent No. 2 herein and his representations were taken care
of and it was informed to the petitioner that there was nothing
illegal in the actions taken by respondent Nos. 3 & 4.
10. We have carefully considered the submissions made on
behalf of the petitioner as well as the respondents, and also
perused the documents filed on record. First we would prefer to
deal with the objections raised about the maintainability of the
present petition.
11. The learned Additional Public Prosecutor has raised an
objection that the petitioner had filed a Criminal Revision
Application in the Court of Additional Sessions Judge, Kopergaon,

Dist. Ahmednagar, wherein he has also prayed for compensation
on account of his illegal detention, however, the learned
Additional Sessions Judge has refused to award any such
compensation. According to the learned Additional Public
Prosecutor, the petitioner, therefore, could not have sought the
same relief in the present petition. There appears no substance
in the objection so raised. We have gone through the order
passed by the Sessions Court, while disposing of the Criminal
Revision application filed by the present petitioner, the sessions
Court has declined to consider the request of granting any
compensation, stating that it does not fall within its jurisdiction.
The order so passed, therefore, may not come in the way of
petitioner to claim compensation in the present writ petition.
12. The another objection has been raised by the learned
Additional Public Prosecutor that, petitioner had filed a criminal
case against respondent No. 3 & 4 in the court of Judicial
Magistrate, First Class, Rahata, for the offences punishable under
Sections 166, 177, 301, 343, 500, read with 34 of the Indian Penal
Code, however, the same was unconditionally withdrawn by the
petitioner. The learned Additional Public Prosecutor submitted
that in the circumstances, making the same allegations and
seeking the same action no second petition could have been filed

by the petitioner. The learned Additional Public Prosecutor further
submitted that the request so made in the present writ petition,
seeking action against respondent Nos. 3 & 4, therefore, is liable
to be rejected. We are however, not impressed with this
argument also. Since the complaint so filed by the petitioner was
not decided on merits and was simply withdrawn by the petitioner,
he was not precluded from filing the present writ petition, seeking
action against respondent Nos. 3 & 4 for illegally detaining him
and for filing a false chapter proceeding against him.
13. There is no dispute that the chapter proceedings came to be
initiated against the petitioner under Section 110 (e) (g) of the
Code of Criminal Procedure, which reads thus :-
“Section 110. Security for good behaviour from
habitual offenders. - When an Executive Magistrate
receives information that there is within his local
jurisdiction a person who -
(a) --------
(b) --------
(c ) --------
(d) -------
(e) habitually commits, or attempts to commit, or
abets the commission of, offences, involving a breach
of the peace or
(f) ------
(g) is so desperate and dangerous as to render his
being at large without security harzardous to the
community,
such Magistrate may, in the manner hereinafter
provided, require such person to show cause why he
should not be ordered to execute a bond, with
sureties, for his good behaviour for such period, not
exceeding three years, as the Magistrate thinks fit.”

14. A plain reading of sub clause (e) of Section 110 shows that
for initiating any action under the said clause, the person against
whom such action is to be initiated, must be a habitual offender.
There are catena of judgments, wherein the Hon'ble Apex Court
as well this Court has clarified as to who is to be termed as
'habitual offender'. The word habit implies a tendency or capacity
resulting from the frequent repetition of some acts. The word
'habit' and 'habitually' imply frequent practice or use. Habit is to
be proved by an aggregate of acts and to constitute a person a
habitual offender, it is necessary that the subsequent offence
charged should have been committed by the accused after the
previous conviction. In simple words for calling any person as
habitual offender, at least more than one crime must be at his discredit.
In the instant case, admittedly there is only one offence
pending against the petitioner arising out of crime No. 10/2005.,
the fact apart that according to the petitioner, even in the said
offence he has been falsely implicated.
15. Further it is interesting to note that in crime No. 10/2005,
the petitioner and few others are alleged to have committed the
offences under Section 143 of the Indian Penal Code, under
Section 37(1) (3) read with Section 135 of the Bombay Police Act

