Sambhaji Achyutrao Patil vs The State Of Maharashtra And Ors

crwp-1762-2013.doc

BDP-SPS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BHARAT DASHARATH PANDIT CRIMINAL APPELLATE JURISDICTION Digitally signed by BHARAT DASHARATH PANDIT CRIMINAL WRIT PETITION NO. 1762 OF 2013 Date: 2024.11.25 19:50:52 +0530

Sambhaji Achyutrao Patil ] Age: 52 years, Occupation: Police ] Inspector, Residing at: Plot No.34, ] Koyana Sanmitra Co-operative ] Housing Godoli, Vilaspur, ] Taluka: Satara, District : Satara. ] .... Petitioner.

V/s

1] The State of Maharashtra ] [Through the Additional Chief ] Secretary, Home Department, State ] of Maharashtra, Mantralaya, Mumbai] ] ] 2] Director General of Police, ] State of Maharashtra, having office ] at Maharashtra Police Headquarters ] Shahid Bhagatsingh Marg-1, Colaba ] Mumbai. ] ] 3] The Special Inspector General of ] Police, Kolhapur Police Range, ] having Office at : Office of the ] Special Inspector General of Police ] Kolhapur Police Range, Kasba Bawda, ] Kolhapur. ] ] 4] The Superintendent of Police, Satara ] having Office at: Police Head Quarters ] 73, Malhar Peth, Satara, District Satara. ] ] 5] The Satara City Police Station ] District Satara. ]

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6] The Karad City Police Station ] District Satara. ] ] 7] Shri K.M.M. Prasanna ] Superintendent of Police, Satara ] having office at: Police Head Quarters ] 73, Malhar Peth, Satara, District Satara. ] ] 8] Shri Amol S. Tambe ] Additional Superintendent of Police, ] Satara, having Office at: Police Head ] Quarters 73, Malhar Peth, Satara, ] District Satara. ] ..... Respondents. ---- Mr. Sambhaji A. Patil, petitioner-in-person, present.

Mr. Ajay S. Patil, Additional Public Prosecutor for respondent nos. 1 to 6.

Mr. Ramprasad V. Gupta a/w Mr. Akshay S. Malviya & Mr. Rohit Vaishya, Advocates for respondent No.7.

Mr. Shekhar Jagtap a/w Ms. Sairuchita Chowdhary & Mr. Ishan Paradkar i/b J. Shekhar Associates, Advocates for respondent no.8. ---- CORAM: A.S. CHANDURKAR & RAJESH S. PATIL, JJ.

Date on which the arguments were concluded: 27/08/2024 Date on which the judgment is pronounced: 25/11/2024

JUDGMENT ( Per A.S. Chandurkar, J.)

1] The petitioner, a police officer has filed this writ petition under

Article 226 of the Constitution of India raising a grievance that his

illegal arrest and detention on 13/03/2013 at the hands of the

respondent no.8 - Investigation Officer has resulted in violation of his

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fundamental rights. The petitioner seeks compensation for his

alleged illegal arrest and detention and also conduct of inquiry against

the concerned police officers who, according to him, are responsible

for his illegal arrest and detention.

2] It is the case of the petitioner that he was discharging duties as

an Officer-in-charge of Karad City Police Station from 09/06/2008. On

15/01/2009 First Information Report bearing No.19 of 2009 under

the provisions of Sections 302, 307, 120-B, 201 read with Section 34

of the Indian Penal Code (for short, the Penal Code) as well as under

the provisions of the Arms Act, 1919 came to be registered. The

petitioner as an Investigation Officer conducted necessary inquiries

and filed the charge-sheet within the prescribed time on 13/04/2009.

On noticing the need to file a supplementary charge-sheet, the

petitioner issued a communication to the Under Secretary to the

Additional Chief Secretary in that regard on 20/06/2012. The

petitioner was thereafter transferred from Karad City Police Station to

the Local Crime Branch, Satara on administrative grounds after which

further investigation in the aforesaid crime was undertaken by Police

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Inspector Shri Muluk from 26/10/2010. He continued as an

Investigation Officer till May 2012 after which the investigation was

handed over to the Deputy Superintendent of Police Shri B.S.

