In a significant ruling, the Nagpur Bench of the Bombay High Court recently directed a Police Inspector to pay Rs 1 lakh each compensation to two petitioners (Rs. 2 lakh in total) for the illegal and high-handed action of putting them under preventive detention. The Court observed, “Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of the police officer, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officers/ authorities.”
A Division Bench of Justices ZA Haq and MG Giratkar passed a judgement on a plea by one Kishor Futane (then 57) and his 26-year-old son, a homeopathy doctor from Wardha, seeking to declare their detention as illegal and quash said action in the interest of Justice.
The petitioners had sought to conduct an inquiry and appropriate actions against the Police Officials involved. Inter alia, the petitioners had also sought a compensation of Rs. 5 lakh each for humiliation and the molestation of their fundamental right to live life with dignity. The Court noted that in 2013-14, disputes about trusteeship of one Shri Mirannath Maharaj Deosthan, Deoli were going on before the authorities under the Maharashtra Public Trusts Act. There was a dispute whether the petitioner, Kishor Futane, was the Secretary of the executive committee of the said Trust. In a complaint filed in December 2013, it was claimed that Kishor Futane had abused the informant and threatened to break open the cupboard where the documents of trust were kept and take them away.
According to the complaint, the incident took place after the informant told petitioner that the keys were with one Pundlik Deoraoji Ughade, President of the Trust. After enquiry, the police authorities found that the offences complained of were non-cognizable. A report was lodged against the petitioners on January 19, 2014. Again, an enquiry was undertaken. As it was found that no cognizable offence was made out, a note to that effect was taken by the police authorities.
Despite this, the Court noted that ‘surprisingly,’ action under Section 151(1) of the Code of Criminal Procedure (CrPC) was taken against the petitioners. The father-son duo was detained on February 5, 2014, from early morning until 12 noon. Section 151 of the CrPC deals with arrest to prevent the commission of cognizable offence. Sub Section (1) states,
“A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”
According to the respondent Police officials, the petitioners were taken to the Executive Magistrate, who directed the release of the petitioners on furnishing of a bond / surety. Thereafter, the father-son duo moved the High Court and challenged the Police action. It was submitted by advocate PS Tiwari that the petitioners are reputed citizens of the town. It was argued that their detention was totally illegal and result of abuse of power and authority by respondent police officials. In response, advocate PS Tidke submitted for a Police constable that he had no option but to follow orders of his superior Police Inspector.
It was submitted by the Police Inspector, through advocate SM Karkare, that he had rightly taken action based on the reports lodged. It was argued that there had been an apprehension that the petitioners may commit a cognizable offence. Therefore, the Police Inspector contended that their arrest was necessary to prevent the commission of a cognizable offence.
Advocate TA Mirza appeared for the State Government. After perusing the material on record, the Bench observed, “To say the least, the justification given for taking action as per Section 151 (1) of the Code of Criminal Procedure is misleading and an attempt to cover up the illegal act.”
Justice Haq, who authored the judgment for the Bench, went on to note:
“The police officer may take action as per Section 151 (1) of the Code of Criminal Procedure against a person, only if he has knowledge of a design of commissioning of any cognizable offence, or if it appears to him that commission of cognizable offence cannot be prevented unless preventive action is taken against the person who may commit cognizable offence.”
In the present case, however, the Court pointed out that the Police Inspector, Dhananjay Sayare, has not presented any material to show that the petitioners were going to commit a cognizable offence. Similarly, no material was presented to show that the commission of a cognizable offence could not be prevented without taking preventive action against the petitioners. The Court proceeded to conclude, “In the above facts, we find that the petitioners have suffered due to the illegal and high-handed action of the respondent Police Inspector which appears to be motivated.”
In view of these observations, the Court declared the detention illegal and directed the Police officials to pay compensation in that regard.
“We hold and declare that detention of the petitioners by the respondent (Police Inspector) under Section 151 (1) of the Code of Criminal Procedure was illegal and we quash the action taken by the respondent no. 3 under Chapter VIII of the Code of Criminal Procedure… … We hold that the petitioners are entitled for compensation of Rs. One Lakh each, the compensation being payable by the respondent Police Inspector – Dhananjay Sayare.”
The prayer made for an inquiry into the conduct of the Police Inspector and the constable was rejected. All the same, the Court directed that the judgment and directions to pay compensation in the matter be taken in the service book of the Police Inspector.