and under Section 3 of the Maharashtra Dis-figuration of Property
(Prohibition) Act, 1995. None of the offence charged against the
petitioner can be said to be of a grave nature. At least no
inference could have been drawn from the said one crime pending
against the petitioner that there was a danger from him to the
society at large. The F.I.R. dated 19-02-2005 on the basis of
which Crime No. 10/2005 came to be registered is filed on record
by the petitioner. We have gone through the contents of the said
F.I.R. It reveals that some five-six persons had sat on hunger
strike in front of the Police Chowki at Kolhar, without obtaining
any prior permission therefor to lodge their protest against some
police action. It was further alleged that respondent No. 3 gave
them an understanding that they have not obtained any
permission for sitting on hunger strike, and since the preventive
orders under Section 37 of the Bombay Police Act are in force,
their assembling in a group of more than five persons was in
violation of the said order. It was also alleged that the said
persons have displayed a cloth banner on the wall of the Police
Chowki. In the set of these facts and merely on these allegations
an offence came to be registered against them under Section 143
of the Indian Penal Code and other sections referred herein
above. The allegations on the basis of which crime No. 10/2005

came to be registered cannot be said to be of serious nature so
as to invite a chapter proceeding out of that.
16. Secondly, the petitioner has come out with a specific case
that the persons who were alleged to have sat on hunger strike
were the same persons against whom a fortnight back an offence
bearing crime No. 1/2005 was registered under the provisions of
Bombay Gambling Prohibition Act, and in the said case the
present petitioner had acted as a panch witness for the personal
search and seizure of the persons involved in the said offence.
The fact so specifically stated by the petitioner has not been
denied or disputed by respondent Nos. 3 & 4 in their affidavit-inreply.
In absence of any contrary evidence and denial to the said
fact, we do not find any reason to disbelieve the version in that
regard in the petition, and if that be so, it appears quite
improbable as has been argued on behalf of the petitioner, that he
will sit on hunger strike as alleged in crime No. 10/2005 along
with offenders in crime No. 1/2005.
17. Similarly, the contention of the petitioner that except the
aforesaid crime No. 10/2005, no other case is pending against
him has also not been denied or disputed by the respondents. In
such circumstances, it apparently appears that there was no

ground for initiating chapter proceedings against the petitioner,
invoking sub clause (e) and (g) of Section 110 of the Code of
Criminal Procedure. Nothing has been brought on record from
which an inference could have been drawn that the petitioner was
desperate and dangerous so as to render him at large without
obtaining security from him, and further that his presence without
such security was hazardous to the community. In the above
circumstances, we have no hesitation in holding that the act of
respondent Nos. 3 & 4 of initiating chapter proceedings against
the petitioner under Section 110 (e) (g) of the Code of Criminal
Procedure was not only arbitrary, malafide also.
18. The allegation pertaining to illegal detention of the petitioner
is equally serious. In para No. 7 of the petition, the petitioner has
specifically averred that the petitioner was arrested on 23-02-2005
by Loni Police at 10.00 am, and was taken for medical
examination on the same day at 11.00 am. The petitioner has
further averred that after completion of the medical examination,
the respondents could have produced him before the Special
Executive Magistrate immediately on the same day, however,
deliberately petitioner was kept in custody, and was taken to
Ahmednagar and produced on 24-02-2005 before the Special
Executive Magistrate (LCB), Ahmednagar at 3.30 pm.

19. Regarding the above allegations, the respondent Nos. 3 & 4
have given the following reply :-
“ In reply to para No. 7 I deny that the respondent
no. 3 got knowledge of the complaint made by the
petitioner to the respondent No. 2. I say and submit
that the petitioner was arrested in pursuance to the
chapter case no. 68/2005 and on the next day i.e. 24-2-
2005 at 12.30 p.m., he was produced before the
Special Executive Magistrate, Ahmdnagar. I deny that
the respondent No. 3 and 4 have arbitrary and
malafidely lodged chapter case. I further say and
submit that the Special Executive Magistrate has
released the petitioner in the said chapter case
furnishing bond of Rs. 1,00,000/. I deny rest of the
contentions in the said paras.”
20. We have carefully perused the entire affidavit-in-reply filed
by respondent Nos. 3 & 4. The respondents have not speficially
denied or disputed the fact stated in the petition that the petitioner
was arrested on 23-02-2005 at 10.00 am and was sent for Medial
Examination at 11.00 a.m. It is significant to note that not only
that the petitioner has averred in the petition that he was arrested
on 23-02-2005, but he has also filed on record the copy of
requisition of the even date, whereby he was referred for medical
examination which is at Exhibit-L Colly. When there are specific
averments, general denial would not be sufficient. Respondents
have not clarified as to at which time the petitioner was referred to
Medical Officer on 23-02-2005 if not at 11.00 am, as stated by the
petitioner. In absence of any contrary material / information there

