P.R. Bora, J.
1. Petition heard finally. The petitioner has filed the present petition, claiming compensation of Rs. 1,00,000/- (Rs. One lakh only) and seeking direction against the respondent Nos. 1 and 2 to take stern action against respondent No. 3, who according to the petitioner is responsible for his illegal detention in police custody, and his false implication in chapter proceedings.
2. The petitioner claims himself to be an active worker of Bharatiya Janta Party. It is his contention that the chapter proceeding No. 68/2005 was falsely initiated against him at the instance of respondent No. 3, on the basis of a single crime registered against him. It is his further contention that the said sole crime registered against him was also absolutely false, and he was no way involved in the said crime. It is his further contention that in the said chapter proceeding, though he was arrested at 10.00 am on 23-02-2005, he was not immediately produced before the Special Executive Magistrate and was illegally detained for more than twenty four hours, and was produced before the Magistrate at 3.30 pm on 24-02-2005. It is his grievance that respondent No. 3 violated the guide-lines laid down in the case of D.K. Basu Vs. State of West Bengal, (1997 AIR SCW, 233), at the time of his arrest. It is his specific contention that no information regarding his arrest was given to any of his family members. It is his specific grievance that he was illegally detained and all of his Constitutional rights were violated. The petitioner has further alleged that while in custody of the police, he was tortured by respondent Nos. 3 and 4. He was inhumanely treated by the police, as if he was a habitual criminal offender. It is alleged that the photos of the petitioner were obtained by giving slate in his hand and while taking the petitioner to Ahmednagar he was paraded in Village Kolhar. The petitioner has further alleged that respondent Nos. 3 and 4, only with the intention to harass the petitioner pressed for the direction against the petitioner that he may be subjected to furnish bond in the amount of Rs. 1,25,000/-(Rs. One Lakh twenty five thousand only), knowing well that if such direction is given, it may not be possible for the petitioner to comply the same immediately, and consequently, he will remain in jail till he furnishes the bond in the said amount. The petitioner has alleged that all the actions taken by respondent Nos. 3 and 4 were with ulterior motive, high handed and arbitrary. The petitioner has alleged that the petitioner was unnecessarily arrested to tarnish his image in the society. The petitioner has, therefore, claimed the compensation of Rs. 1,00,000/- (Rs. One lakh only) from the respondents and has also prayed for an inquiry into the illegal acts allegedly committed by respondent Nos. 3 and 4.
3. On behalf of respondent Nos. 3 and 4, respondent No. 3 has filed affidavit-in-reply denying the allegations raised in the petition. Respondent No. 3 and 4 have taken a plea that considering the anti-social activities of the petitioner, it had become necessary for them to take some preventive action, and the same was taken against the petitioner under the orders of superior police officers, and while taking such action, the same has been taken within the four corners of law and strictly following the procedure laid down for the same. Respondent Nos. 3 and 4 have further contended that the petitioner was arrested at 3.30 PM on 23-02-2005, under Section 41 (2) of the Code of Criminal Procedure, and thereafter within twenty four hours was produced before the Special Executive Magistrate. It has also been contended that wife of the petitioner was present, when petitioner was produced before the Special Executive Magistrate. Respondents have justified their action in the affidavit-in-reply filed by them.
4. The petitioner has filed a rejoinder to the affidavit-in-reply filed by respondent Nos. 3 and 4, denying the fact stated in the said affidavit-in-reply, in regard to the presence of his wife at the time of his arrest by respondent No. 3. The Petitioner has filed an affidavit of Adv. Bhaskar Tulshiram Pathare, wherein he has stated that the wife of the petitioner was not present on 24-02-2005, when the petitioner was produced before the Special Executive Magistrate, Ahmednagar.
