Bombay High Court orders enquiry through Principal District Judge, Thane.
Illegal arrest and handcuffing of a lawyer by Kharghar Police.
Investigation of the case is
now transferred to C.I.D.
Petitioner prayed for action
against police officer under Section 195, 341, 342, 220, 120(B) & 34 etc.
of I.P.C.
Next hearing to be held on 15th
June 2021.
For more information on
related issues please visit the website of Indian Bar Association at following link;
https://indianbarassociation.co.in
Mumbai:- Division Bench of Bombay High
Court on 15th May 2021
directed Shri. R.M. Joshi, Principal District & Sessions Judge. Thane to
enquire and submit the report regarding unlawful detention of lawyer for two
days and handcuffing him and thereby violating his fundamental human rights.
The police should not rush to arrest a person and the
investigation of any case including the offences having punishment of life
imprisonment has to be conducted by issuing notice and undeserving arrest of
accused should make concerned Investigation Officer liable for action under Section 142(2) of Maharashtra Police Act & Section 220 etc. of I.P.C. The
Investigation Officer (I.O.) is also liable to pay compensation to the accused.
[Dinkarrao Pole 2004 Antony Maryan 2008,
cases of Siddharam Satlingappa Mehetre vs.
State of Maharashtra and Others (2011) 1 SCC 694, Miss
Veena Sippy vs 5) The State Of Maharashtra 2012 SCC ONLINE BOM 339, Joginder Kumar Vs. State1994 AIR SC 1349]
SC in S. Nambi Narayanan vs Siby
Mathews & Others Etc. (2018) awarded him a compensation of Rs 50 lakh. The SC
also directed for the constitution of a committee headed by a former judge of
the SC to find out ways and means to take appropriate steps against the erring
officials. Recently C.B.I. registered a case against the police officials.
Rudul Sah vs State of Bihar and Another (1983), Dr. Rini Johar & Anr. vs
State of M.P.& Ors. (2016), Durga @ Raja vs State of Madhya Pradesh (2018)
and Nandu @ Nandkishore Dheemer vs State
of M.P. (2018).Another
landmark judgment of compensation of Rs 5.62 lakh is that of the Delhi high
court in the case of Prempal & Ors. vs The
Commissioner of Police & Ors. (2010). Prempal was
falsely implicated by the Delhi police in as many as 18 cases between 1991 and
2007.
“2. Today, the Advocate for Vimalchandra Umeshchandra Jha –
Respondent No. 5 in PIL (ST) NO. 8169 of
2021 has also circulated the Writ Petition filed by Vimalchandra Umeshchandra Jha, being Writ Petition No. 1840 of 2021
inter alia alleging :
i. That the Petitioner is a victim of a well-orchestrated
conspiracy hatched by the Complainant Shri Navnath Narayan Gole in collusion
and connivance with the police officials of Kharghar Police Station;
ii. That under Memorandum of Understanding (‘MOU’) dated 27th
December, 2020, executed by and between the Petitioner and the
Complainant, the Petitioner had agreed to purchase the flat of the Complainant
at Vashi, Navi Mumbai, for consideration of Rs.80 Lacs;
iii. That the MOU is duly signed and notarized and the
Complainant has acknowledged therein that he has received Rs.50 Lacs towards
sale consideration from the Petitioner;
iv. That the Complainant was not able to complete the deal
and the Petitioner had demanded back his advance payment of Rs.50 Lacs from the
Complainant ;
v. That the Complainant informed the Petitioner that he does
not have the said amount and that he will arrange for the same from his
relatives and associates;
vi. That therefore the Petitioner along with his friend
accompanied the Complainant and two of the Complainant’s friends, first to a
farmhouse in Karjat and from there to Murbad and thereafter to a Hotel called
Peru-Chi-Baug at Nashik, but the Complainant failed to arrange for the money as
promised by him;
vii. That the Petitioner realizing that the Complainant was
just wasting his time, left from Nashik in a taxi back to his home and the
others stayed behind;
viii. That on 3rd December, 2020, the Petitioner was called
by Kharghar Police Station, Navi Mumbai, and was unlawfully detained for two
days. The Police Officer demanded the original papers, i.e. MOU executed by and
between the Petitioner and the Complainant and he informed the Petitioner that
in return for the same, he would not register any case against the Petitioner ;
ix. That since the Petitioner refused to handover the
original papers / MOU under such threats to the police authority, an FIR No.
