SOMNATH versus THE STATE OF MAHARASHTRA & ORS.

Leave granted.

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Heard learned counsel for the parties.

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The present appeal is directed against the Final Judgment and Order dated 08.10.2018 (hereinafter referred to as the “Impugned Judgment”) passed by the High Court of Judicature at Bombay, Bench at Aurangabad (hereinafter referred to as the “High Court”) in Criminal Writ Petition No.215 of 2017 by which the writ petition filed by the appellant was partly allowed and the respondent no.2 was directed to pay a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) from his own pocket to the appellant. BRIEF FACTS:

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A First Information Report bearing Crime No.1-117 of 2015 for an offence punishable under Section 379 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) was filed by one Mr. Madhukar Vikram Gayake on 14.06.2015 with Paithan Police Station, Taluka Paithan, District Aurangabad, State of Maharashtra (hereinafter referred to as the “PS”) alleging that on 12.06.2015 the complainant had come to attend the last rites of his brother-in-law and was standing in a queue in the holy Nath Temple when some unknown persons took away Rs.30,000/- (Rupees Thirty Thousand only), which he was carrying in his pocket, which he realized only after coming out from the temple. The appellant was arrested at 08:30PM in connection with the said crime on 14.06.2015 on the basis of CCTV footage showing the involvement of the appellant in the said crime.

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On 15.06.2015, the appellant was produced before the Magistrate at 4PM and the investigating agency sought police remand on the ground that recovery had been made from the appellant. The request was granted by the Magistrate and he was remanded to police custody till 18.06.2015.

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On 17.06.2015, the investigating agency prepared a memorandum under Section 27 of the Indian Evidence Act, 1872 showing recovery of Rs.30,000/- (Rupees Thirty Thousand) from the house of the appellant.

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On 18.06.2015, the investigating agency produced the appellant before the Magistrate praying for further extension of police custody for two days and the same was granted till 20.06.2015. On 19.06.2015, the appellant was allegedly taken out of the lock-up by the respondent no.2, the then officiating Inspector of PS, in handcuffs and paraded half-naked with garland of footwear around his neck and is said to have been verbally abused with reference to his caste as also physically assaulted by the respondent no.2.

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On 20.06.2015, the investigating agency did not ask for any further extension of police remand and thus the appellant was remanded to judicial custody till 04.07.2015. On the same day, the appellant filed an application for bail in the Court of Judicial Magistrate, First Class, Paithan, which was allowed on the condition that he would visit Police Station on every alternate day between 1000hrs to 1300hrs till filing of the Final Report. The appellant was not released pursuant to the order due to the respondent no.2 not allowing him to be released and instead had taken the appellant to the PS.

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Mr. Rahul Raju Kamble, relative of the appellant filed application before the Judicial Magistrate, First Class, Paithan, narrating the chain of events and praying for directions to release the appellant and, inter alia, praying for issuance of Show-Cause Notice to the concerned police officer. Thereon, the Magistrate had directed the prosecution to file its reply. However, the appellant was finally released on 20.06.2015.

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The Superintendent of Police, Aurangabad (Rural), on complaint made by the appellant and others, directed the Sub Divisional Police Officer, Paithan on 07.07.2015 to initiate inquiry on the entire issue and submit report. The Sub Divisional Police Officer, Paithan conducted inquiry relating to the complaint made against the respondent no.2, directing both the appellant and respondent no.2 and other Police officers/ constables to appear and submit their statements. In his report dated 11.09.2015, it was recorded that on 19.06.2015 the appellant was taken out from the lock-up by the respondent no.2 and paraded on the streets of the city of Paithan and was also physically assaulted during the said procession and held respondent no.2 responsible for this. It further narrated that despite grant of bail to the appellant he was illegally detained by respondent no.2 for four hours.

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On 08.10.2015 and 09.10.2015, the sister of the appellant complained to various authorities including the Superintendent of Police, Aurangabad (Rural) and the President [read Chairperson], National Human Rights Commission (hereinafter referred to as the “Commission”) seeking initiation of departmental enquiry and criminal prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC/ST Act”).

