The Bombay High Court came down heavily on State Govt. of Maharashtra and directed them to pay Rs.50,000/- to Arun Tagad and Shailendra Tagad(Petitioners) as compensation for illegal detention in custody at the instance Rural Police Station, Beed District of Aurangabad Division.
The bench also observed that in such cases the State needs to obtain explanation from the erring authority and fix some kind of responsibility.
The Division bench at Aurangabad comprised by Justice T. V. Nalawade & Justice M. G. Sewlikar, were hearing a criminal writ petition seeking compensation of Rs. 5 lakh each for the said illegal detention.
Matter before the Court:
On 28th January, 2013, FIR was given to Beed Rural Police Station against the Petitioners by one lady and the crime for the offences punishable under Sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code was registered.
On 30th January, 2013, both the Petitioners were arrested by police of Rural Police Station, Beed and the Petitioners were produced before the Judicial Magistrate First Class, Beed on the same day.
The Judicial Magistrate First Class granted bail to both the Petitioners and they were released when they furnished personal bond and surety bond.
It is the contention of Petitioners that when they came out of the campus of Court, same police arrested them immediately and they were taken before the Executive Magistrate, Beed.
On 30th January, 2013, both the Petitioners were produced before the Executive Magistrate, Beed and the Executive Magistrate made order against the Petitioners and directed them to give interim bond with two solvent sureties of Rs.25,000/- each.
On 30th January, 2013, the Petitioners moved an application before the Executive Magistrate and requested the Magistrate to permit them to give cash security in place of surety bond and they submitted that they had applied for getting solvency certificate, but such certificate generally is not issued immediately.
The Executive Magistrate did not allow this application and adjourned the matter to next date. As a result, petitioners were kept in custody for 6 days from January 30, 2013.
The bench pointed out that the provision of Section 113 and relevant portion of provision of Section 116 of the Code of Criminal Procedure shows that when chapter proceeding is started under Section 107 of the Code of Criminal Procedure, the Executive Magistrate is not expected to issue warrant.
The bench further observed that Executive Magistrate can issue only summons or notice and send show cause notice under Section 111 of the Code of Criminal Procedure to opponents.
Thus, the bench finds that arrest before issuing show cause notice under Section 111 of the Code of Criminal Procedure when chapter proceeding is to be filed under Section 107 of the Code of Criminal Procedure is not permissible and it is illegal. Similarly, in view of the provision of Section 116(3) of the Code of Criminal Procedure, interim bond cannot be obtained from the opponent when chapter proceeding is started against him under Section 107 of the Code of Criminal Procedure.
The bench said that the order of Executive Magistrate suffers from illegality and finally noted that the order of Executive Magistrate asking the present Petitioners to execute interim bond of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificate of Rs.25,000/- each for each opponent. These circumstances show that there were malafides and intention of the police was to see that the Petitioners are arrested and they are kept behind bars for few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction
The bench also noted that only because he was expected to discharge the duty given under Chapter VIII of the Code of Criminal Procedure, he may not be directed to pay compensation
The bench ordered the State Government s to pay Rs. 50,000/- to each petitioner and it is to be done within 45 days from today, failing to which the amount will carry interest at the rate of 8% per annum. Court further said it is open to the State to fasten responsibility on concerned police officer and the then Executive Magistrate and recover amount.