2001 ALL MR (Cri) 1731
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
J.N. PATEL AND S.K. SHAH, JJ.
Shri. Walmik S/O Deorao Bobde Vs. The State Of Maharashtra & Anr.
Criminal Writ Petition No.328 of 2000
7th August, 2001
Petitioner Counsel: S/Shri. A. D. BANDRE, INDRANIL DAMLE
Respondent Counsel: Mrs. DANGRE
(A) Criminal P.C. (1973), Ss.70,87 -Warrant of arrest - Non-bailable warrant should not ordinarily be issued in the first instance - Such a stringent measure is applied only as last resort - Magistrate before signing such a warrant should satisfy himself whether such a warrant is really required to be issued to procure presence of accused facing trial before it. (Para 8)
(B) Constitution of India, Art.21 - Criminal P.C. (1973), Ss.70, 87 - Arrest by non-bailable warrant in the first instance - Even though arrest is by competent court it violates not only his fundamental rights but such action deserves to be condemned being taken in utter disregard to human rights of an individual citizen. (Para 9)
(C) Constitution of India, Art.21 - Criminal P.C. (1973), S.87 - Wrongful arrest, detention and confinement - Person who was already acquitted in criminal case for charges under S.420 r.w.34 IPC some nine years before was arrested pursuant to a non-bailable warrant of arrest inadvertently prepared by the clerk of the court - Held state could not defend this wrongful act by taking a plea of unintentional and bonafide action - State directed to pay Rs. 10,000/- to the petitioner as compensation and costs quantified at Rs.5000/-. (Paras 10,11)
J. N. PATEL, J. :- Heard, Shri. A. D. Bandre, the learned counsel for the petitioner and Mrs. Dangre, A.P.P. for State. The petitioner Walmik Deorao Bobde, is required to approach this Court by invoking its extra ordinary jurisdiction under Article 226 and 227 of the Constitution of India, being aggrieved by his wrongful confinement, pursuant to the non-bailable warrant issued by the J.M.F.C. 3rd Court, Wardha in Regular Criminal Case No.81/1987, and as the petitioner came to be illegally detained in the police lockup, so as to be produced before the Court, and was subsequently released on bail. He claims compensation in the sum of Rs. 5,00,000/- for infringement of his valuable fundamental right of liberty under Article 21 of the constitution of India.
2. In is the case of the petitioner that he along with one Mahesh Kumar Bhandari came to be arrested and prosecuted for having committed offence under section 420, read with Section 34 of I.P.C., on the basis of the complaint lodged by Dilip Ramchandra Kashikar and two others, on 02.05.1978. On completing the investigation, the Police Station Wardha, submitted charge sheet before the J.M.F.C. Wardha on 15.01.1983, and therefore during the period 1978 to 1983, the petitioner was required to attend the court of J.M.F.C. Wardha, as the co-accused in the case was absconding and could not be arrested for a long time. Thereafter the trial of the petitioner was separated and he was tried before the court for the said charge, and on 21.11.1989 he stood acquitted.
3. It so happened that as the case was lying dormant on the file of the Court, probably for the reason that the co-accused of the case was absconding, and this is reflected vide order dt. 25.10.1994, which reads :
"Case is taken today, A.P.P. for the State. Accused no.1 (i.e. the petitioner) is already acquitted. Accused no.2 is absent since filing of the charge sheet. Hence, case is kept on Dormant file. Issue NBW against the accused no.2. Case is fixed for return of Non Bailable Warrant."
4. It is the case of the petitioner, that after his acquittal from the case, the petitioner has been leading a peaceful life along with his family and earning his livelihood by honest means and at no time was involved in commission of any offence. On 17.11.1999 between 10.30 to 11 p.m. i.e., almost after 10 years of his acquittal, when the petitioner was in the house of one of his relatives by name by name Balwantrao Bhoyar at Kelapur, Post Dahegaon (Gawande), Tq. and District - Wardha, two police personnel of Police Station, Pulgaon, District Wardha, came to the place of the relative of the applicant and arrested him on the strength of non bailable warrant issued by the J.M.F.C. 3rd Court, Wardha. The petitioner was handcuffed and he was paraded through the streets while taking him to police station, Pulgaon. The petitioner was thereafter put behind bars in the police lockup. It is the case of the petitioner that inspite of repeatedly telling the police personnel, that there is no case pending against him, nor he is wanted or required for having committed any offence and that the non-bailable warrant on the basis of which the police has arrested, is a case where he has been honourably acquitted by the Court of the J.M.F.C., but it made no difference and the petitioner had to suffer physical and mental agony, on being detained and put in police lock up. On the next date i.e., on 18.11.1999 at 3 p.m. the police produced the petitioner before the J.M.F.C. Wardha, who passed the following order:
"Accused produced under custody. No complaint of ill treatment. Taken in M.C.R."