seems no reason to disbelieve the statement of the petitioner that
he was sent for his medical examination at 11.00 am. Thus, it
was quite possible for the police to produce the petitioner before
Special Executive Magistrate on the same day. However, he was
not produced on that day and was detained in custody and came
to be produced on 24-02-2005, that too at 3.30 pm as per the
version of the petitioner, and at about 12.30 pm as contended by
the respondents. It need not be stated that personal liberty has
utmost value in the life of a person, and his illegal detention even
for a short while has also to be taken very seriously. When the
petitioner was arrested on 23-02-2005 at about 10.00 am, in any
case he ought to have been produced before the Special
Executive Magistrate latest by 10.00 am on 24-02-2005. In such
circumstances, even if contention in the affidavit-in-reply of
respondent No. 3 & 4 is considered that petitioner was produced
before the Special Executive Magistrate at 12.30 pm on 24-02-
2005, it was in violation of Section 57 of the Code of Criminal
Procedure, and the period spent by the petitioner in custody of the
police beyond twenty four hours has to be held as his illegal
detention.
21. Moreover, the twenty four hours period prescribed under
Section 57 of the Code is the outer limit beyond which the

arrested person cannot be detained in police custody. However,
it does not mean that the police shall wait for twenty four hours
after arresting a person to produce him before the Magistrate. On
the contrary, the law mandates that the person arrested shall be
produced before the nearest Magistrate as early as possible. In
the instant case, there seems every reason to believe that the
police could have produced the petitioner before the concerned
Special Executive Magistrate on 23-05-2005 itself, and should not
have waited and detained the petitioner till 24-05-2005.
22. The next issue falls for our consideration is whether the
guide-lines laid down by the Hon'ble Supreme Court, in the case
of D.K. Basu Vs. State of West Bengal (supra) were followed in
the instant case. The petitioner has alleged that his arrest was
not communicated to his family members or near relatives or
friends. The aforesaid allegation has not been denied or disputed
by the respondent. Para No. 22 of the affidavit-in-reply deals with
the contentions raised in para No. 7 of the petition, wherein the
petitioner has alleged that his arrest was not intimated to his
relatives or family members or friends. However, para 22 of the
affidavit-in-reply is silent on the accusation so made by the
petitioner. No doubt, there is a general denial that rest of the
contentions in the said paras are denied.

23. In para No. 8 of the affidavit-in-reply, it is averred that on
24-02-2005 when the petitioner and other persons were produced
before the Special Executive Magistrate and the Special
Executive Magistrate directed the petitioner to furnish a bond in
the amount of Rs. 1,00,000/-, wife of the petitioner was present
there, and she was aware of the order passed by the Special
Executive Magistrate. However, the fact remains that nothing has
been stated in the affidavit-in-reply that after the petitioner was
arrested on 23-02-2005, intimation of that arrest was given to his
family members or relatives or friends. The contention of the
respondents that the wife of the petitioner was present, when the
petitioner was produced before the Special Executive Magistrate
is totally irrelevant. As per the guide-lines laid down by the
Hon'ble Supreme Court in case of D.K. Basu Vs. State of West
Bengal (supra), it was imperative on part of the Police Officer to
immediately inform about the arrest of the petitioner to his family
members, or his relatives or his friends. The respondents have
admittedly not placed on record any information and / or evidence
to show that the arrest of the petitioner was intimated to his family
members or near relatives or his friends. The allegations so
made by the petitioner that the guide-lines laid down in the case