Tamgadge. While the petitioner was serving as Police Inspector

attached to the Security Branch of Usmanabad District Police, a fax

message was received from the Additional Superintendent of Police

with regard to the aforesaid crime. According to the petitioner, he

attended office of the Additional Superintendent of Police on

08/01/2013 and answered various queries made to him with regard

to the investigation carried out in Crime No.19 of 2009. The petitioner

again attended the office of the Additional Superintendent of Police on

13/03/2013. On that day, at about 2.00 P.M. he was informed by the

8th respondent that he had been placed under arrest in connection

with offence punishable under Sections 201 and 218 of the Penal

Code with regard to Crime No.19 of 2009. No Memorandum of Arrest

was prepared immediately and the petitioner was detained in the

office of the respondent no.8. Despite a request made by the

petitioner to inform his near friends to come to the office of the

respondent no.8 and furnish security and bail bonds, that exercise was

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not undertaken.

3] On 14/03/2013, the petitioner was produced in the Court of the

learned Judicial Magistrate, First Class. A request was made for

seeking police custody remand of various accused in Crime No.19 of

2009 which included the petitioner. The learned Judicial Magistrate,

First Class on 14/03/2013 considered the said request made by the

Investigation Officer. It was found that there was no material placed

to indicate any actual participation of the petitioner in the conspiracy

or murder of deceased Sanjay Patil with regard to which Crime No.19

of 2009 had been registered. The learned Magistrate further observed

that allegations levelled against the petitioner were with regard to

alleged lacunae kept by him during the course of investigation which

would amount to a distinct offence and which could not be clubbed

with the main offence. The police remand report showed that

offences under Sections 201, 218 and 221 of the Penal Code were

attracted insofar as the petitioner was concerned. Since these were

bailable offences, police custody remand was denied. The petitioner

was remanded to Magisterial Custody remand till 28/03/2013.

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The petitioner immediately moved an application for grant of

bail before the learned Magistrate on 14/03/2013. The learned

Magistrate observed that the offences attributed against the petitioner

were under Sections 201, 218 and 221 which were bailable offences

and hence directed his release on furnishing a bond of Rs 15000/-

with conditions.

4] The State of Maharashtra being aggrieved by the order dated

14/03/2013 passed by the learned Magistrate on the remand report,

preferred a Revision Application under Section 397 read with Section

439(2) of the Code of Criminal Procedure, 1973 (for short, the Code)

before the Sessions Court. By the judgment dated 22/03/2013 the

learned Additional Sessions Judge, Satara held that the order passed

by the learned Magistrate was legal and proper inasmuch as the

offences alleged to have been committed by the petitioner were

bailable in nature. Accordingly, the Revision Application preferred by

the State of Maharashtra came to be dismissed.

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Against the order remanding the petitioner to Magisterial

Custody as passed on 14/03/2013 by the learned Magistrate, the State

of Maharashtra filed a Revision Application under Section 439(2) of

the Code praying that the order granting bail be set aside and the

petitioner be remanded for custodial interrogation. The learned

Additional Sessions Judge, Satara on 22/03/2013 rejected the said

application by observing that the order passed by the learned

Magistrate granting bail to the petitioner was legal and proper

requiring no interference. It was further observed that even assuming

that said offences alleged against the petitioner were non-bailable, his

custodial interrogation was not necessary. Thereafter, the petitioner

on 30/03/2013 issued a communication to the Director General of

Police raising a grievance as regards his illegal arrest and detention in

the aforesaid matter and prayed for appropriate relief in the form of

grant of compensation and also for an investigation to be held in the

matter of his illegal arrest and detention. It is in the aforesaid factual

backdrop that the petitioner has filed this criminal writ petition

seeking the reliefs referred to hereinabove.

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5] The petitioner-in-person after referring to the relevant factual

events that transpired during the time he was the Investigation Officer

in Crime No. 19 of 2009 from 15/01/2009 till 26/08/2010 submitted

that his arrest and detention on the ground that the investigation

carried out by him was defective was contrary to law. Referring to the

provisions of Section 45 (2) of the Code it was submitted that in

absence of any sanction of the State Government, the petitioner who

was a member of the police force could not have been arrested.

Reference was made to the Notification dated 23/05/1979 that was

issued by the State Government in exercise of powers under Section

45(2) of the Code that mandated obtaining such consent prior to

making any arrest. Since the investigation was undertaken by the

petitioner in discharge of official duties, sanction of the State

Government ought to have been obtained before arresting him. In that

regard reliance was placed on the order dated 24/11/2015 passed in

Criminal Anticipatory Bail Application No.1784 of 2014 [ Ravindra K.