The petitioner came to be released on next day by the Court of J.M.F.C. on furnishing security of one Pradeep Bobde. On 05.01.2000 when the petitioner was brought before the J.M.F.C. Wardha, he has informed the Court and explained to the Presiding Officer, he is already acquitted from the Criminal Case No.81/1987 and stands discharged from the charge of having committed offence under section 420 read with 34 I.P.C., by judgment and order passed by the Court on 21.11.1989. He has also pleaded that he has been unnecessarily arrested and produced before the Court after 9 years, which is illegal and bad in law. On this the Court examined the case of the petitioner and passed the following order.
"Accused Walmik appeared. He made submission that he is acquitted in the case. From order sheet dt.21.11.1989, it reveals that accused Walmik was acquitted. Hence he is released. However, the Judgment and the deposition of witnesses are not on record. Case be kept on dormant file."
5. Mr. Bandre, the learned counsel appearing for the petitioner, submits that for no fault of the petitioner, the petitioner came to be arrested and detained in police lockup for the whole night and on the next day he was produced before the Magistrate, who remanded him to Magisterial Custody, and it is only on furnishing surety, that he came to be released, and that the Magistrate after examining his case ordered his release, therefore, the petitioner is entitled for compensation for his wrongful arrest, detention and confinement for no fault of his.
6. Mrs. Dangre, learned A.P.P. appearing in the matter on behalf of the State, submits that the issuance of the non-bailable warrant against the petitioner came to be made as the clerk working in the concerned court was not diligent and as so many cases were pending on the dormant file, which were required to be taken up, probably non bailable warrant came to be issued against all such accused persons whose cases were pending and inadvertently such warrant came to be issued against the petitioner, who was actually acquitted in the case. Mrs. Dangre, submitted that the arrest, detention and confinement of the petitioner was unintentional and error on the part of the Court, due to the misconduct of its ministerial staff. Mrs. Dangre, submits that, the police cannot be faulted in the case, as they were only executing the non bailable warrant issued by the competent Court. It is submitted that on affidavit, the Police Officer who caused arrest of the petitioner and brought him to the police station, has categorically denied that the petitioner was handcuffed and paraded through the streets, in order to bring him to the police station. It is not disputed that he was put in lockup and then produced before the Competent Court, on the following day at 3 p.m.
7. Mrs. Dangre, therefore submits that the State cannot be saddled with the liability of paying compensation for the acts done in good faith and under bonafide impression, that the petitioner was wanted in a case for trial, and therefore, the petitioner does not deserve any compensation.
8. We have called for report of the District and Sessions Judge, Wardha after due enquiry into the whole episode. From the report which has been submitted to this Court, on making enquiry, the learned District and Sessions Judge, has come to the conclusion that one Shri D.K. Dhage, who at the relevant time was working as court clerk in the Court of 3rd Joint Civil Judge, Junior Division and J.M.F.C. Wardha which was incharge of the case is responsible. In the enquiry conducted by the District and Sessions Judge, it was found that it is Shri. Dhage, who had prepared the warrant against the petitioner Walmik, but whereas the order dt. 22.11.1996 clearly shows that the court had issued non bailable warrant against the accused Bhandari, who is absconding in the case. Shri. Dhage is also held responsible for missing of relevant papers from the case file. The learned District and Sessions Judge, has come to the finding that it also appears that the learned J.M.F.C. has not taken care to verify as to whether warrant has been prepared properly or not. In the enquiry conducted by the District Judge, statement of the Presiding Officer, as well as Staff of the Court has been recorded and, we find that the enquiry conducted by the District and Sessions Judge, was fair and just and the conclusion arrived on it by him can be accepted. The unfortunate part is that the delinquent clerk Shri. Dhage, who was working as junior clerk at the relevant time has died, and is no more so that any departmental action can be taken against him.