of D.K. Basu Vs. State of West Bengal (supra) were violated in
his case, thus, stands sufficiently proved.
24. Further, it is also the grievance of the petitioner that while in
custody of the police, he was treated as a hardened criminal. He
has specifically stated that his photographs were taken in the
Police Station by giving slate in his hand, and while taking him to
Ahmednagar he was paraded in village Kolhar. In the affidavit-inreply
these allegations have not been specifically denied or
disputed by the respondents. The practice of obtaining
photographs of the offenders by asking the offenders to hold the
slate in their hand bearing their name on it is followed in the case
of habitual offenders or the person involved in serious crimes or
anti-social activities. Record shows that there were no criminal
antecedents to the petitioner. While he was so arrested, a single
crime was at his discredit and that too was for petty offences. In
such circumstances, the act of respondent Nos. 3 & 4 to take
photographs of the petitioner by putting slate in his hands appears
quite unjustifible and it suggests the vindictiveness on part of the
concerned police officers. Likewise, the parading of the petitioner
through Kolhar village was also unwarranted, and it also shows
the vengeful attitude of the concerned police officers towards the
petitioner. There is, thus, substance in the allegation made by the

petitioner that he was paraded by the police with the intention of
tarnishing his image and to humiliate him publicly.
25. The next issue which requires consideration is the order
passed by the Special Executive Magistrate directing the
petitioner to furnish the bond in the amount of Rs. 1,00,000/-.
26. Time and again this Court has expressed its dis-pleasure in
regard to the manner in which the orders are being passed by the
Executive Magistrates under Sections 111 and 116 (3) of the
Code. In the case of Rajesh Suryabhan Nayak & Ors. Vs. State
of Maharashtra & Ors.; [2006 (2) Bom.C.R. (Cri.) 199], the
Division Bench of this Court has elaborately discussed and had
expressed its disgruntlement in respect of the orders passed by
the Executive Magistrates. This Court has held in the said
judgment that the provisions of Section 116 (3) clearly envisages
that the order of interim bond should be passed after recording
reasons therefor. The Magistrate while acting under sub section
3 of Section 116 of the Code has to make careful consideration as
regards separate case of emergency as contemplated under the
said Section and he must be satisfied that immediate steps are
necessary. In the instant case, it is quite apparent that the
Special Executive Magistrate did not apply his mind at all.

Admittedly, there was only one criminal case pending against the
petitioner and that too as mentioned earlier for some petty
offences. In such circumstances, the Executive Magistrate was
cast with a duty to call the police officer concerned and inquire
what was the other material against the petitioner so as to
require him to execute an interim bond by invoking provisions
under Section 116 (3) of the Code. Without their being any
material on record merely relying on a police officer and in this
matter further there is every reason to believe that merely on
insistence of respondent No. 3, the Special Executive Magistrate
passed an order directing the petitioner to furnish the bond in the
amount of Rs. 1,00,000/-. The order so passed was thus without
application of mind and bad in law.
27. The order so passed by the Special Executive Magistrate
was bad for one more reason that, the amount of the bond fixed
was excessive, unreasonable and arbitrary. The Proviso to
Section 116 of the Code provides that, the conditions of such
bond, whether as to the amount thereof or as to the provisions of
sureties or the number thereof or the pecuniary extent of their
liability, shall not more onerous than those specified in the order
under Section 111 of the Code. Time and again, the Courts have

emphasised that while directing any person for furnishing a bond
or surety, no onerous conditions are to be put.
28. In the case of Rajesh Suryabhan Nayak & Ors. Vs. State
of Maharashtra & Ors (supra), the Division Bench of this Court
has made following observations in para No. 9 of the judgment,
which are thus :-
“ The next important thing which is required to be
kept in mind by the learned Magistrate is in relation to
the amount of the bond. This should be fixed with due
regard to the circumstances of the case, and must not
be excessive. The Magistrate should consider the
station in life of the person concerned, and should not
go beyond a sum for which there is a fair probability of
his being able to find security. Imprisonment is
provided as a protection to society against the
perpetration of crime by the individual, and not as a
punishment for a crime committed, it is only
reasonable and just that the individual should be
afforded a fair chance at least of complying with the
required condition of security.”
29. Proceeding under Section 110 of the Code are intended to
be precautionary and not punitive and, therefore, huge amount of
security should not be required. The object of taking bond is not
to obtain the money to State, but to prevent crime. In the instant
case, as has been alleged by the petitioner, respondent No. 3 has
insisted the Special Executive Magistrate by filing a written
application before him that the petitioner shall be directed to
furnish bond in the amount of Rs. 1,25,000/-. It seems that the

