ORDER
1. The arrest of the petitioner in connection with C.R. No.532/2024 of Tembhurni police station is declared to be illegal.
2. The petitioner-Payal Hariom Verma is directed to be released on bail on her executing P.R. Bond in the sum of Rs.30,000/- with one or two sureties in the like amount in connection with C.R. No.532/2024 of Tembhurni police station.
3. The investigating agency is not precluded from arresting the petitioner, if the investigation warrants so, by following the due procedure of law.
IN THE HIGH COURT OF BOMBAY
Writ Petition (st) No. 23969 of 2024
Decided On: 09.01.2025
Payal Hariom Verma Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Sarang V. Kotwal and S.M. Modak, JJ.
Author: Sarang V. Kotwal, J.
Citation: MANU/MH/0177/2025,2025:BHC-AS:1576-DB
1. This is a petition with the following prayers:-
"(a) This Hon'ble Court may kindly be pleased to declare the arrest of the Petitioner/Accused No.5, in connection with C.R.No. 532 of 2024 registered with Tembhurni Police Station dated 11.09.2024 at 0038 HRS to be illegal and contrary to the provisions of section 46(4) of the Code of Criminal Procedure.
(b) This Hon'ble Court upon declaration of the arrest of the Petitioner/Accused No.5 dated 11.09.2024 at 0038 HRS in connection with C.R. No.532 of 2024 registered with Tembhurni Police Station, be further pleased to release the Petitioner, forthwith.
(c) This Hon'ble Court may kindly be pleased to issue writ of mandamus or any other writ, order of directions in the like nature thereby quashing and setting aside the order of remand dated 11.09.2024 (Exh.G to the Petition) and the orders of refusing bail dated 24.09.2024 passed by Ld. JMFC, Madha and (Exh.J to Petition) and order dated 25.10.2024 passed by the Addl. Sessions Judge, Barshi."
2. Considering the nature of the prayer, with the consent of both the learned counsel for the parties, we are deciding this petition finally. Hence, Rule. Rule made returnable forthwith.
3. Heard learned counsel for the parties. The main plank of this petition is non-compliance of Section 46 of the Code of Criminal Procedure, 1973. According to the petitioner, she being a woman, she could not have been arrested after sunset. In this particular case that is what has exactly happened and, therefore, her arrest becomes illegal. Briefly stated, the facts are as follows:
At the first instance C.R.No.396/2024 was registered at Karmala Police Station on 20 June 2024 under Sections 420,467,468,471 read with Section 34 of IPC. The FIR was lodged by one Anil Ramesh Pawar. The gist of the FIR was that between 1st January 24 to 20th April 2024, the accused Shri Palvinder Singh and one Payal madam (according to the prosecution case, petitioner is Payal madam) in collusion with each other represented that they were partners of M/s. Srimma Farm Animal Bazaar Private Limited. They induced the first informant and five others to invest in their company. They represented that they were investing the in the share market and the informant and others would get 50% of the monthly returns on their investment. In other words, within two months the investors like the informant and others would get double the amount of their investment. On this representation, they accepted Rs.10,50,000/- from the first informant and five others. Ultimately, it was found to be a fraudulent representation. The informant and others lost their money.
4. On this ground FIR was lodged. The investigation commenced and the petitioner was arrested in this connection on 9 August 2024 from Mohali. She was produced before the jurisdictional Magistrate after initially obtaining transit remand from Mohali.
5. The petitioner applied for bail in connection with said offence. The learned JMFC, Karmala vide his order dated 19 August 2024 granted bail to her on the condition of executing P.R. Bond for Rs.50,000/- with one surety.
6. The petitioner could not immediately comply with the bail conditions and she was in the process of furnishing the surety. In the meantime, another offence was registered at Tembhurni police station on 27 August2024 vide C.R. No.532/2024 under Sections 420,467,468,471 read with Section 34 of IPC. This FIR was lodged by one Sujay Shinde against the same accused including the petitioner in respect of the same entity M/s. Srimma Farm Animal Bazaar Private Limited. The allegations were similar. On the similar representation they obtained Rs.22,50,000/- from the first informant and 14 others. They also had lodged a FIR. It is mentioned in the FIR that many others were similarly cheated by those accused.
7. The present petition is in respect of the arrest effected by the officers of Tembhurni police station in connection with their C.R.No.532/2024. According to the petitioner, after completing the formalities she stepped out of Karmala sub jail on 10 September 2024 in the evening and she was immediately arrested. The contention of the petitioner is that she was arrested after the sunset. The petitioner is shown as the accused No.5 in that offence. The remand report dated 10 September 2024 mentions that once the petitioner was released on bail in the earlier offence, she was taken in custody in the evening on 10 September 2024 but since she could not have been arrested after the sunset; woman PSI-Swati Survase arrested her at 12.37 a.m. in the midnight on 11 September 2024 on obtaining prior permission of the learned Magistrate. Learned counsel for the petitioner submitted that the petitioner was taken in the custody and kept under detention after she stepped out of Karmala sub jail. That was done after the sunset when there is express bar under section 46(4) of the Cr.P.C.. He, therefore, submitted that her detention becomes illegal. He relied on the provisions of Cr.P.C. to that effect and also on a Division Bench judgment of this Court in the case of Kavita Manikikar vs. CBI, State of Maharashtra 1. He submitted that since the petitioner's detention is illegal, she has to be released.