Manjare vs. The State of Maharashtra] wherein the Notification dated

23/05/1979 was considered. Further, the requirements of Section 41B

of the Code had not been duly satisfied. The Investigation Officer

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failed to prepare the Memorandum of Arrest that was required to be

attested by atleast one witness who was a family member of the

petitioner. Copy of the Arrest Memo was also not served on the

petitioner. The reasons for the petitioner's arrest were also not

recorded in the Arrest Memo. As a result, the law laid down by the

Supreme Court in D.K. Basu vs. State of West Bengal (1997) 1 SCC

416 was violated. It was further submitted that after his arrest, the

petitioner was not produced either before a Magistrate having

jurisdiction in the case or before the Officer-in-charge of a Police

Station as required by Section 56 of the Code. Referring to the

statement made by the respondent no.7 - Supertintendent of Police

dated 30/07/2013 it was pointed out that this position was duly

admitted. It was then submitted that there was breach in the

compliance of the provisions of Section 50 of the Code inasmuch as

the particulars of the petitioner's arrest as well as the grounds for his

arrest were not indicated. Reliance in this regard was placed on the

judgment of the Supreme Court in Prabir Purkayastha vs. State (NCT

of Delhi) 2024 INSC 414 wherein the difference between the phrase

'reasons for arrest' and 'grounds of arrest' had been indicated. In

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absence of the grounds of arrest of the petitioner being indicated,

there was non-compliance with the provisions of Section 50 of the

Code. Yet another patent illegality was that though the accusations

made against the petitioner were in respect of offences that were

bailable in nature, the petitioner's bail application came to be rejected

by the respondent no.8 - the Investigation Officer in an illegal

manner. Referring to the remand order dated 14/03/2013 passed by

the learned Judicial Magistrate First Class, Court No.2 it was pointed

out that in paragraph 9 of the order it was clearly observed that the

police remand report indicated that it was only the offences

punishable under Sections 201, 218 and 221 of the Penal Code that

were attracted and that all the said offences were bailable in nature.

This fact had been specifically mentioned by the petitioner in his

application for bail made at 18.25 hrs on 13/03/2013 before the

Investigation Officer. As a result of refusal to release the petitioner on

bail, he had to suffer illegal arrest and detention. The petitioner thus

claims that he was required to suffer illegal detention for about twenty

hours. The petitioner therefore was justified in seeking the holding of

an enquiry against the concerned police officers.

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In view of the illegal manner of the petitioner's arrest and

detention, there was a breach of the provisions of Article 21 of the

Constitution of India thus giving rise to the present claim for

compensation. Placing reliance on the decisions in Smt Mohini

Naraindas Kamwani & Anr. vs. Sr. Police Inspector, Vashi Police Station

& Others, 2014 ALL MR (Cri) 93, Miss Veena Sippy vs. Mr. Narayan

Dumbre & Ors., 2012 ALL MR (Cri) 1263, Niraj Ramesh Jariwala &

Ors vs. Mahadeo Pandurang Nikam & Others, 2013 (2) Bom CR (Cri)

260 and Rizwan Ahmed Javed Shaikh and Others vs. Jammal Patel

and Others, (2001) 5 SCC 7, it was submitted that the petitioner was

entitled for the reliefs prayed for in the writ petition. It was pointed

out that the petitioner was a decorated Police Officer having been

awarded the President's Police Medal for meritorious service along

with various other awards. As a result of his illegal arrest and

detention, the petitioner and his family members had suffered mental

trauma. After his retirement, the petitioner lost various job

opportunities due to his illegal arrest. On the aforesaid basis therefore

the petitioner prayed for grant of monetary compensation of Rs 10

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lakhs.

6] Shri Ajay Patil, the learned Additional Public Prosecutor for the

respondent nos.1 to 6 - State of Maharashtra and its officers opposed

the prayers made in the writ petition. He submitted that insofar as

prayer clause (a) was concerned, the necessay inquiry as sought by

the petitioner was conducted during the period from 21/09/2013 to

30/04/2014. In the said inquiry no illegality whatsoever in the arrest

of the petitioner was found and the matter was thereafter closed. He

therefore submitted that nothing survived for consideration insofar as

prayer clause (a) was concerned. As regards prayer clause (b), it was

submitted that the petitioner sought to rely upon the observations

made in various orders passed while deciding the prayer for grant of

remand and thereafter for grant of bail. The observations made in the

said orders were of a prima facie nature and the petitioner could not

rely upon the same in support of his prayer for grant of compensation.

The petitioner was arrested after following the due process of law and

after complying with all mandatory requirements. In absence of any

illegality being shown with regard to his arrest and detention, the

petitioner was not entitled to any relief whatsoever. Since the arrest

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and detention of the petitioner was in accordance with law, no claim

for compensation could be made. In that regard reliance was placed

on the decsion in State of Maharashtra and Others vs. Tasneem

Rizwan Siddiquee AIR 2018 SC 4167. It was thus submmitted that

the writ petition was liable to be dismissed.