Special Executive Magistrate also without any application of mind
and without looking to the allegations against the petitioner
passed an order, directing the petitioner to furnish a bond of
Rs. 1,00,000/- . The order so passed was unconscionable and it
is discernible that intentionally petitioner could not make
arrangements of the bound of such an huge amount of
Rs. 1,00,000/-, and he was, therefore, sent to Visapur Jail. On
26-02-2005 petitioner could submit the bond in the said amount
and was thereafter released on the said date. The period which
the petitioner was required to spent in jail was the consequence of
an arbitrary order passed by the Special Executive Magistrate on
insistence of respondent No. 3. The order so passed if viewed in
light of the law laid down by the Apex Court and by our High Court
has to be held as an unjust and arbitrary order. We have further
no hesistation in holding that if the amount of the bond is fixed
arbitrarily and if the person arrested requires to be behind the bar
for his inability to forthwith furnish the bond in the said amount,
period spent by him behind the bars till furnishing of the bond
should be held to be his illegal detention.
30. From the affidavit-in-reply filed by respondent No. 3, it is
revealed that the power was exercised by him under Section
41(2) of the Code, under which an officer in-charge of the Police

Station is empowered to arrest any person who belongs to one or
other categories of persons specified in Section 109 or Section
110 of the Code. The clauses invoked by respondent no. 3
against the petitioner were clauses (e) and (g) of Section 110 of
the Code. Considering the facts of the present case, even the
exercise of the power under Section 41(2) of the Code, for taking
the petitioner into custody without obtaining orders from the
Executive Magistrate under Section 113 of the Code was
unwarranted. The allegation made by the petitioner that clauses
(e) and (g) of Section 110 of the Code of Criminal Procedure were
maliciously invoked against him by respondent Nos. 3 & 4, so that
he can be arrested under section 41 (2) of the Code is difficult to
be ruled out. The contention raised on behalf of the petitioner
that he was detained illegally and with malafide intention is borne
out by the above acts also.
31. As has been submitted by the learned counsel for the
petitioner, the chapter proceeding No. 68/2005 initiated against
the petitioner was ultimately dropped under Section 118 of the
Code. The learned counsel has filed C.A. No. 3073/2009 along
with present petition and has sought permission to amend the
petition to incorporate the fact that the chapter proceeding
initiated against him were ultimately dropped under Section 118 of

the Code. We have gone through the documents placed on
record by the petitioner evidencing the said fact. It is significant to
note that the observations made by the Special Executive
Magistrate, while passing the final order in the said chapter
proceeding, he has observed that having regard to the nature of
the offence pending against the petitioner it does not appear that
the petitioner i.e. opponent in the chapter proceeding, is a habitual
offender, and only on that ground the proceeding was dropped
against the petitioner. It had also fortified the allegation made by
the petitioner against respondent No. 3 that initiation of chapter
proceeding was with malafide intention.
32. The petitioner has filed on record the copies of
applications / representations submitted by him to the higher
police officers. On perusal of the representations so send by the
petitioner on 04-01-2005, 02-05-2005, 02-01-2006 and 06-01-
2006, it is revealed that in the said representations also the
petitioner has specifically averred that he was arrested on 10.00
am on 23-02-2005, however, he was not produced before the
Special Executive Magistrate on the same day and was detained
in the custody of the police, and was produced before the Special
Executive Magistrate on 24-02-2005. It has also been specifically
averred by the petitioner in his representation dated 02-01-2006