8. The learned APP opposes this submission. She relied on the affidavit filed by the PSI-Kuldip Vijay Sontakke attached to Tembhurni police station. It is mentioned in the affidavit that petitioner was involved in the offences registered vide C.R. No.532/2024 at Tembhurni Police Station. The allegations in the FIR are produced in the earlier part of the affidavit-in-reply. Till Paragraph-13, the affidavit refers to the investigation carried out in that connection. As far as the main issue involved in this petition is concerned, the averments are made in Paragraphs 14 and 15. It is stated in the affidavit-in-reply that the Judicial Magistrate First class granted bail to the petitioner in connection with C.R. No.396/2024 of Karmala police station on 19 August 2024. After fulfillment of bail conditions, she was released from Karmala sub jail, District Solapur on 10 September 2024. When she came out of Karmala sub jail on 10 September 2024, at around 6.40 p.m., PSI-Sontakke who had filed an affidavit-in-reply and the police team including one woman Constable met the petitioner at the gate of the sub jail when her Advocate had accompanied her. They were informed about the C.R. No.532/24 of Tembhurni police station and about her involvement in the offence. It is mentioned in the affidavit-in-reply that the police requested the petitioner and her Advocate to accompany them to JMFC, Madha. It is specifically mentioned in the affidavit-in-reply that the petitioner was taken in the custody by woman police constable Pardhi in the presence of PSI Sontakke. He requested the Karmala police station to take station diary entry in respect of taking custody of the petitioner and had taken her to JMFC for permission to arrest in the night. Accordingly, station diary entry was made by Karmala police station in whose jurisdiction Karmala sub jail was situated. The affidavit-in-reply further mentions that after completing medical examination of the petitioner from Karmala Sub Hospital, Karmala, she was produced by the woman police Sub-Inspector Smt. Swati Survase attached to Tembhurni police station before the learned JMFC, Madha on 10 September 2024 at 11.00 p.m. This much time was required because the residence of JMFC, Madha was about 100 km away. It is further mentioned that an application was filed before the learned JMFC requesting to grant permission to arrest the petitioner. Accordingly, learned Magistrate granted permission to arrest the petitioner. The application mentioned that there were exceptional circumstances for arresting her as she was resident of different State and she would not be available. Learned JMFC vide his order dated 10th September 2024 passed at 11.00 p.m. observed that the application mentions that the petitioner was resident of Ghaziabad and her possibility of absconding could not be ruled out. It was submitted before learned JMFC that there were exceptional circumstances to grant the application. Accordingly, permission was granted by the learned Magistrate to arrest the petitioner after sunset and before sunrise as per Section 46 of the Cr.P.C. After this order was passed, the petitioner was put under arrest at 12.37 a.m. on 11th September 2024. In Paragraph-25, it is mentioned that the petitioner was taken in custody at 6.40 p.m. and the sunset was at 6.45 p.m., therefore, she was taken into custody prior to sunset. It is, therefore, contended that there was no illegality committed by the investigating agency.
9. The petitioner filed affidavit-in-rejoinder annexing the timing of sunrise and sunset at Karmala downloaded from internet. In the rejoinder, it is mentioned in Paragraph-8 that on 10th September 2024 the sunset for Karmala town was at 6.37 p.m. and, therefore, admittedly according to the investigating agency, she was arrested at 6.40 p.m. which was after the sunset and hence, the custody became illegal.
10. Learned APP submitted that there was no malafide intention on the part of the investigating agency in effecting the arrest. They had taken the petitioner to Karmala hospital, which was situated nearby, for medical examination before taking her to the Magistrate's residence which was 100 kms away. The investigating agency specifically made an application to seek permission to arrest the petitioner after sunset in exceptional circumstances, as is reflected in the order passed by the learned Magistrate granting permission to arrest the petitioner after sunset. Only after such order was passed on11.00 p.m. on 10 September 2024 by the JMFC, Madha, the formal arrest was effected at 12.37 a.m. on 11 September 2024. She, therefore, submitted that no illegality is committed in the procedure and, therefore, there is no substance in the petition.
11. We have considered these submissions. In this context it is necessary to refer to the relevant provisions of code of criminal Procedure, 1973. Section-46 reads thus:
"46. Arrest how made -- (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made."