9. We are conscious of the fact that an innocent act of the State may not invite any action, but exceptions can be made, it is common knowledge that in subordinate Courts there are huge pendency of Criminal cases, where hundreds of people are awaiting their trial. The accused persons are required to attend the court on the dates given for hearing, and due to huge pendency and problem in management of the court work and the board and for various other reasons, cases are sent to dormant file and the accused are so informed. In most of the cases, the accused may be represented by lawyers, it is only when some inspection takes place or the attention of the Court is drawn to a particular case by moving any application or there are directions of the Superior Court that the case is searched out and listed on the board and the process is initiated. In all such cases, it is the responsibility of the Presiding Officer, to see that the presence of the accused is secured and for that it is not necessary to issue a bailable warrant or non bailable warrant at the first instance. The safest mode has to be adopted by the Court in securing attendance of accused by issuing summons or notice to the surety in case there is a surety and on being satisfied that in-spite of service of summons the accused is not responding or not attending the Court, then take steps of issuing bailable warrant against the accused, and also initiate action against his surety for forfeiture of surety bond, and even after this the accused does not respond or does not appear, then by way of last resort the court may issue non bailable warrant. We say so because it is not due to the fault of the accused he is absent before the Court, but it is due to the fault of the Court, that his case has not been taken up and kept in dormant file, and if the case is to be revived by placing it on regular board, then the steps to procure the attendance of the accused and the procedure to be adopted for the same has to be just and fair. In such cases if the Magistrate issues a non bailable warrant against the accused, at the first instance it may result in mis carriage of justice, as the accused though he is on bail is rearrested without first ascertaining his availability through means of issuing summons or bailable warrant, and in such a case person may unnecessarily be required to be arrested, detained in police custody and then produced before the Court. This we have observed in case of accused who are waiting for years in order to face their trial in the subordinate Courts. The case at hand is of a person who has already suffered the trial and was acquitted, but still arrested on issuance of non bailable warrant, at the very first instance and that was because the clerk of the court was instrumental in doing so, and the Magistrate overlooked it and signed the warrant. It was part of the duty of the learned Magistrate to have satisfied itself that why the necessity of issuing non bailable warrant in the first instance is required to procure the presence of accused facing trial before it, and unless he is satisfied he should not take recourse to such stringent measure which are to be applied as last resort.
10. We are quite hopeful that the aforesaid observations made by us would serve as guidelines to the subordinate Courts, whenever they are dealing with such matters and they would exercise their powers with necessary care and caution so that in future no person has to surfer the indignity of being arrested, resulting into curtailment of his liberty without any justification and following of due process of law. In our opinion a reckless arrest of a citizen and detention even under a warrant of arrest by a competent Court without first satisfying itself of such necessity and fullfilment of the requirement of law is actionable as it violates not only his fundamental rights but such action deserves to be condemned being taken in utter disregard to human rights of an individual citizen.
11. Now we turn our attention to the claim made by the petitioner for compensation for this wrongful arrest, detention and confinement. We find that the petitioner has been arrested, detained and wrongfully confined till he was released by the Magistrate, pursuant to non bailable warrant issued by the Court in spite of the fact that he stood acquitted in the case about 9 years back. The State cannot defend this wrongful act by taking a plea of un intentional and bonafide action, and would be liable to pay compensation to the petitioner.
12. We have ascertained the status of the petitioner so as to work out his entitlement for compensation. We are informed that the petitioner works as Production Manager in a reputed firm M/s. Haldiram Bhujiwala, and draws salary of more than Rs.7000/- p.m. He has, wife, two marriageable daughters and a son in his family. After giving our anxious thought to the matter we award a sum of Rs.10,000/- to the petitioner as compensation. The State is directed to pay the amount of Rs.10,000/- to the petitioner within a period of four weeks, or deposit the same in this Court. We are also granting cost to the petitioner quantified to Rs.5000/-. It will be open for the State to recover the amount so awarded from the monetary benefits/pension, the delinquent clerk/his family is entitled to receive or will be receiving on his death. Rule made absolute in the aforesaid terms. Certified copy expedited.