5. Shri N.B. Suryawanshi, the learned counsel appearing for the petitioner made elaborate submissions. The learned counsel pointed out that at the time when chapter proceedings came to be initiated against the petitioner, only one case . arising out of crime No. 10/2005, was pending against him. The learned counsel submitted that even in the said case, the petitioner was falsely implicated. The learned counsel invited our attention to the copy of Panchanama dated 04-02-2005 filed along with the petition and marked as Exhibit C, and submitted that Crime No. 1/2005 was registered at Police Station Rahata, Camp at Loni for the offences punishable under the Bombay Prohibition and Gambling Act, and in the said crime the petitioner had acted as a panch witness in drawing the search and seizure panchanama. The learned counsel submitted that the persons against whom crime No. 1/2005 was registered had agitated on 19-02-2005 in front of the Police Chowki, Kolhar, and they had put one cloth banner outside the said police chowki and they had sat on hunger strike. The learned counsel submitted that when the petitioner had acted as a panch witness in the crime against the said agitators, and when the said agitators were belonging to the rival political group, there was no reason for the present petitioner to sit along with them on hunger strike. The learned counsel submitted that a total false case was prepared and it was demonstrated that the petitioner fled away from the spot and hence he could not be arrested on the spot. The learned counsel submitted that in such circumstances Crime No. 10/2005 for the offences under Section 143 of the Indian Penal Code and under Section 37(1) read with Section 135 of the Bombay Police Act, was registered at Police Station, Loni. The learned counsel submitted that for the alleged act of displaying the cloth banner at the out side of Police Chowki, an offence under Section 3 of the Maharashtra Dis-figuration Property (Prohibition) Act, 1985 was also added in the said crime. Shri Suryawanshi further submitted that even if it is presumed that there was some involvement of the petitioner in the said crime, it was the only offence at his discredit. The learned counsel submitted that on the basis of the sole crime the proceedings came to be initiated against the present petitioner under the provisions of Section 110 (e) (g) of the Code of Criminal Procedure and the petitioner was arrested by invoking powers under Section 41(2) of the Code of Criminal Procedure by respondent Nos. 3 and 4.
6. The learned counsel submitted that on his arrest on 23-02-2005 at about 11.00 AM, the petitioner along with the other arrested persons was sent for medical examination. The learned counsel invited our attention to the document filed on record by him, evidencing the fact that he was referred to the Medical Officer on 23-02-2005 for his medical examination. The learned counsel further submitted that it was quite possible for respondent No. 3 to produce the petitioner before the Special Executive Magistrate on the same day, however, intentionally he was not produced and was illegally detained. The learned counsel submitted that on 24-02-2005, the petitioner was produced before the Special Executive Magistrate. The learned counsel, bringing to our notice the submission made by respondent No. 3 in his affidavit-in-reply submitted that a false picture was attempted to be created before the Special Executive Magistrate that the petitioner was a dangerous person and involved in anti-social activities. The learned counsel submitted that with malafide intention the prayer was made in the written application by respondent No. 3, requesting the Special Executive Magistrate to pass an order calling upon the petitioner to furnish the bond in the amount of Rs. 1,25,000/- (Rs. One lakh twenty five thousand only), knowing well that if such an order is passed it may not be fulfilled and petitioner will have to remainbehind the bar till furnishing the bond in the said amount.
