THE STATE NEED TO FIX THE RESPONSIBILITY

The Aurangabad Bench of Bombay High Court in Arun and Shailendra vs. The State of Maharashtra [Criminal Writ Petition No. 574 of 2013] has directed the State Government of Maharashtra to pay Rs. 50,000/- each towards compensation to two men who were illegally detained in Beed District of Aurangabad Division for six days in the year 2013.  It was also directed that in such cases the State needs to obtain explanation from the erring authority and fix some kind of responsibility. The Division Bench of Justice TV Nalawade and Justice MG Sewlikar of the Aurangabad Bench were hearing a criminal writ petition seeking compensation of Rs 5 lakh each for the said illegal detention.        

FACTS OF THE CASE

According to the FIR given to Beed Rural Police Station against the Petitioners related to crime for the offences punishable under Sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code was registered. 

On January 30, 2013, police from Rural Police Station, Beed, arrested the Petitioners and they 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.                         

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 the next date.

It is the contention of the Petitioners that there were malafides in the action taken by police and the Executive Magistrate had also did not pass necessary orders and due to that they were illegally detained in jail from January 30, 2013, for about six days. It was contention of the Petitioners that they were not habitual offenders and that Petitioner No.2 was serving in the military at the relevant time and Petitioner No.1 was a respected person and resident of same locality and so detention was not necessary in the case. It is contended that he arrest and detention were illegal and there is violation of the fundamental rights of the Petitioners. 

There is a copy of application, which was given by Petitioners on 30th January 2013 and it can be said that this application was moved after passing of aforesaid order by Executive Magistrate in which the Petitioners offered to give cash security of aforesaid amount and it was also submitted that two sureties.  

On this application, the Executive Magistrate made order that the amount was to be accepted on February 1st, 2013. There is a copy of another application given for the Petitioners by their Advocate and it is dated 31st January 2013. This application shows that it was again requested to Executive Magistrate to give time for getting solvency certificate and at least 2-3 days time was required for that. On this application, the Executive Magistrate made order, which is as follows: “Time granted. Release on today.”   However, it is the contention of the Petitioners that they were detained in custody for about six days i.e. till 5th February, 2013.”

THE LAW

The provision of Section 107 of the Code of Criminal Procedure falls in Chapter VIII. The purpose of Chapter VIII is given in the heading of the Chapter and it shows that the provisions are made for security for keeping the peace and for good behaviour.  The scheme of this Chapter shows that in different circumstances, where cases can be started under different sections like Section 107 to 110. 

“107. Security for keeping the peace in other cases.– 

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.””

“The provision of Section 107(1) of the Code of Criminal Procedure shows that there are conditions for starting the proceeding under this section and the conditions are as under:

(i) That there was information against the opponent that he was likely to commit breach of peace or he was likely to disturb the public tranquility or the opponent was likely to do any wrongful act, which may occasion breach of peace or disturbance of public tranquility;

(ii) There should be material before the Executive Magistrate for forming opinion that there is aforesaid probability;

(iii) There should be subjective satisfaction of Executive Magistrate that such ground exists and that opinion needs to be formed on the basis of material;

(iv) After forming such opinion, the Executive Magistrate needs to issue show cause notice against the opponent and then it can be said that the Executive Magistrate has taken cognizance of the matter and the chapter proceeding starts.

In the present matter, the record shows that there was only police report of aforesaid police head constable before the Executive Magistrate and that was in respect of registration of aforesaid crime. The report does not show that any document including copy of aforesaid FIR was supplied to the Executive Magistrate. On this report itself, the Executive Magistrate made the order and directed the Petitioners to execute interim bond under Section 116(3) of the Code of Criminal Procedure of aforesaid nature. The record produced and the reply of the police head constable does not show that before passing such order, any order of show cause as required under Section 111 of the Code of Criminal Procedure was made. Section 111 of the Code of Criminal Procedure runs as under:

111. Order to be made– When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

Though there is such clear probability, there is no record to show their formal arrest under any provision of law after they were released by the Judicial Magistrate First Class in aforesaid crime.”

