READ ORDER | Bombay HC Asks State To Fix Responsibility | Orders Rs 50k Each To Both Illegally Detained Men

In the reply filed by respondent police head constable, who was investigating the aforesaid crime, it is contended that the Deputy Superintendent of Police, Beed Division had directed this police station to take preventive measures against the petitioners. The said direction was given on wireless.

According to police head constable Bansi Jaibhaye, when the petitioners were released on bail by Judicial Magistrate First Class, he asked the petitioners to appear before the Executive Magistrate on the same day and he did not arrest them.

On that day, a report was submitted to the Executive Magistrate who directed the petitioners to give a bond of Rs 25,000 with two solvent sureties. However, the petitioners failed to comply with this order and the matter was adjourned to February 5, 2013 by the Executive Magistrate, the said constable contended.

Bombay High Court, Aurangabad Bench

After hearing the submissions, the Court noted that the records show that the police station requested the Executive Magistrate to start chapter proceeding under Section 107 of CrPC and obtain interim bond from them under Section 116(3) of CrPC. The bench said:

The provision of Section 107(1) of the Code of Criminal Procedure shows that there are conditions for starting the proceeding under this section….

In the present matter, the record shows that there was only a 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 a 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 bonds 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.

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Further, the bench also noted that the police head constable’s submission – where he had only directed the petitioners to appear before the Executive Magistrate when they were released on bail by the Judicial Magistrate First Class – appears to be incorrect and false. The court said,

The aforesaid order of interim bond made by the Executive Magistrate shows that the petitioners were brought before the Executive Magistrate by police head constable Jaibhaye. This circumstance supports the contention of the petitioners that immediately after their release on bail by the Judicial Magistrate First Class, they were taken in custody by police and they were produced before the Executive Magistrate.

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.

The bench affirmed that the said order of the Executive Magistrate was illegal and quoted:

The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs 25,000 each for each opponent.

These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a 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.

Compensation

The court categorically mentioned,

There is a clear possibility that to the Executive Magistrate there was no proper training. 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.

The court has directed the State to pay Rs 50,000 each to the petitioners, ordering that the compensation has to be paid within 45 days, failing which the amount will carry interest at the rate of 8% per annum. Court also granted permission to the State to recover the same from the erring officers and the Executive Magistrate.

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