7. Shri N.B. Suryawanshi submitted that even the Special Executive Magistrate without ascertaining the nature of the offence pending against the petitioner, implicitly relying on the submissions made before him by respondent Nos. 3 and 4, directed the petitioner to furnish the bond of such an heavy amount of Rs. 1,00,000/- (Rs. One lakh only). The learned counsel submitted that asking to furnish the bond of such a huge amount was impermissible. The learned counsel submitted that the facts stated by the petitioner in his petition that he was arrested at 10.00 AM on 23-02-2005, and further that his photos were obtained at the Police Station by giving slate in his hand, and further that while taking the petitioner to Ahmednagar, he was deliberately paraded in Kolhar village have not been specifically denied by the respondents. The learned counsel submitted that respondent Nos. 3 and 4, though were well aware that the petitioner was the District Secretary of a National Political Party, and further that he was not involved in any unlawful activity, and further that there were no criminal antecedents against him, merely because the petitioner had made some complaints against respondent No. 3, out of vengeance the chapter proceeding was initiated against him and in the said proceeding, he was illegally detained. The learned counsel further submitted that before filing of the present petition, the petitioner has time to time sent the representations to the higher police officers putting forth his grievance before them as to how he was illegally arrested, detained and was harassed by respondent Nos. 3 and 4. The copies of these representations are filed on record by the petitioner. The learned counsel submitted that no proper attention was given to the grievance so made by the petitioner even by the senior police officers, and he was informed that there was nothing illegal in the actions taken by respondent Nos. 3 and 4. The learned counsel submitted that considering the facts involved in the matter, the petitioner deserves to be awarded the compensation as claimed and inquiry needs to be directed against respondent Nos. 3 and 4 for the illegal acts committed by them.
8. The learned Additional Public Prosecutor controverted the submissions made on behalf of the petitioner. Referring to the affidavit-in-reply filed by respondent Nos. 3 and 4, he submitted that the reply so filed is enough to meet with all objections raised by the petitioner. The learned Additional Public Prosecutor submitted that respondent No. 3 had acted in parameters of law and under the directions of his superior officers. The learned A.P.P. submitted that on the information available against the petitioner that he was likely to commit and cause breach of peace in the society, the preventive action under Section 110 (e) (g) of the Code of Criminal Procedure was taken against him. The learned A.P.P. submitted that no illegality was committed either in arresting the petitioner or producing him before the Special Executive Magistrate. He further submitted that as has been contended in the affidavit-in-reply, the petitioner was arrested on 23-02-2005 at 3.30 PM and was produced before the Special Executive Magistrate at 12.30 PM on 24-02-2005 i.e. within the period of twenty four hours. The learned A.P.P. submitted that petition is devoid of any merit and it be rejected.
9. The learned A.P.P. brought to our notice that petitioner had filed criminal complaint against respondent Nos. 3 and 4 in the Court of Judicial Magistrate, First Class, Rahata for the offences punishable under Section 166, 177, 219, 341, 342, 500 read with 34 of the Indian Penal Code raising the same contentions which are raised by him in the present petition. The learned A.P.P. pointed out that the petitioner has unconditionally withdrawn the said complaint. It was the contention of the learned A.P.P. that on the same cause of action and for the same reliefs, the petitioner could not have filed the Criminal Writ Petition. The learned A.P.P. further submitted that the prayer made in the present petition seeking compensation of Rs. 1,00,000/- (Rs. One lakh only) was made by the petitioner in the Criminal Revision Application No. 10/2005, filed by him in the Court of Additional Sessions Judge, Kopergaon. However, while deciding the said petition, learned Additional Sessions Judge, Kopergaon has rightly declined to entertain the said prayer. The learned A.P.P. submitted that during the pendency of said revision application, the petitioner has filed present petition and also sought compensation in the present petition also. According to learned A.P.P., since the Criminal Revision which was filed earlier in the point of time, and when the prayer for compensation has been turned down by the competent Court, the petitioner has lost right to claim the same relief before this Court. The learned A.P.P. further submitted that the petitioner had made the grievance with respondent No. 2 herein and his representations were taken care of and it was informed to the petitioner that there as nothing illegal in the actions taken by respondent Nos. 3 and 4.
10. We have carefully considered the submissions made on behalf of the petitioner as well as the respondents, and also perused the documents filed on record. First we would prefer to deal with the objections raised about the maintainability of the present petition.
11. The learned Additional Public Prosecutor has raised an objection that the petitioner had filed a Criminal Revision Application in the Court of Additional Sessions Judge, Kopergaon, Dist. Ahmednagar, wherein he has also prayed for compensation on account of his illegal detention, however, the learned Additional Sessions Judge has refused to award any such compensation. According to the learned Additional Public Prosecutor, the petitioner, therefore, could not have sought the same relief in the present petition. There appears no substance in the objection so raised. We have gone through the order passed by the Sessions Court, while disposing of the Criminal Revision application filed by the present petitioner, the sessions Court has declined to consider the request of granting any compensation, stating that it does not fall within its jurisdiction. The order so passed, therefore, may not come in the way of petitioner to claim compensation in the present writ petition.