“Even if the contention of police head constable Jaibhaye is accepted as it is that he had directed the Petitioners to appear before the Executive Magistrate, he could not have done it in view of the provisions of Chapter VIII. Only after passing of some order under Section 107 read with Section 111 of the Code of Criminal Procedure, the opponents can be directed to appear before the Executive Magistrate if they are not arrested under any provision of law.”

 “The provision of Section 113 and relevant portion of provision of Section 116 of the Code of Criminal Procedure quoted above 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. He can issue only summons or notice and send show cause notice under Section 111 of the Code of Criminal Procedure to opponents. The grounds given in Section 107 of the Code of Criminal Procedure are not that serious and they do not show that there is urgency and they need to be arrested first. 

Ordinarily, for proposing chapter case under Section 108, 109 and 110 of the Code of Criminal Procedure, police use provision of Section 151 of the Code of Criminal Procedure and they make an arrest and then they produce the accused along with the proposal of chapter case before the Executive Magistrate. The provision of Section 151 of the Code of Criminal Procedure enables police to arrest the opponent as the police form opinion that there is a possibility of commission of the cognizable offence by the opponent. There is no such possibility when chapter case is to be started under Section 107 of the Code of Criminal Procedure. Thus, 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 aforesaid discussion shows 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.

COURT PRECEDENTS

This Court has considered the law developed on illegal arrest and illegal detention. This Court has laid down, on the basis of observations made by the Apex Court that in such cases, the victim is entitled to get compensation. The observations are at para 13 and they are as under:

In the landmark case of D.K. Basu Vs. State of W.B. reported as AIR 1997 SC 610, the Supreme Court has laid down the law in respect of the illegal detention and reliefs which can be granted in such cases. In other case, of Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa and others reported as AIR 1993 SC 1960, the Apex Court has laid down that such actions of police are in blatant violation of human rights. The Apex Court has referred the provisions of International Covenant on Civil and Political Rights, 1966 to which India is a party. The Apex Court has laid down that Articles 21 and 226 of Constitution of India make it not only possible but necessary for the Court to grant compensation in such cases. Even mistake cannot be excused in such cases. This Court is not expected to decided as to whether there was the malice. So, this Court holds that compensation needs to be given to the petitioners.””

“Similar observations are there in Criminal Writ Petition No.1107 of 2018, (Imtiyajbi w/o Akbar Shah Vs. The State of Maharashtra and others):

“9) Learned counsel for the petitioner placed reliance on the observations made by the Apex Court in following three cases.

(1) Rudul Sah v. State of Bihar [AIR 1983 SC 1086];

(2) Arvinder Singh Bagga v. State of U.P. [AIR 1995 SC 117]; and,

(3) S.Nambi Narayanan v. Siby Mathews [2018 AIR SC 5112]. 

In all the three cases the Apex Court had considered the provision of Article 21 of the Constitution of India and had held that in such cases person who is illegally detained is entitled to get compensation from the State. In the case reported as Ram Dass Ram v. State of Bihar, [AIR 1987 SC 1333] the Supreme Court held that such detention would be unjustified. It can be said that the authority ought to have acted confidently and there was nothing in the operative order, which could have confused the authority. In such cases the State needs to be made to pay compensation first and then the State can be allowed to recover the amount from the officer who has committed error or who was found negligent in taking urgent steps for release of the prisoner.”

The powers available, which are in Chapter VIII of the Code of Criminal Procedure are invested either in police officer of higher rank or some revenue officer and as they have no training, when superior police officer issue some instructions like done in the present matter and orders of the aforesaid nature are passed. In any case, it needs to be made known to Executive Magistrate that he has passed illegal order and he had no jurisdiction to pass such order. 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. However, the State needs to obtain the explanation and fix some kind of responsibility in such cases. It is serious mistake committed by the Executive Magistrate. 

DIRECTIONS OF THE COURT

The Hon’ble Court issued the following directions. The Respondents were directed to pay Rupees Fifty Thousand only to each Petitioner as compensation for illegal detention. The court held it is open to the State to fasten responsibility on concerned police officer and the then Executive Magistrate and recover amount. The rule is made absolute in those terms.

AUTHOR OF THE ARTICLE