Relevant sub-section 4 of Section 46 clearly lays down that no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the woman police officer had to make a written report, obtain prior permission of Judicial Magistrate First class within whose local jurisdiction the offence is committed or the arrest is done. Therefore, in exceptional circumstances it was permissible for the investigating agency to arrest a woman-accused after sunset provided the prior permission of JMFC was obtained.
12. Section 60-A of Cr.P.C. reads thus:
"60A. Arrest to be made strictly according to the Code.-- No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest."
This Section further provides for strict procedure which has to be followed while effecting the arrest. Therefore, it was necessary for the investigating agency to have complied with the provisions of Section 46(4) by obtaining prior permission of the learned Magistrate for effecting arrest after sunset. The fact that she was taken in custody after sunset is accepted as the petitioner has taken a specific stand in particular in the rejoinder that the sunset at Karmala on 10 September 2024 was at 6.37 p.m. The investigating agency has admitted that she was arrested at 6.40 p.m. which would be after the sunset.
13. Even assuming that there were exceptional circumstances to effect arrest of the petitioner after sunset, it was necessary for the investigating agency to have obtained prior permission from the concerned Magistrate. In this particular case it was quite possible for the investigating agency to take steps in that behalf. The petitioner was granted bail in the earlier offences i.e. C.R.No. 396/2024 of Karmala police station vide the order dated 19 August 2024 passed by JMFC, Karmala. The petitioner was in the process of complying with the bail conditions by furnishing surety and she could actually step out of the sub jail only on 10 September 2024, therefore, there was ample opportunity at the hands of the investigating agency. It is not acceptable that the investigating agency was unaware about the whereabouts of the petitioner as C.R. No.532/2024 was registered at Tembhurni Police station. The events which have unfolded show that the officers of the Tembhurni police station were waiting outside Karmala sub jail to take her in custody as soon as she stepped out. Therefore, they were quite clearly aware of the development of the petitioner taking steps to avail of the bail granted to her in the earlier orders. It was very much possible for the investigating agency to have obtained prior permission from the concerned JMFC. It was not done.
14. The very fact that the applicant was taken in custody, was taken for medical examination and then was produced before the JMFC shows that she was already arrested. In this case the investigating agency cannot contend that she was only taken in custody and actual arrest was made at 12.37 a.m. at midnight after obtaining permission from the Magistrate. It is not possible to accept such interpretation in the facts of the present case because though the investigating agency was very much aware of the imminent possibility of the petitioner's stepping out of the sub jail, they had not taken any steps to get the prior permission from the concerned Magistrate. Therefore, it was a malafide exercise of powers on the part of the investigating agency to arrest her after knowing fully well that she was to come out of the sub jail on that particular date in the evening. In this context, learned counsel for the petitioner has rightly relied on the case of Kavita Manikikar (supra) Para-16. The relevant portion of Paragraph-16 of this judgment reads thus:
"16. The precious guarantee of 'Life and Liberty' as enshrined in Article 21 of Constitution of India available to a citizen of this Country can not be denied to a convict, an accused in custody and surely not to a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict on trial. It is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he can not be deprived of without following the procedure established by law. The Code of Criminal Procedure which outlines the manner and to the extent to which a person can be denuded of his liberty, hence, needs a strict compliance. Any deviation from the prescribed procedure in the matter of arrest can therefore, be not countenanced and is liable to be declared as illegal. In such circumstances action of respondent No.1 - CBI in arresting the petitioner at 22.00 hrs on 20.2.2018 is in violation and utter disregard to Section 46(4) of Code of Criminal Procedure and hence declared as illegal. Needless to say that all consequent actions more particularly that of CBI remand of the petitioner by order dated 21.2.2018 by learned Special Judge are of no legal consequences, null and void."
These observations are squarely applicable to the facts of the present case.
15. In view of this discussion, we are inclined to declare the arrest of the petitioner in C.R. No. 532/2024 of Tembhurni police station as illegal. Considering that there are many investors who are allegedly cheated, the offence appears to be serious. Therefore, the petitioner's availability for investigation and trial purposes is important. Therefore, we are inclined to release her on her executing bail bonds with surety to ensure her presence. Paragraph-17 of the Kavita Manikikar judgment also mentions that the CBI was not precluded to arrest the petitioner in that petition, if the investigation warranted. Therefore, by following the due procedure of law, the same course can be adopted in the present case as well. Hence, the following order:
ORDER
1. The arrest of the petitioner in connection with C.R. No.532/2024 of Tembhurni police station is declared to be illegal.
2. The petitioner-Payal Hariom Verma is directed to be released on bail on her executing P.R. Bond in the sum of Rs.30,000/- with one or two sureties in the like amount in connection with C.R. No.532/2024 of Tembhurni police station.
3. The investigating agency is not precluded from arresting the petitioner, if the investigation warrants so, by following the due procedure of law.
16. With these observations, the petition is allowed in the aforesaid terms.
1Writ Petition No. 1142/2018 dated 10 May 2018
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