Full Judgment Text
2012:BHC-AS:4424-DB
1
(WP2301.2006)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2301 OF 2006
1. Smt. Surekha Dnyaneshwar Sonawane )
Aged about 37 years, )
residing at Row House No.6, )
Durga Society, Airoli, Navi Mumbai. )
)
2. Milind Govind Jadhav, )
Aged about 28 years, residing at )
Ram Nagar, Digha Village, Belapur Road, )
Navi Mumbai. ) .... Petitioners.
V/s
1. The Commissioner of Police, )
Navi Mumbai )
)
2. Shri Ashok Pandhare, )
Assistant Commissioner of Police, )
Vashi Division, Navi Mumbai )
)
3. Shri Padmakar G. Juikar, )
Senior Inspector of Police )
and Investigation Officer, )
Rabale Police Station, Navi Mumbai. )
)
4. State of Maharashtra ) ... Respondents.
---
Mr. S.R. Chitnis, Senior Counsel i/b Mr. Nitin Sejpal and
Ms Pooja Bhojne for Petitioners.
Dr. F.R. Shaikh, APP for the State.
----
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CORAM: V. M. KANADE &
P.D. KODE JJ.
Date on which the judgment
is reserved : 31/01/2012
Date on which the judgment
is pronounced: 21/02/2012
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. By this Petition which is filed under Article 226 of the
Constitution of India, Petitioners are seeking writ, order and
direction, directing the Respondents to pay compensation of
th
Rs 25,000/- each per day for their illegal detention from 7
th
October, 2006 to 13 October, 2006 and also for declaration
that the Petitioners were illegally arrested in C.R. No.I-2008
th th
from 7 October, 2006 to 13 October, 2006.
2. Brief facts are as under:-
3. One Dnyaneshwar Sonawane, who was the husband of
th
Petitioner No.1, was killed on 8 October, 2002. An FIR was
registered on the same day by the present Petitioner No.1
vide C.R. No. I-228 of 2002 for the offence punishable under
sections 302, 449, 147, 148, 149 read with section 34 of the
Indian Penal Code. Four persons were arrested by the Police
and charge-sheet came to be filed and the Sessions Judge,
Thane was pleased to acquit the four accused persons by his
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th
judgment and order dated 16 August, 2003.
4. Thereafter, after two years, one Mohan Sonawane who
claimed to be the real uncle of the deceased, wrote a letter
to the President, Human Rights Commission, Mumbai in
which he alleged that he had learnt that Petitioner No.1
herself had planned her husband’s murder. The acting
Chairman of the Maharashtrra State Human Rights
th
Commission on 18 October, 2005 passed an order and
transmitted the complaint to the Commissioner in Mumbai
for disposal in accordance with law.
5. An application was filed by the Assistant Commissioner
th
of Police, Vashi Division, Navi Mumbai on 10 January, 2006
before the JMFC, CBD, Navi Mumbai, seeking permission to
conduct brain mapping test as well as lie detection test on
both the Petitioners and Mohan Sonawane. The said
application was allowed by the JMFC and the said order of
the JMFC was challenged by the Petitioners in Writ Petition
No.372 of 2006, which Writ Petition was allowed and the
th
impugned order dated 10 January, 2006 passed by the
JMFC, CBD, Navi Mumbai was quashed and set aside and a
direction was given that if any fresh crime is registered and
in case a lie detection test or brain mapping test is required
to be conducted on the Petitioner then 72 hours notice
should be given to the Petitioner. Petitioner No.1 then made
th
representation to the Senior Inspector of Police dated 7
August, 2006.
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6. It is the case of Petitioners that in spite of the order
passed in Criminal Writ Petition No.372 of 2006,
Investigating Officer arrested both the Petitioners and they
were shown arrested in C.R. No. I-228 of 2002 and the
learned Magistrate was pleased to remand them to police
nd
custody and then to judicial custody till 22 October, 2006.
Petitioners then filed Criminal Application No.2201 of 2006
challenging the order of remand passed by the learned
th
Judicial Magistrate, First Class, Vashi dated 8 October,
2006. In the said application, a statement was made by the
Public Prosecutor that the Petitioners would be released
forthwith and in view of that statement, Petition was
disposed of and other contentions, however, were kept open.
Petitioners, thereafter, filed this Petition seeking
compensation.
7. Mr. Chitnis, the learned Senior Counsel appearing on
behalf of the Petitioners submitted that after the acquittal of
the accused by the Trial Court, an FIR No.I-228 of 2002 was
no longer in existence and, as such, the Petitioners could not
have been arrested in the same C.R. Secondly, it was
submitted that the learned Single Judge of this Court in Writ
Petition No.372 of 2006 had clearly held that the said C.R.
No.I-228 of 2002 would not survive after a full fledged trial
was held and the accused in the said case were acquitted. It
was further submitted that the learned Single Judge also had
directed that in the event fresh C.R. was to be registered, 72
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hours notice should be given. It was submitted that in spite
of clear finding given by the learned Single Judge, without
giving notice and without registration of fresh C.R.,
Petitioners were arrested and were granted remand by the
learned Magistrate and they were kept in custody for seven
th th
days from 7 October, 2006 to 13 October, 2006 and,
therefore, the Petitioners were illegally detained. It was
submitted that, therefore, Respondents should be directed to
pay compensation @ Rs 25,000/- per day for seven days to
each of the Petitioners. Reliance was placed on number of
judgments of the Apex Court in support of the said
submission.