7] Shri Ramprasad Gupta, the learned counsel appearing for

respondent no.7 - Superintendent of Police, Satara, besides adopting

the submissions made on behalf of the State of Maharashtra submitted

that on the allegations made by the petitioner, an inquiry was held by

the Special Inspector General of Police wherein nothing illegal was

found. Hence prayer clause (a) did not survive. It was further

submitted that the petitioner had availed various other remedies to

seek redressal of his grievances. He had filed a criminal complaint by

taking recourse to the provisions of Section 156(3) of the Code but no

relief was granted by the learned Magistrate. The Revision Application

preferred by the petitioner challenging the said order was also

rejected. Writ Petition No.1908 of 2016 preferred by the petitioner

challenging those orders was pending. The petitioner had also

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approached the State Human Rights Commission raising a grievance

with regard to his alleged illegal arrest. No relief was granted in the

said proceedings. It was pointed out that though the petitioner had

addressed a complaint to the respondent no.7, there was no grievance

made against the said respondent therein. The provisions of Sections

50 and 56 of the Code had been duly complied with and the

procedure prescribed had been followed while arresting the petitioner.

The petitioner had signed the Arrest Memo dated 13/03/2013

alongwith panch witnesses. No grievance whatsoever was made by the

petitioner at that point of time. It was thus submitted that in absence

of any case being made out by the petitioner for grant of the reliefs

sought, the writ petitoin was liable to be dismissed.

8] Shri Shekhar Jagtap, the learned counsel appearing for

respondent no.8 - Investigation Officer in addition to the submissions

made by the learned Additional Public Prosecutor relied upon the

inquiry report as submitted by the Special Inspector General of Police

dated 21/09/2013. He submitted that after considering the matter in

detail, no substance was found in the grievance raised by the

petitioner. He denied that there was any illegality whatsoever in the

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arrest and detention of the petitioner. The petitioner had acted as

Investigation Officer during the period from 15/01/2009 to

25/08/2010. Though the petitioner had filed the final investigation

report on 3/2/2010, the name of an accused, Shri Uday Patil had not

been mentioned therein. After the petitioner was transferred and the

investigation was subsequently handed over to the respondent no.8 in

September 2012, he had undertaken further investgiation. The said

accused Shri Uday Patil was arrested. Considering the involvement of

the petitioner in the alleged offence he was also arrested on

13/03/2013. Reference was made to the stand taken by respondent

no.8 while opposing the prayer for bail made by the petitoner on the

said date. It was submitted that considering the alleged involvement

of the petitioner so as to attract the provisions of Section 120-B of the

Penal Code, he was righlty refused bail. Reference was also made to

the remand order dated 14/03/2013 wherein it was recorded that the

petitioner had no grievance with regard to his treatment while under

arrest. It was thus submitted that after following the due process of

law, the petitioner came to be arrested. The provisions of Section

45(2) of the Code were not attracted in the facts of the present case

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since the said provision related to 'maintenance of public order' with

which the petitioner in the present case was not concerned. Similarly,

the provisions of Section 160 of the Maharashtra Police Act, 1951 (for

short, the Act of 1951) were also not applicable. The petitioner was

merely trying to delay the conclusion of the criminal trial wherein his

role in the said crime would be established. The petitioner had also

approached the State Human Rights Commission but was not granted

any relief whatsoever. Sanction under Section 197 of the Code for

prosecuting the petitioner for his alleged involvement in Crime No.19

of 2009 was granted on 24/10/2013. However, the petitioner had

challenged the said order in Writ Petition No.4766 of 2017 and on

03/08/2018 the effect of the said order had been stayed. To support

his contentions, the learned counsel placed reliance on the judgment

of the Division Bench in Gopal Ramdas Shetye vs. The State of

Maharashtra passed in Criminal Writ Petition No. 3960 of 2015

decided on 5/5/2017, Krishna Lal Chawla and Others vs. State of

Uttar Pradesh and Another, (2021) 5 SCC 435 and Ram Nath Singh

vs. State of U.P. and Others, 2002 ALL LJ 1847 . It was thus

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9] In the aforesaid backdrop, we have heard the petitioner-in-

person as well as the learned counsel appearing for the respondents

opposing the writ petition. We have also perused the affidavit-in-reply

filed on behalf of the respondent nos. 1, 7 and 8 as well as the

affidavits-in-rejoinder filed by the petitioer. At the outset, we may

note that by prayer clause (a) the petitioner had sought a direction to

be issued to the State of Maharashtra through the Ministry of Home

Affairs to initiate an inquiry against the respondent no. 8 with

regard to his illegal arrest and detention. During pendency

of the writ petition, an inquiry was held on the complaint made by

the petitioner and a report to that effect was prepared by the Special

Inspector General of Police, Kolhapur Region. This report dated

21/09/2013 was submitted to the Director General of Police,

Maharashtra State, Mumbai. Since cognizance of the petitioner's

complaint has been duly taken after which an inquiry was conducted

and a report to that effect has been submitted to the Director General

of Police, Maharashtra State, Mumbai, prayer clause (a) as made

stands answered.