137 of 2021 came to be registered on 5th April, 2021 at 3.36 a.m., for offences
punishable u/s. 323 r/w 34, 364A, 365, 387 and 506 of the Indian Penal Code,
1860 (‘the Code’) ;
x. That the Petitioner was produced before the Judicial
Magistrate First Class, Panvel, on 5th April, 2021 when the police custody of the Petitioner was
granted till 8th April, 2021 and thereafter extended from time to time ;
xi. That since the Petitioner was unwell his RTPCR test was
conducted and the Report showed him to be Covid positive ;
xii. That pursuant to an Application dated 11th April, 2021,
to allow the Petitioner to be shifted to a private hospital on the ground that
he was Covid positive and that he survives only on one kidney, he was shifted
to a private hospital;
xiii. That the collusion between the officials of the
Kharghar Police Station and the Complainant is clear from the fact that the FIR
was registered in the early morning on 5th April, 2021, when in fact
the Petitioner was detained in police custody since 3rd April, 2021
and was produced before the JMFC only on 5th April, 2021 and that
too in handcuffs. The Investigating Officer travelled to the Court of the
concerned JMFC in the car of the Complainant. The police officers of Kharghar
Police Station are refusing to produce the CCTV footage from 3rd
April, 2021 to 6th April, 2021 only because the same will establish
the Petitioner’s illegal detention since 3rd April, 2021.
The Petitioner had himself seen that there were CCTV cameras
in the Kharghar Police Station and the same were operational on 3rd April,
2021.
3. ……
4. Shri Shatrughna D. Mali, Senior Inspector of Police,
Kharghar Police Station, Navi Mumbai, has filed an Affidavit dated 18th May,
2021, ….
5. In the circumstances, we informed Shri Thakare, Chief PP of
the State that the Senior Police
Inspector of the Kharghar Police Station has already submitted an apology to
the Court for handcuffing the Petitioner and has also proposed an enquiry
in that regard ; that the submission that the Petitioner continued to stay in
the Police Station from 3rd April, 2021 upto 5th April, 2021, when he was
arrested at 4.39 a.m., does not appear to be plausible and it is also difficult
to accept that the installation work of CCTV and DVR started on 1st April, 2021
at Kharghar Police Station and took almost a month for completion. We therefore suggested /proposed to Shri
Thakre that in view of the serious allegations made by the Petitioner against
the police officials of Kharghar Police Station, considering that one such
allegation qua his handcuffing is already accepted by the Senior Police
Inspector of the Kharghar Police Station, who has himself proposed an inquiry
in that regard, an independent inquiry not only into the aspects of the alleged
illegal detention of the Petitioner, the commencement of CCTV and DVR in the
Kharghar Police Station, and the handcuffing of the Petitioner, needs to be
carried out by an independent officer appointed by this Court, but the offences
alleged in FIR No. 137 of 2021 registered by the Kharghar Police Station, also
needs to be investigated by an independent State Agency. Shri Thakare has fairly accepted the
suggestions of this Court and has submitted that the State has no objection, if
in the interest of justice, the Court orders an independent inquiry as suggested
and also transfers the investigation of offences set out in FIR No. 137 of 2021
to an independent State Agency. In view
thereof, at this stage, we pass the following Order:
a. Shri R.M. Joshi,
Principal District & Sessions Judge, Thane is appointed to enquire into the
following :
i. Whether the Petitioner was illegally detained at the
Kharghar Police Station, Navi Mumbai from 3rd April, 2021 until the
registration of FIR No. 137 of 2021 at 3.36 a.m. on 5th April, 2021 and his
consequent arrest on 5th April, 2021 at 4.39 a.m.
ii. Whether the Kharghar Police Station, Navi Mumbai was
justified, in accordance with the guidelines provided by the Apex Court, in
handcuffing the Petitioner on 5th April, 2021, when he was produced before the
JMFC, Panvel, to seek his police custody.
iii. When did the work of installing CCTV cameras commence at
Kharghar Police Station, Navi Mumbai, and when was the same completed? In other words, the date from which the CCTV
cameras became operational and started recording the entry and exit into
Kharghar Police Station and the movement in the said Police Station ?
iv. The Police Personnel of Kharghar Police Station, Navi
Mumbai, shall render all assistance to Shri Joshi, including producing before
him all the relevant data / documents required by him to complete his inquiry.
v. Shri Joshi is requested to complete the inquiry without
being influenced by any observation made in this Order and submit his Inquiry
Report to this Court on the adjourned date.
b. FIR No. 137 of 2021 registered with Kharghar Police
Station, Navi Mumbai, is transferred to the State CID to carry out
investigation in the matter and to take all consequent steps / measures
thereafter.
c. Kharghar Police Station, Navi Mumbai shall forthwith
forward all necessary papers / records to the State CID to carry out necessary
investigation.
d. The Deputy Commissioner of Police, State CID, shall
monitor fortnightly the said investigation and the Investigating Officer shall
submit his report for the said purpose to the DCP, State CID.
e. Any complaint received / further FIRs filed in regard to
the crime which is the subject matter of FIR No. 137 of 2021, shall henceforth
be filed only before the State CID for necessary enquiry / investigation /
action.
f. All concerned to act on an ordinary copy of this Order
duly authenticated by the PS / PA of this Court.
6. Stand over to 15th June, 2021.”
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