12. The another objection has been raised by the learned Additional Public Prosecutor that, petitioner had filed a criminal case against respondent No. 3 and 4 in the court of Judicial Magistrate, First Class, Rahata, for the offences punishable under Sections 166, 177, 301, 343, 500, read with 34 of the Indian Penal Code, however, the same was unconditionally withdrawn by the petitioner. The learned Additional Public Prosecutor submitted that in the circumstances, making the same allegations and seeking the same action no second petition could have been filed by the petitioner. The learned Additional Public Prosecutor further submitted that the request so made in the present writ petition, seeking action against respondent Nos. 3 and 4, therefore, is liable to be rejected. We are however, not impressed with this argument also. Since the complaint so filed by the petitioner was not decided on merits and was simply withdrawn by the petitioner, he was not precluded from filing the present writ petition, seeking action against respondent Nos. 3 and 4 for illegally detaining him and for filing a false chapter proceeding against him.
13. There is no dispute that the chapter proceedings came to be initiated against the petitioner under Section 110 (e) (g) of the Code of Criminal Procedure, which reads thus :-
âSection 110. Security for good behaviour from habitual offenders. - When an Executive Magistrate receives information that there is within his local jurisdiction a person who â
(a) --------
(b) --------
(c ) --------
(d) -------
(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace or
(f) ------
(g) is so desperate and dangerous as to render his being at large without security harzardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.â
14. A plain reading of sub clause (e) of Section 110 shows that for initiating any action under the said clause, the person against whom such action is to be initiated, must be a habitual offender. There are catena of judgments, wherein the Hon'ble Apex Court as well this Court has clarified as to who is to be termed as 'habitual offender'. The word habit implies a tendency or capacity resulting from the frequent repetition of some acts. The word 'habit' and 'habitually' imply frequent practice or use. Habit is to be proved by an aggregate of acts and to constitute a person a habitual offender, it is necessary that the subsequent offence charged should have been committed by the accused after the previous conviction. In simple words for calling any person as habitual offender, at least more than one crime must be at his discredit. In the instant case, admittedly there is only one offence pending against the petitioner arising out of crime No. 10/2005., the fact apart that according to the petitioner, even in the said offence he has been falsely implicated.
15. Further it is interesting to note that in crime No. 10/2005, the petitioner and few others are alleged to have committed the offences under Section 143 of the Indian Penal Code, under Section 37(1) (3) read with Section 135 of the Bombay Police Act and under Section 3 of the Maharashtra Dis-figuration of Property (Prohibition) Act, 1995. None of the offence charged against the petitioner can be said to be of a grave nature. At least no inference could have been drawn from the said one crime pending against the petitioner that there was a danger from him to the society at large. The F.I.R. dated 19-02-2005 on the basis of which Crime No. 10/2005 came to be registered is filed on record by the petitioner. We have gone through the contents of the said F.I.R. It reveals that some five-six persons had sat on hunger strike in front of the Police Chowki at Kolhar, without obtaining any prior permission therefor to lodge their protest against some police action. It was further alleged that respondent No. 3 gave them an understanding that they have not obtained any permission for sitting on hunger strike, and since the preventive orders under Section 37 of the Bombay Police Act are in force, their assembling in a group of more than five persons was in violation of the said order. It was also alleged that the said persons have displayed a cloth banner on the wall of the Police Chowki. In the set of these facts and merely on these allegations an offence came to be registered against them under Section 143 of the Indian Penal Code and other sections referred herein above. The allegations on the basis of which crime No. 10/2005 came to be registered cannot be said to be of serious nature so as to invite a chapter proceeding out of that.
