The Aurangabad bench of Bombay High Court granted compensation to two petitioners as they were illegally detained by the police for 6 days. The court relied on precedents set by the apex court in cases of illegal detention and asked the state government to fasten responsibility in such cases. The two judge bench comprising Justices TV Nalawade and MG Sewlikar, while hearing the writ petition, also called out the Executive Magistrate for passing an order without application of mind and devoid of jurisdiction while also pulling up the Police for having malafide intention in keeping the petitioners in custody.
The petition was filed seeking compensation of Rs. 5 lakhs for detaining the petitioners illegally. An FIR was filed against them in January 2013 at Beed Rural police station under charges of causing hurt, intention to provoke breach of peace and criminal intimidation with common intention. They were granted bail by Judicial Magistrate First Class but they were immediately taken in custody and escorted to Executive Magistrate under section 107 of CrPC which directed them to give interim bond with two solvent sureties of Rs.25,000/- each. When they requested the Magistrate to permit them to give cash security in place of surety bond as the solvency certificate is not issued immediately, such time was granted to them and the court adjourned the matter. But the petitioners contended that they were kept in jail illegally for 6 days.
The court held that even when bailable offence was registered, both the Petitioners were arrested and they were produced before the Magistrate when they could have been released on bail in the police station.
The court observed that 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. The petitioners were arrested without show cause notice being issued to them under section 111 of CrPC. Thus, the court held 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.
The court concluded that the order of the 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. The court, being apprised of the facts and circumstances deduced 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 court also held that the Executive Magistrate acted as per such desire of police and he did not apply his mind.
The court held that the Executive Magistrate “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.”
The court then directed the State government to pay compensation of rs. 50,000 to each petitioner within 45 days. The court stated that only since the Executive Magistrate ordered the release of the petitioners on the same day and granted them time, the compensation was not awarded in higher amount.
The complete order may be read here.
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