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10] Coming to prayer clause (b) in the writ petition whereby the

petitioner seeks compensation of an amount of Rs 10 lakhs from

respondent nos. 1, 2, 7 and 8 for his illegal arrest and detention

resulting in violation of his fundamental rights, suffice it to observe

that the law in this regard is well settled. A public law remedy in the

matter of seeking compensation on account of violation of the

fundamental rights guaranteed under Article 21 of the Constitution is

now recognised. In D.K. Basu (supra) it has been held that in an

appropriate case, the remedy for redressal of established infringement

of the fundamental right to life of a citizen by public servants and the

State gives rise to a vicarious liability for such act. This remedy under

the public law jurisdiction is in addition to the traditional remedies

and not in derogation of the same. These principles have been noted

in Rini Johar and another vs. State of Madhya Pradesh and Others,

(2016) 11 SCC 703 by the Supreme Court. The same have been

followed by various co-ordinate Benches of this Court, which decisions

have been relied upon by the petitioner. It is therefore clear that in a

case of gross violation of the fundamental right under Article 21 of the

Constitution of India, compensation if awarded would have to be paid

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by the State Government with a liberty to it to recover the same from

officers found guilty of dereliction of duty by following the due

process of law. It is on this premise that the claim made by the

petitioner deserves consideration.

11] The facts on record indicate that when the petitioner was

serving as Officer-in-charge of Karad City Police Station, District

Satara, Crime No.19 of 2009 came to be registered under provisions

of Sections 302, 307, 120-B, 201 read with Section 34 of the Penal

Code. The petitioner was the Investigation Officer and on completion

of investigation he filed the charge-sheet on 13/04/2009. Further

investigation in connection with the said crime was also carried out by

the petitioner under Section 173(8) of the Code after which additional

material was submitted by him on 03/02/2010. The petitioner was

thereafter transferred as a result of which further investigation in the

said crime was conducted by Police Inspector Shri Muluk from

26/10/2010 to May 2012. On 01/09/2012 pursuant to an order

passed by respondent no.7, the investigation was handed over to the

respondent no.8. It is at that point of time that the petitioner was

called upon to explain the manner of investigation undertaken by him.

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During the course of such investigation, the petitioner appeared before

the respondent no.8 on 13/03/2013 and at about 2.00 P.M. the

petitioner was informed that he was being arrested in connection with

offences punishable under Sections 218 and 201 of the Penal Code.

The petitioner was arrested at about 17.15 hours on 13/03/2013. He

was thereafter released on bail on 14/03/2013 pursuant to the order

passed by the learned Judicial Magistrate, First Class remanding him

to Magisterial Custody. It is with regard to this period that the

petitioner has sought to raise a grievance of his illegal arrest and

detention in the matter. In the present proceedings we are concerned

with the events that transpired from the time of the petitioner's arrest

and his subsequent enlargement on bail. The grievance raised by the

petitioner is with regard to the illegal manner of his arrest which was

effected in a manner contrary to the law laid down by the Supreme

Court of India.

12] On the basis of the material on record it would be necessary

to consider whether the arrest and detention of the petitioner was in

accordance with law or not.

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of the Code - In this regard, it is to be noted that under

Section 45(1) of the Code, there is a prohibition for

arresting a member of the Armed Forces of the Union for

anything done or purported to be done in the discharge of

his official duties without obtaining the consent of the

Central Government. Under Section 45(2), the State

Government can make the provisions of Section 45(1)

applicable to members of the Force charged with the

maintenance of public order by issuing a notification. On

such Notification being issued, consent of the State

Government is required to be obtained. Notification dated

23/05/1979 has been issued by the Home Department of

the State Government making such protection available to

Police Officers as defined under the Act of 1951 who are

charged with maintenance of public order. It is not in

dispute that the petitioner is a Police Officer defined under

Section 2(11) of the Act of 1951. In this regard, it has

been specifically pleaded by the petitioner that no prior

consent of the State of Maharashtra was obtained by the

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respondent no.8 before arresting the petitioner. There is

no specific denial of this aspect nor has it been shown by

the respondent no.8 that after obtaining necessary consent

of the State Government under Section 45(2) of the Code,

such arrest of the petitioner was made.