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On 25.12.2015, the appellant was charge-sheeted in connection with another FIR bearing Crime No.1-192/2015 punishable under Section 394 , IPC and he was sought to be declared a Proclaimed Offender despite him being available in town and co-operating with the investigating agency. However, the appellant was arrested on 24.05.2016 and subsequently released on bail.

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The Special Inspector General of Police, Aurangabad Range, Aurangabad, after perusing the Inquiry Report of the Sub Divisional Police Officer dated 11.09.2015 and not finding the explanation of respondent no.2 to be satisfactory, imposed punishment of “strict warning”.

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The appellant on 02.02.2017, approached the High Court by way of filing Writ Petition, inter alia, praying for initiation of departmental inquiry and criminal proceedings against respondent no.2 and also sought compensation. The writ petition was partly allowed by the Impugned Judgment by awarding Rs.75,000/- (Rupees Seventy Five Thousand only) to be payable to the appellant by respondent no.2 from his own pocket but declining to give any direction for initiating criminal action under the SC/ST Act. SUBMISSIONS BY THE APPELLANT:

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Learned counsel for the appellant submitted that it would be a travesty of justice if for such blatant violation of the personal liberty of the appellant and abuse of authority, the respondent no.2 is let off with just “strict warning” without any real effective punishment. It was submitted that the conduct of the respondent no.2 besides being unprovoked was also in the teeth of the judgments of this Court in D K Basu v State of West Bengal, (1997) 1 SCC 416 and Sube Singh v State of Haryana, (2006) 3 SCC 178, which have laid down the guidelines of how a detenu has to be treated when in custody.

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Learned counsel submitted that one of the grounds for not directing criminal prosecution of respondent no.2 by the High Court was that Section 161 , Maharashtra Police Act, 1951 (hereinafter referred to as the “Police Act”) gives protection to a police officer from any belated prosecution, the period being six months. It was submitted the same should not be so enforced particularly in the facts of the present case where the appellant belongs to a weaker section and is without the wherewithal to pursue prosecution of a police officer. It was submitted that respondent no.2 has in fact been let off without any punishment as “strict warning” does not translate into any effective punishment which is also one of the minimum/minor punishments contemplated, whereas the conduct of the respondent no.2 required inflicting major punishment upon him. SUBMISSIONS BY THE STATE:

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Learned counsel for the State submitted that it has initiated departmental proceeding against respondent no.2 and punishment has also been awarded to him pursuant thereto. SUBMISSIONS BY THE RESPONDENT NO.2:

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Learned counsel for respondent no.2 submitted that the incident is totally without any truth and only to browbeat, and to demoralise the police, the appellant, who is habitual offender, has lodged a false complaint, that too, much after the time prescribed under the Police Act. It was further submitted that respondent no.2 has already paid Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) to the appellant i.e., Rs.1,00,000/- (Rupees One Lakh only) beyond what was directed by the High Court and in terms of the order passed by this Court on 07.07.2023 . It was submitted that the appellant having been found committing the offence for which his prosecution began, from the CCTV footage, cannot claim innocence.

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Learned counsel submitted that on 20.06.2015 at 3PM when he was produced before the Magistrate, the appellant did not allege any ill-treatment much less spoke about him having been subjected to parade in handcuffs and in a half-naked state with a garland of footwear around his neck. Even when relatives of the appellant had filed a complaint before the Magistrate on 20.06.2015, due to delay in release of the appellant despite grant of bail, there was no reference of any alleged instance of the appellant being paraded half-naked on 19.06.2015. Further, the report of the Sub Divisional Police Officer does not refer to the appellant having been paraded half-naked with a garland of shoes. It was submitted that due to the strained relationship of the respondent no.2 with the then Sub Divisional Police Officer, who had submitted the Report, adverse findings were recorded against the respondent no.2. Thus, it was submitted that the Special Inspector General of Police found the clarification submitted by the respondent no.2 to be satisfactory and that was the reason why a punishment of only “strict warning” was awarded. He submitted that pursuant to FIR bearing Crime No.1- 192 of 2015, the appellant could not be traced and was declared a proclaimed offender under Section 82(4) of the Code of Criminal Procedure, 1973 on 25.12.2015. It was further contended that only on 03.02.2017, the appellant had filed the underlying Writ Petition before the High Court and for the first time agitating that the respondent no.2 paraded him half-naked with a garland of shoes.