16. Secondly, the petitioner has come out with a specific case that the persons who were alleged to have sat on hunger strike were the same persons against whom a fortnight back an offence bearing crime No. 1/2005 was registered under the provisions of Bombay Gambling Prohibition Act, and in the said case the present petitioner had acted as a panch witness for the personal search and seizure of the persons involved in the said offence. The fact so specifically stated by the petitioner has not been denied or disputed by respondent Nos. 3 and 4 in their affidavit-inreply. In absence of any contrary evidence and denial to the said fact, we do not find any reason to disbelieve the version in that regard in the petition, and if that be so, it appears quite improbable as has been argued on behalf of the petitioner, that he will sit on hunger strike as alleged in crime No. 10/2005 along with offenders in crime No. 1/2005.
17. Similarly, the contention of the petitioner that except the aforesaid crime No. 10/2005, no other case is pending against him has also not been denied or disputed by the respondents. In such circumstances, it apparently appears that there was no ground for initiating chapter proceedings against the petitioner, invoking sub clause (e) and (g) of Section 110 of the Code of Criminal Procedure. Nothing has been brought on record from which an inference could have been drawn that the petitioner was desperate and dangerous so as to render him at large without obtaining security from him, and further that his presence without such security was hazardous to the community. In the above circumstances, we have no hesitation in holding that the act of respondent Nos. 3 and 4 of initiating chapter proceedings against the petitioner under Section 110 (e) (g) of the Code of Criminal Procedure was not only arbitrary, malafide also.
18. The allegation pertaining to illegal detention of the petitioner is equally serious. In para No. 7 of the petition, the petitioner has specifically averred that the petitioner was arrested on 23-02-2005 by Loni Police at 10.00 am, and was taken for medical examination on the same day at 11.00 am. The petitioner has further averred that after completion of the medical examination, the respondents could have produced him before the Special Executive Magistrate immediately on the same day, however, deliberately petitioner was kept in custody, and was taken to Ahmednagar and produced on 24-02-2005 before the Special Executive Magistrate (LCB), Ahmednagar at 3.30 pm.
19. Regarding the above allegations, the respondent Nos. 3 and 4 have given the following reply :-
â In reply to para No. 7 I deny that the respondent no. 3 got knowledge of the complaint made by the petitioner to the respondent No. 2. I say and submit that the petitioner was arrested in pursuance to the chapter case no. 68/2005 and on the next day i.e. 24-2-2005 at 12.30 p.m., he was produced before the Special Executive Magistrate, Ahmdnagar. I deny that the respondent No. 3 and 4 have arbitrary and malafidely lodged chapter case. I further say and submit that the Special Executive Magistrate has released the petitioner in the said chapter case furnishing bond of Rs. 1,00,000/. I deny rest of the contentions in the said paras.â
20. We have carefully perused the entire affidavit-in-reply filed by respondent Nos. 3 and 4. The respondents have not speficially denied or disputed the fact stated in the petition that the petitioner was arrested on 23-02-2005 at 10.00 am and was sent for Medial Examination at 11.00 a.m. It is significant to note that not only that the petitioner has averred in the petition that he was arrested on 23-02-2005, but he has also filed on record the copy of requisition of the even date, whereby he was referred for medical examination which is at Exhibit-L Colly. When there are specific averments, general denial would not be sufficient. Respondents have not clarified as to at which time the petitioner was referred to Medical Officer on 23-02-2005 if not at 11.00 am, as stated by the petitioner. In absence of any contrary material / information there seems no reason to disbelieve the statement of the petitioner that he was sent for his medical examination at 11.00 am. Thus, it was quite possible for the police to produce the petitioner before Special Executive Magistrate on the same day. However, he was not produced on that day and was detained in custody and came to be produced on 24-02-2005, that too at 3.30 pm as per the version of the petitioner, and at about 12.30 pm as contended by the respondents. It need not be stated that personal liberty has utmost value in the life of a person, and his illegal detention even for a short while has also to be taken very seriously. When the petitioner was arrested on 23-02-2005 at about 10.00 am, in any case he ought to have been produced before the Special Executive Magistrate latest by 10.00 am on 24-02-2005. In such circumstances, even if contention in the affidavit-in-reply of respondent No. 3 and 4 is considered that petitioner was produced before the Special Executive Magistrate at 12.30 pm on 24-02-2005, it was in violation of Section 57 of the Code of Criminal Procedure, and the period spent by the petitioner in custody of the police beyond twenty four hours has to be held as his illegal detention.