It was urged on behalf of the respondent no.8 that

the Notification dated 23/05/1979 issued by the Home

Department in exercise of powers conferred by Section

45(2) of the Code pertains to a member of the force in the

State "charged with maintenance of public order". Hence,

the petitioner could not take advantage of this Notification

dated 23/05/1979 as he was merely acting as an

Investigation Officer and was not concerned with the

"maintenance of public order". The petitioner has

however relied upon the decision in Rizwan Ahmed Javed

Shaikh and Others (supra) to contend that the Notification

dated 23/05/1979 was applicable inasmuch as the

petitioner, as an Investigation Officer, was discharing his

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official duties and was concerned with "maintenance of

public order".

In the aforesaid decision, the Supreme Court

considered the Notification dated 02/06/1979 also issued

by the Home Department in exercise of the power

conferred by Section 197(3) of the Code thereby making

the provisions of sub-section (2) of Section 197 of the

Code applicable to members of the force in the State

charged with the "maintenance of public order".

Reference was made to the judgment of the Gujarat High

Court in Bhikhaji Vaghaji vs. L.K. Barot and Others ,

(1981) 22 Gujarat Law Reporter 956. The High Court

considered the Preamble of the Act of 1951 wherein it was

stated that the Act was enacted to consolidate and amend

the law relating to the regulation of the police force and

exercise of powers and performance of functions by the

State Government and by the members of the said force

for the maintenance of public order. It was further

observed that it was the duty of every member of the

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police force to see that public order is maintained. The

Supreme Court agreed with the aforesaid observations. It

further held that the real test to be applied to attract

applicability of Section 197(3) of the Code was whether

the act done by the police officer alleged to constitute an

offence was so done by the public officer while acing in

his official capacity.

In our view, the aforesaid legal position would also

apply to the Notification dated 23/05/1979 in the context

of the provisions of Section 45(2) of the Code. It cannot

be disputed that the arrest of the petitioner was on

account of the alleged faulty investigation carried out by

him in Crime No.19 of 2009. This fact is also clear on

reading the order dated 13/03/2013 passed by the

respondent no.8 while rejectig the petitioner's request for

his release on bail. The investigation was carried out by

the petitioner as an Investigation Officer and was thus an

act undertaken in discharge of official duty. Discharge of

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official duty while undertaking such investigation would

form a part of maintenance of public order. Consequently,

the protection granted by Section 45(1) of the Code

would be available and arrest of such police officer ought

to be preceded by consent of the State Government. It is

thus clear that the arrest of the petitioner is without

obtaining necessary consent of the State Government as

required by Section 45(2) of the Code.

(b) As regards breach of Section 50 of the Code -

Under the provisions of Section 50(1) of the Code, on

arrest of a person without warrant, it is necessary for the

police officer making such arrest to forthwith

communicate to him full particulars of the offence for

which he is arrested or other grounds for such arrest. It

is the specific case of the petitioner that there has been a

breach in this regard as full particulars of the offence

leading to his arrest or the grounds of arrest have not been

made known to him. These averments can be found in

paragraph 3(o) of the writ petition. The same read as

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under:

"3(o) That the Petitioner states that though he was arrested at 2 p.m. in the afternoon, the arrest memo was prepared between 5 p.m. and 05.15 p.m. The Petitioner further states that the Respondent No 8 had informed the Petitioner that he was arrested in connection with the offences punishable u/s 201, 218 of The IPC. The aforesaid two offences were bailable in nature and in view of this analogy as also the mandatory provision of Section 50(1) and Sec. 50 (2) of The Cr.P.C. it was mandatory upon the Respondent No 8 to inform the Petitioner regarding that fact and full particulars of the offence and grounds of arrest as well as that the offence was bailable and that he had the right to be released on bail. But the Respondent No. 8 did not furnish any information mentioned in Sec. 50 (1) and Sec. 50 (2) of the Cr.P.C. These are the mandatory provisions which respondent no. 8 did not comply with. The Respondent No 8 also did not comply with the provisions of Sec. 56 of the Cr.P.C. which are mandatory provisions."

In the reply filed on behalf of respondent no.8, the

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allegations as made by the petitioner have been denied in

paragraph 18. The said paragraph reads as under:

"18. I say that the all allegations made by petitioner in both Para 3(o) of the Petition are not true and correct and same is denied and strongly opposed by me. The petitioner wrongly interpreted his role and claimed bail by filing an application before me immediately after his arrest. I specifically arrested him in the said murder case without bifurcating any independent liability of the Petitioner, as lacunae in the investigation would be found by the Competent Court during trial as lacunae without any malicious intentions and thereby the involvement of the Petitioner could be reduced by the Competent Court at the appropriate stage. However, in my opinion, the Petitioner neither acted in good faith nor investigated the case with bonafide and fair manner, rather the Petitioner and the accused no. 11 continued their conspiracy for concealing the material facts from the prosecution case since inception and thereby the Petitioner had commenced investigation with weak motive."