that no intimation of his arrest was given to his family members or
relatives. In the said letter dated 02-01-2006, a complaint was
made by the petitioner that after he was arrested on 23-02-2005
his photographs were obtained by asking him to hold a slate in his
hand. It was specifically stated by the petitioner that there was no
criminal antecedents against him and only one case was at his
discredit i.e. crime No. 10/2005. It was also informed by the
petitioner that even in that case he was falsely implicated. The
reply dated 15-09-2005 and 17-10-2005 given by the
Superintendent of Police to the representations made by the
petitioner, reveal that enquiry was conducted in the complaint so
made by the petitioner through Sub Divisional Magistrate &
Deputy Superintendent of Police (Head Quarter), Kopergaon,
however, the said papers are not filed on record by the
respondents. It appears to us that when the petitioner has made
grievance to the higher police officers that he was falsely
implicated in the chapter proceeding, and further that he was
illegally detained in custody and no intimation of his arrest was
given to his family members, the higher police officers ought to
have taken the complaint seriously. However, it appears that no
such attention was given even by the senior police officers.

33. The petitioner has claimed the compensation amounting to
Rs. 1,00,000/-. Shri N.B. Suryawanshi, learned counsel appearing
for the petitioner submitted that at the relevant time the petitioner
was an active worker of Bhartiya Jantra Party and was working as
a Taluka Secretary of the said party. The learned counsel further
submitted that because of the false chapter proceeding initiated
against him, he was required to be behind the bars for about four
days. The learned counsel further argued that, while in custody
the petitioner was humiliated by respondent No. 3 by obtaining his
photographs by asking him to hold slate in his hand as if he was a
history sheeter. The learned counsel further submitted that while
taking the petitioner to Ahmednagar for producing him before the
Special Executive Magistrate, he was paraded in Village Kolhar.
The learned counsel submitted that the aforesaid illegal acts
committed by respondent Nos. 3 & 4 cumulatively resulted in
lowering down the image of the petitioner in the society, and
petitioner was humiliated to a great extent. Considering the facts
involved in the present case, the learned counsel submitted that
the petitioner deserves to be awarded the compensation of Rs.
1,00,000/-.
34. Through various judicial pronouncements law has been now
settled that the compensation can be demanded and granted in

the Writ Petition under Article 226 of the Constitution by the High
Court. Way back in the year 1993, the Apex Court while
delivering the judgment in the case of Nilabati Bahera Alias
Lauta Bahera (Through The Supreme Court Legal Aid
Committee) Vs. State of Orissa; [ 1993 (2) SCC 746], referring
to all earlier judgments on the point cristilised the law as under :-
“ This Court and the High Courts, being the
protectors of the Civil liberties of the citizen, have not
only the power and jurisdiction but also an obligation
to grant relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to victim or
the heir of the victim whose fundamental rights under
Article 21 of the Constitution of India are established
to have been flagrantly infringed by calling upon the
State to repair the damage done by its officers to the
fundamental rights of the citizen, notwithstanding the
right of the citizen to the remedy by way of a civil suit
or criminal proceedings. The State, of course has
the right to indemnified by and take such action as
may be available to it against the wrongdoer in
accordance with law - through appropriate
proceedings. Of course, relief in exercise of the
power under Article 32 or 226 would be granted only
once it is established that there has been an
infringement of the fundamental rights of the citizen
and no other form of appropriate redressal by the
court in the facts and circumstances of the case, is
possible. The decisions of this Court in the line of
cases starting with Rudul Sah V. State of Bihar
granted monetary relief to the victims for deprivation
of their fundamental rights in proceedings through
petitions filed under Article 32 or 226 of the
Constitution of India, notwithstanding the rights
available under the civil law to the aggrieved party
where the courts found that grant of such relief was
warranted. It is sound policy to punish the
wrongdoer and it is in that spirit that the courts have
moulded the relief by granting compensation to the
victims in exercise of their writ jurisdiction. In doing
so the courts take into account not only the interest