21. Moreover, the twenty four hours period prescribed under Section 57 of the Code is the outer limit beyond which the arrested person cannot be detained in police custody. However, it does not mean that the police shall wait for twenty four hours after arresting a person to produce him before the Magistrate. On the contrary, the law mandates that the person arrested shall be produced before the nearest Magistrate as early as possible. In the instant case, there seems every reason to believe that the police could have produced the petitioner before the concerned Special Executive Magistrate on 23-05-2005 itself, and should not have waited and detained the petitioner till 24-05-2005.
22. The next issue falls for our consideration is whether the guide-lines laid down by the Hon'ble Supreme Court, in the case of D.K. Basu Vs. State of West Bengal (supra) were followed in the instant case. The petitioner has alleged that his arrest was not communicated to his family members or near relatives or friends. The aforesaid allegation has not been denied or disputed by the respondent. Para No. 22 of the affidavit-in-reply deals with the contentions raised in para No. 7 of the petition, wherein the petitioner has alleged that his arrest was not intimated to his relatives or family members or friends. However, para 22 of the affidavit-in-reply is silent on the accusation so made by the petitioner. No doubt, there is a general denial that rest of the contentions in the said paras are denied.
23. In para No. 8 of the affidavit-in-reply, it is averred that on 24-02-2005 when the petitioner and other persons were produced before the Special Executive Magistrate and the Special Executive Magistrate directed the petitioner to furnish a bond in the amount of Rs. 1,00,000/-, wife of the petitioner was present there, and she was aware of the order passed by the Special Executive Magistrate. However, the fact remains that nothing has been stated in the affidavit-in-reply that after the petitioner was arrested on 23-02-2005, intimation of that arrest was given to his family members or relatives or friends. The contention of the respondents that the wife of the petitioner was present, when the petitioner was produced before the Special Executive Magistrate is totally irrelevant. As per the guide-lines laid down by the Hon'ble Supreme Court in case of D.K. Basu Vs. State of WestBengal (supra), it was mperative on part of the Police Officer to immediately inform about the arrest of the petitioner to his family members, or his relatives or his friends. The respondents have admittedly not placed on record any information and / or evidence to show that the arrest of the petitioner was intimated to his family members or near relatives or his friends. The allegations so made by the petitioner that the guide-lines laid down in the case of D.K. Basu Vs. State of West Bengal (supra) were violated in his case, thus, stands sufficiently proved.
24. Further, it is also the grievance of the petitioner that while in custody of the police, he was treated as a hardened criminal. He has specifically stated that his photographs were taken in the Police Station by giving slate in his hand, and while taking him to Ahmednagar he was paraded in village Kolhar. In the affidavit-inreply these allegations have not been specifically denied or disputed by the respondents. The practice of obtaining photographs of the offenders by asking the offenders to hold the slate in their hand bearing their name on it is followed in the case of habitual offenders or the person involved in serious crimes or anti-social activities. Record shows that there were no criminal antecedents to the petitioner. While he was so arrested, a single crime was at his discredit and that too was for petty offences. In such circumstances, the act of respondent Nos. 3 and 4 to take photographs of the petitioner by putting slate in his hands appears quite unjustifible and it suggests the vindictiveness on part of the concerned police officers. Likewise, the parading of the petitioner through Kolhar village was also unwarranted, and it also shows the vengeful attitude of the concerned police officers toward