It has however not been stated that the full particulars of

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the offence for which the petitioner was arrested or other

grounds for arrest were informed to the petitioner. The

petitioner has relied upon the copy of his Arrest Memo

dated 13/03/2013 as well as the Station Diary of Satara

City Police Station also dated 13/03/2013 to substantiate

the aforesaid ground. Perusal of the Arrest Memo and

panchnama do not indicate that the particulars of the

offence or grounds of arrest as contemplated by Section

50(1) of the Code have either been mentioned or had been

conveyed to the petitioner.

The Supreme Court in Prabir Purkayastha (supra)

has noted the significant difference in the phrase 'reasons

for arrest' and 'grounds of arrest'. 'Grounds of arrest'

ought to contain all necessary details in the hands of the

Investigation Officer which necessitate the arrest of the

accused. These are required to be conveyed to the arrested

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Reference can also be made to the decision in Rajesh s/o.

Mohanlal Kothari and Ohers vs. The State of Maharashtra

and Another, 2020 ALL MR (Cri) 680 relied upon by the

petitioner wherein it has been held that compliance of the

provisions of Section 50 of the Code is mandatory in

nature. It is thus clear that there has been a failure on the

part of respondent no.8 in intimating the full particulars of

the offence for which the petitioner was arrested or other

grounds of arrest to the petitioner resulting in breach of

Section 50 of the Code.

(c) As regards breach of Section 56 of the Code: As per

Section 56 of the Code, a police officer making arrest

without warrant is required to take or send the person

arrested before the Magistrate having jurisdiction in the

case or before the officer-in-charge of a Police Station

without unnecessary delay. According to the petitioner, the

Investigation Officer ought to have produced the petitioner

after his arrest before the Supertintendent of Police -

respondent no.7 as he was superior in rank than the

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Investigation Officer. This was not done resulting in breach

of the requirements of Section 56 of the Code. In this

regard, it is necessary to refer to the statement of the

respondent no.7 dated 30/07/2013 made before the

Special Inspector General of Police, Kolhapur Range,

Kolhapur. In paragraph 3 thereof, he has stated as under:-

"03. In view of the provision of section 36 of Cr.P.C. the Superintendent of Police being superior in rank to an officer in charge of a Police Station, may exercise the same powers, throughout the local area of the district, as may be exercised by such officer within the limits of his station. It is also a fact that in view of the provision of section 56 of Cr.P.C. a police officer making an arrest without warrant is required to take or send the person arrested before a magistrate having jurisdiction in the case or before the officer in charge of a Police Station, without unnecessary delay. Additional SP Shri Amol Tambe, who had effected the arrest of the Applicant independently, however, did not bring or send the arrested person (Applicant) before me, as an officer in charge of the Police Station and thus the question of releasing the arrested

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person by me does not arise."

From the aforesaid statement, it becomes clear that in the

light of the provisions of Section 36 of the Code, the

respondent no.7 was superior in rank to the respondent

no.8. After the arrest of the petitioner on 13/03/2013

without an arrest warrant, the respondent no.8 ought to

have produced the petitioner before his superior officer,

respondent no.7. The petitioner however was not so

produced which position is beyond doubt in view of the

statement of the responent no.7. It is thus clear that had the

petitioner been produced before the respondent no.7, he

would have had an opportunity to exercise power under

Section 56 of the Code. It therefore cannot be said that

there has been any failure on the part of the respondent no.7

in not exercising power under Section 56 of the Code.

It is however seen that the respondent no.8 failed to

produce the petitioner before the respondent no.7 in terms

of Section 56 of the Code. The petitioner having been

arrested on 13/03/2013 without warrant by the respondent

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no.8, he ought to have been produced before the respondent

no.7 who was a superior officer in rank to the respondent

no.8. Section 56 of the Code requires such steps to be taken

'without unnecessary delay' thus indicating the

mandatoriness of the said provision. It is thus clear that

there has been a breach of the provisions of Section 56 of

the Code after the petitioner's arrest insofar as the

respondent no.8 is concerned.