of the applicant and the respondent but also the
interests of the public as a whole with a view to
ensure that public bodies or officials do not act
unlawfully and do perform their public duties properly
particularly where the fundamental right of a citizen
under Article 21 is concerned. Law is in the process
of development and the process necessitates
developing separate public law procedures as also
public law principles. It may be necessary to identify
the situations to which separate proceedings and
principles apply and the courts have to act firmly but
with certain amount of circumspection and selfrestraint,
least proceedings under Article 32 or 226
are misused as a disguised substitute for civil action
in private law. Some of those situations have been
identified by this Court in the cases referred by the
Brother Verma, J.”
. In the case of D.K. Basu Vs. State of W.B., [Air 1997
Supreme Court 610 (1)], Hon'ble Apex Court in para Nos. 42 &
55 has held thus :-
“42. Some punitive provisions are contained in the
Indian Penal Code which seek to punish violation of
right to life. Section 220 provides for punishment to
an officer or authority who detains or keeps a person
in confinement with a corrupt or malicious motive.
Sections 330 and 331, provide for punishment of
those who inflict injury or grievous hurt on a person to
extort confession or information in regard to
commission of an offence. Illustrations (a) and (b) to
Section 330 make a police officer guilty of torturing a
person in order to induce him to confess the
commission of a crime or to induce him to point out
places where stolen property is deposited. Section
330, therefore, directly makes torture during
interrogation and investigation punishable under the
Indian Penal Code. These statutory provisions are,
however, inadequate to repair the wrong done to the
citizen. Prosecution of the offender is an obligation
of the State in the case of every crime but the victim
of crime needs to be compensated monetarily also.
The Court, where the infringement of the fundamental

right is established, therefore, cannot stop by giving
declaration. It must proceed further and give
compensatory relief, not by way of damages as in a
civil action but by way of compensation under the
public law jurisdiction for the wrong done, due to
breach of public duty by the State of not protecting
the fundamental right to life of the citizen. To repair
the wrong done and give judicial redress for legal
injury is a compulsion of judicial conscience.”
 “55. Thus, to sum up, it is now a well accepted
proposition in most of the jurisdiction, that monetary
or pecuniary compensation is an appropriate and
indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the establised
infringement of the fundamental right to life of a
citizen by the public servants and the State is
vicariously liable for their acts. The claim of the
citizen is based on the principle of strict liability to
which the defence of sovereign immunity is not
available and the citizen must receive the amount of
compensation from the State, which shall have the
right to be indemnified by the wrong doer. In the
assessment of compensation, the emphasis has to be
on the compensatory and not on punitive element.
The object is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding
appropriate punishment for the offence (irrespective
of compensation) must be left to the Criminal Courts
in which the offender is prosecuted, which the State,
in law, is duly bound to do. The award of
compensation in the public jurisdiction is also without
prejudice to any other action like civil suit for
damages which is lawfully available to the victim or
the heirs of the deceased victim with respect to the
same matter for tortious act committed by the
functionaries of the State. The quantum of
compensation will, of course, depend upon the
peculiar facts of each case and no strait-jacket
formula can be evolved in that behalf. The relief to
redress the wrong for the established invasion of the
fundamental rights of the citizen, under the public law
jurisdiction is, thus, in addition to the traditional
remedies and not in derogation of them. The amount
of compensation as awarded by the Court and paid

by the State to redress the wrong done, may in a
given case, be adjusted against any amount which
may be awarded to the claimant by way of damages
in a civil suit.”
35. The aspect of compensation to be awarded in cases of
illegal detention has been dealt with by the Division Bench of this
Court, in the case of The State of Maharashtra Vs. Shri Sagar
Balu Ubhe [ 2014 ALL MR (Cri) 1010]. Relevant observations
are in para No. 28 of the judgment, which are thus :-
“28. The principles evolved in D.K. Basu have been
followed ever since: Mehboob Batch v State,(2011) 7
SCC 45 : [2011 ALL MR (Cri) 1674 (S.C.) ], Haricharan v
State of MP, (2011) 4 SCC 159 : [2011 All SCR 911] and
Sube Singh v State of Haryana, (2006) 3 SCC 178 :
[2006 ALL MR (Cri) 1486 (S.C.)] among them. But D.K.
Basu also enunciated the principle of monetary or
pecuniary compensation as an appropriate and "indeed an
effective and sometimes perhaps the only suitable remedy
for redressal of the established infringement of the right to
life of a citizen by public servants." The State is vicariously
liable for their acts. The objective is to provide a balm for
State-inflicted wounds, not to punish the transgressor or
offender. In this case, once the infringement of right to
liberty has been established, it remains to determine the
quantum of appropriate compensation. In S.P.S. Rathore v
State of Haryana,(2005) 10 SCC 1 while following
D.K.Basu, the Supreme Court held that compensation can
be awarded, but this is not jurisdiction that a court should
lightly exercise under either Article 32 or Article 226 of the
Constitution of India. The courts have consistently
permitted monetary compensation consequential upon the
deprivation of a fundamental right, the Supreme Court held
in S.P.S. Rathore, noting a very large number of cases
where this principle has been followed. [Para 10 of the
SCC report]. No particular amount has been sought as
compensation in the prayers in this writ petition, and, in our
view, rightly, for this is a matter ever in the discretion of the
court. That some compensation must be ordered to be paid
is, in our view, an inescapable conclusion. What are the

