Case Note & Summary
The petitioner filed a criminal writ petition before the High Court of Judicature at Bombay, Bench at Aurangabad, alleging illegal detention by police officers after being released on bail in an FIR case. The background involved the petitioner being arrested on 18 August 2012 for offences under Sections 453, 354, 323, 504, 506 of the Indian Penal Code, 1860, and produced before the Judicial Magistrate First Class, Rahuri, on 19 August 2012, who granted bail. Immediately after release outside the court premises, respondent police officers rearrested him under Section 151 of the Code of Criminal Procedure, 1973, and took him to the police station. He was subsequently produced before a Special Executive Magistrate at Ahmednagar, who passed an interim order under Section 116(3) CrPC requiring him to furnish sureties and a personal bond; upon failure, he was sent to judicial custody. The petitioner contended that the second arrest was without jurisdiction, that the procedure under Sections 107, 111, 116, 122, and 123 CrPC was not followed, and that his signatures were obtained on blank papers. He sought a declaration of illegal detention, a departmental inquiry, and compensation of Rs. 5,00,000 under Article 226 of the Constitution. The respondents defended their actions as bona fide to prevent breach of peace, stating that all procedures were adhered to, and relied on several precedents to support police powers. However, they later filed an additional affidavit tendering an unqualified apology for any lapse, citing ignorance of the court's earlier directions in Pravin Vijaykumar Taware v. Special Executive Magistrate. The High Court had earlier directed an inquiry by the Superintendent of Police and subsequently by the Special Inspector General of Police, whose report indicated lapses. After considering the submissions and the inquiry report, the court drew upon its previous decisions in Rajesh Suryabhan Nayak and Pravin Vijaykumar Taware, which had held that in proceedings under Section 107 CrPC, an interim order under Section 116(3) cannot demand a surety bond, and any detention for non-compliance is illegal. The court found that the petitioner's detention violated the statutory scheme and Article 21 of the Constitution. While the final operative order is not included in the available record, the court's reasoning affirmed that the State was liable to pay compensation for the illegal detention and that the police officers' conduct, though apologetic, required action. The matter was reserved for judgment on 24 September 2013 and pronounced on 22 October 2013.
Headnote
A) Criminal Procedure - Preventive Detention - Mandatory Procedure under Sections 107, 111, 116, 122, 123 CrPC - Code of Criminal Procedure, 1973, Sections 107, 111, 116, 122, 123 - The petitioner was arrested under Section 151 but proceedings were purportedly under Section 107; the statutory scheme under Chapter VIII requires production before competent Executive Magistrate and adherence to the prescribed procedure, which the respondents deliberately avoided, rendering the detention illegal. (Paras 5, 6, 8, 9) B) Criminal Procedure - Arrest and Remand - Section 151 CrPC - Code of Criminal Procedure, 1973, Section 151 - Arrest under Section 151 must be followed by immediate production before the jurisdictional Executive Magistrate; producing the petitioner before a Police Inspector exercising Executive Magistrate powers at a different place was irregular and vitiated the proceedings. (Paras 5, 6, 10) C) Criminal Procedure - Interim Order under Section 116(3) CrPC - Bond Not Required in Section 107 Proceedings - Code of Criminal Procedure, 1973, Sections 107, 116(3) - Following Rajesh Suryabhan Nayak v. State of Maharashtra, in a proceeding initiated under Section 107 CrPC, no surety, security, or personal bond can be demanded under an interim order under Section 116(3) CrPC; detention for failure to furnish such bond is illegal and the State is liable to pay compensation for violation of Article 21. (Para 11) D) Constitutional Law - Right to Life and Liberty - Article 21 of Constitution of India - Illegal detention without following due process of law amounts to infringement of fundamental rights under Article 21, for which compensation is an appropriate remedy. (Para 11) E) Police Conduct - Duties and Lapses - Code of Criminal Procedure, 1973, Chapter VIII - The respondent police officers tendered an unconditional apology for any lapse in conducting the proceedings, accepting that the directions given in Pravin Vijaykumar Taware case were not communicated to them; however, ignorance of the law does not excuse the violation of liberty. (Para 8)
Issue of Consideration
Whether the detention of the petitioner by respondent police officers after his release on bail in a prior case was illegal and violative of Articles 14 and 21, and whether compensation should be awarded.
Law Points
- Illegal detention violates Article 21
- procedure under Sections 107
- 111
- 116
- 122
- 151 CrPC must be strictly followed
- police cannot re-arrest accused after bail grant arbitrarily
- executive magistrate must afford opportunity before passing order under Section 116(3) CrPC
- State liable to pay compensation for violation of fundamental rights
- judicial notice of common practice of illegal detention for failure to furnish surety in Section 107 proceedings