(d) As regards breach of law laid down by the Supreme

Court: In this regard, it is to be noted that under Section 41

of the Code, a discretion is given to a police officer who may

without an order from the Magistrate and even without a

warrant arrest any person for the contingencies stated

therein. In M.C.Abraham vs. State of Maharashtra, (2003) 2

SCC 649, it has been held that even though the power

conferred by Section 41 of the Code is discretionary in

nature, a police officer is not always bound to arrest an

accused even if the allegation made against him is of having

committed a cognizable offence. Since an arrest is in the

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nature of an encroachment on the liberty of a citizen and it

also affects his reputation and status, such discretionary

power has to be cautiously exercised. In Siddharam

Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC

694, the Supreme Court has held that personal liberty is a

very precious fundamental right and it should be curtailed

only when it becomes imperative according to the peculiar

facts and circumstances of the case. In case the arrest of an

accused is imperative, in that event, the arresting officer

must clearly record the reasons for the arrest of the accused

before the arrest in the case diary. In exceptional cases

where it becomes imperative to arrest the accused

immediately, the reasons could be recorded in the case diary

immediately after the arrest is made without loss of any time

The remand papers pertaining to the petitioner

indicate that he was placed under arrest at 17.15 hours on

13/03/2013. However, the entry in the Station Diary has

been taken at 23.30 hours on 13/03/2013. It is seen from

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the record that after the petitioner was transferred from

Satara and was discharging duties in Usmanabad District,

the respondent no.8 on 08/01/2013 issued a questionnaire

with regard to the nature of investigation undertaken by the

petitioner. About seventeen queries were made to the

petitioner and the same relate to deficiencies in the

investigation in Crime No.19 of 2009. It thus becomes clear

that the petitioner was called upon to answer the queries by

appearing before the respondent no.8. The record does not

indicate that it was an exceptional case where it became

imperative for the Investigation Officer to arrest the

petitioner immediately. The communication dated

08/01/2013 indicates that the respondent no.8 sought a

written explanation from the petitioner. The petitioner

submitted his say on 13/03/2013. Though it is not shown

that it was imperative to immediately arrest the petitioner,

the Station Diary entry was subsequently taken at 23.30

hours on 13/03/2013 which is about more than six hours

after his arrest at 17.15 hours. We also find that in terms of

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the law laid down in M.C. Abraham (supra), the power of

arrest has not been cautiously exercised. This is for the

reason that the accusations against the petitioner as can be

gathered from the rejection of his bail application by the

Investigation Officer on 13/03/2013, remand papers dated

14/03/2013 and the orders passed on the prayer for remand

by the learned Magistrate all indicate that the same were in

relation to the provisions of Sections 201, 218 and 221 of

the Penal Code. All these offences are bailable in nature. It

therefore becomes clear from the aforesaid material on

record that the power of arrest has been exercised by the

respondent no.8 without exercise of due discretion as

expected. The arrest of the petitioner though effected at

17.15 hours on 13/03/2013, the Station Diary entry has

been taken after more than six hours. The reasons for the

petitioner's arrest have also not been indicated in the

Station Diary entry. All these shortcomings indicate that

there has been a breach of the law laid down by the

Supreme Court in the decisions referred to hereinabove. In

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these facts, the ratio of the decisions in Tasneem Rizwan

Siddiquee, Krishna Lal Chawla and others and Gopal

Ramdas Shetye (supra) cannot be made applicable.

13] Thus from the aforesaid discussion, we find that the petitioner

was arrested in an illegal manner and thereafter detained which was

not in accordance with the provisions of Sections 45(2), 50 and 56 of

the Code as well as the law laid down by Supreme Court of India. In

D.K. Basu (supra) it has been held that monetary compensation is an

appropriate remedy for redressal of established infringement of the

fundamental right to life of a citizen by public servants and the State

is vicariously liable for their acts. It is further held that in the

assessment of compensation, the emphasis has to be on the

compensatory element and not on the punitive element. A case

therefore has been made out by petitioner for seeking compensation in

public law on account of his illegal arrest that has resulted in violation

of his fundamental rights under Article 21 of the Constitution of India.

The petitioner remained in custody for about twenty hours. He is a

recipient of the President's Police Medal on 26/01/2004 for his

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meritorious service. He has also received the Director General of

Police Insignia on 15/08/2004 for rendering excellent service.

14] We therefore find the petitioner is entitled to receive

reasonable compensation of an amount of Rs 2 lakhs from the

respondent no.1. The said amount shall be paid to the petitioner

within a period of eight weeks from today failing which same shall

carry interest @ 6% per annum till realisation. Though the amount of

compensation has been directed to be paid by the respondent no.1, it

would be open for the State Government to recover the same from the

officer/s found guilty of dereliction of duty by following the due

process of law.

15] Rule is made partly absolute in aforesaid terms.

[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J.]

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