considerations we should bear in mind while assessing the
quantum? The petitioner's antecedents are, we believe,
entirely irrelevant and cannot be a mitigating circumstance
in favour of the respondent; every person is entitled to the
protection of the law, even every recidivist. Should
compensation be adjusted according to the social station of
the victim? We think not. The only gauge, as we see it, is
an assessment of the conduct of the public servants.
Where we find their conduct wanting, compensation must
follow without regard to the status of the victim. Having
regard to the facts of the case, the nature of the testimony
and the conduct of the parties, it is our view that an amount
of Rs.5 lakhs is just compensation payable to the petitioner
by the 1st respondent. In our view, this cannot be said to
be an exorbitant sum, bearing in mind that the State
Government has resisted and opposed the enquiry and has
not once, but twice applied before us to have the enquiry
report quashed. A very considerable amount of judicial time
has been thus expended on this matter in one forum or the
other. Even otherwise, by present-day standards, we do
not think that the compensation we have in mind can at all
be considered to be unreasonably high. Needless to add,
this amount of compensation is entirely without prejudice to
the civil remedies, if any, available to the petitioner”.
36. In the light of the observations made and the law laid down
in the judgments referred to here-in-above, we have examined the
facts of the present case. We have elaborately discussed here-inabove
and recorded our conclusions that the chapter proceeding
initiated against the petitioner was frivolous and false. We have
also held that the petitioner was illegally detained in the police
custody. We have also held that parading of the petitioner
through village Kolhar and obtaining his photographs in the Police
Station by asking him to hold slate in his hand, were tortuous
acts. We have also held that to ask the petitioner to furnish

interim bond in the amount of Rs. 1,00,000/- was an arbitrary and
unjustifiable order, which was passed at the insistence of
respondent Nos. 3 & 4. It has not been disputed that petitioner
was active worker of a National Political party. At the cost of
repetition, we state that there were no criminal antecedents
against the petitioner. It is the matter of record that the chapter
proceeding initiated against the petitioner was ultimately dropped
under section 118 of the Code of Criminal Procedure and the
petitioner was discharged. Looking to the facts as aforesaid, it
does not appear to us that the petitioner has claimed
unreasonable amount by way of compensation. We are,
therefore, inclined to accept his request in toto, and hold the
petitioner entitled for the compensation amounting to Rs.
1,00,000/-. After having considered the facts and circumstances
involved in the present case from all angles, according to us to
award monetary compensation to the present petitioner is the only
practicable mode of redress available for the contravention made
by the State through its servants in the purported exercise of their
powers. The aforesaid amount of compensation shall be paid to
the petitioner by the State Government within three months from
the date of this order. It will be open for the State Government to
recover the same from the respondent Nos. 3 & 4, the police
officers, who have violated the guide-lines laid down in

D.K.Basu's case while arresting the petitioner and to whom we
have held responsible for illegal detention of the petitioner and for
unnecessarily initiating chapter proceeding under sub section (e)
(g) of Section 110 of the Code of Criminal Procedure, when there
was no evidence to show that the petitioner was habitual offender
or and that his existence in the society without security was
hazardous to the community. The petition, therefore, succeeds to
the above extent, and the rule is made absolute in above terms.
(P.R. BORA, J.) ( S.S. SHINDE, J. )
 August-2014

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