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Learned counsel submitted that in terms of Section 161 of the Police Act, prosecution against a police officer acting under colour of official duty after six months of the alleged act cannot be entertained and rightly the High Court has declined to direct any action on such prosecution. ANALYSIS, REASONING AND CONCLUSION:

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Having considered the facts and circumstances of the case, this Court finds that there is enough material to indicate that respondent no.2 did commit excesses against the appellant, as the same has also been found in an enquiry by the Commission as also relied upon by the High Court and such finding has not been varied or interfered with. Thus, the Court has no hesitation in strongly denouncing such high-handed action by the respondent no.2, who being in a position of power, totally abused his official position. However, in view of the fact that the respondent no.2 has superannuated and during the course of the present proceedings Rs.1,00,000/- (Rupees One Lakh only), apart from what was ordered by the High Court, has also been paid by the respondent no.2 from his own pocket to the appellant, which the appellant accepted, the Court finds that the matter now requires to be finally given a quietus. Be it noted, the appellant has additionally received Rs.25,000/- (Rupees Twenty Five Thousand only) as ordered by the Commission. We only add that the power of the High Court under Article 226 of the Constitution of India to award compensation is undoubtable, reference whereof can be made to Nilabati Behera v State of Orissa, (1993) 2 SCC 746.

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Accordingly, the appeal stands disposed of by upholding the Impugned Judgment, with the modification that the respondent no.2 is held liable to pay a further sum of Rs.1,00,000/- (Rupees One Lakh only) to the appellant. However, as the same stands already complied with, no further steps are required to be taken by the respondent no.2.

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Before parting, the Court would indicate that in such matters the Courts need to take a very strict view. A zero-tolerance approach towards such high-handed acts needs to be adopted as such acts, committed by persons in power against an ordinary citizen, who is in a non-bargaining position, bring shame to the entire justice delivery system. As such, we were considering resorting to Article 142 of the Constitution of India to direct initiation of criminal proceedings, but only because of the fact that respondent no.2 has retired and has already paid a sum of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand)[Rs.75,000/- (Rupees Seventy Five Thousand) as per the Impugned Judgment and Rs.1,00,000/- (Rupees one lakh) as per this Court’s order dated 07.07.2023] in total to the appellant, who has also been paid Rs. 25,000/- (Rupees Twenty Five Thousand) as per the Commission’s order, we refrain from so directing, in these peculiar facts and circumstances. We hold back noting that justice ought to be tempered with mercy. POST-SCRIPT:

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It is sad that even today, this Court is forced to restate the principles and directions in D K Basu (supra). Before D K Basu (supra), this Court had expressed its concern as to how best to safeguard the dignity of the individual and balance the same with interests of the State or investigative agency in Prem Shankar Shukla v Delhi Administration, (1980) 3 SCC 526. In Bhim Singh, MLA v State of Jammu and Kashmir, (1985) 4 SCC 677, this Court noted that police officers are to exhibit greatest regard for personal liberty of citizens and restated the sentiment in Sunil Gupta v State of Madhya Pradesh, (1990) 3 SCC 119. The scenario in Delhi Judicial Service Association v State of Gujarat, (1991) 4 SCC 406 prompted this Court to come down heavily on excess use of force by the police. As such, there will be a general direction to the police forces in all States and Union Territories as also all agencies endowed with the power of arrest and custody to scrupulously adhere to all Constitutional and statutory safeguards and the additional guidelines laid down by this Court when a person is arrested by them and/or remanded to their custody. Headnotes prepared by:  Result of the case: Aishani Narain, Hony. Associate Editor Appeal disposed of. (Verified by: Madhavi Divan, Sr. Adv.)

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