8. On the other hand, the learned APP appearing on behalf
of the State has invited our attention to the affidavit in reply
filed by the Investigating Officer. He submitted that, initially,
five persons were shown as accused in C.R. No.I-228 of 2002
and during the course of trial, the case against absconding
accused Sanjay Deoram Dolas was separated and the
remaining persons were tried. It was submitted that the fact
that the case was separated against the absconding accused
Sanjay Deoram Dolas was not brought to the notice of the
learned Single Judge (Coram: R.S. Mohite, J.) and, therefore,
it was observed that the said C.R. No.I-228 of 2002 cannot
survive on the conclusion of a full fledged trial which has
resulted in acquittal. It was submitted that since the trial
was separated, the said investigation in C.R. No.I-228 of
2002 was, thereafter, carried out with regard to the role
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played by the absconding accused persons and the
investigating agency proceeded against the Petitioners for
completing investigation in the matter and in the interest of
justice. It was submitted that, therefore, it could not be said
that the Petitioners were illegally detained. He further
submitted that the Petitioners were detained pursuant to the
order of remand passed by the Judicial Magistrate.
9. After having heard the learned Senior Counsel
appearing on behalf of the Petitioners and the learned APP
appearing on behalf of the Respondents – State at length, in
our view, it cannot be said that the Petitioners were illegally
detained by the Investigating Officer. It is an admitted
position that after the Petitioners were arrested, they were
immediately produced before the Judicial Magistrate and the
order of remand was passed and pursuant to the order of
nd
remand, they were kept in judicial custody till 22 October,
2006. The contention of Mr. Chitnis, the learned Senior
Counsel appearing on behalf of the Petitioners that C.R.
No.I-228 of 2002 could not survive on account of acquittal of
the four accused after a full fledged trial and the detention
of the Petitioners in the same C.R. amounted to illegal
detention, cannot be accepted. It has come on record that
one accused viz. Sanjay Deoram Dolas was absconding and
his trial was separated and, therefore, even though the four
accused were acquitted, C.R. No.I-228 of 2002 in respect of
Sanjay Deoram Dolas continued to remain on the file. It
appears that this fact was not brought to the notice of the
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learned Single Judge (Coram: R.S. Mohite, J.) and, therefore,
the learned Single Judge had made an observation that after
the full fledged trial of four accused and their acquittal, the
said C.R. could not survive. The said observations obviously
have been made because correct facts were not brought to
the notice of the court. It is a matter of record that,
thereafter, further investigation was carried out against
Sanjay Deoram Dolas and also the present Petitioners and
the separate charge-sheet has been filed against the
Petitioners and which is pending trial. That being the
position, it cannot be said that Investigating Officer had
acted illegally.
10. So far as the contention of Mr. Chitis, the learned Senior
Counsel appearing on behalf of the Petitioner that no notice
was given as directed by the learned Single Judge in Writ
Petition No.372 of 2006 is concerned, the said submission
also cannot be accepted. Perusal of the said order clearly
indicates that the order of the JMFC permitting lie detection
test and brain mapping test was challenged before the
learned Single Judge. The said order was set aside and the
learned Single Judge observed that if the Investigating
Agency wanted to carry out lie detection test or brain
mapping test of the Petitioner, in that event 72 hours notice
should be given by the Investigating Agency after the new
offence is registered. As the record indicates, the said C.R.
was further investigated against the absconding accused
since the trial was separated and no brain mapping test or
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lie detection test was to be conducted and, as such, question
of giving 72 hours notice did not arise. The charge-sheet
has been filed against the Petitioners and the criminal case
is pending against them.
11. Taking into consideration the aforesaid peculiar facts
and circumstances of the case, in our view, no case is made
our for awarding compensation to the Petitioners as the
detention of the Petitioners cannot be said to be illegal.
Ratio of judgments on which reliance is placed will not apply
to the facts of the present case since we are of the view that
detention of the Petitioners cannot be said to be illegal.
12. Petition is accordingly dismissed.
(P.D. KODE, J.) (V.M. KANADE, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2301 OF 2006
1. Smt. Surekha Dnyaneshwar Sonawane )
Aged about 37 years, )
residing at Row House No.6, )
Durga Society, Airoli, Navi Mumbai. )
)
2. Milind Govind Jadhav, )
Aged about 28 years, residing at )
Ram Nagar, Digha Village, Belapur Road, )
Navi Mumbai. ) .... Petitioners.
V/s
1. The Commissioner of Police, )
Navi Mumbai )
)
2. Shri Ashok Pandhare, )
Assistant Commissioner of Police, )
Vashi Division, Navi Mumbai )
)
3. Shri Padmakar G. Juikar, )
Senior Inspector of Police )
and Investigation Officer, )
Rabale Police Station, Navi Mumbai. )
)
4. State of Maharashtra ) ... Respondents.
---
Mr. S.R. Chitnis, Senior Counsel i/b Mr. Nitin Sejpal and
Ms Pooja Bhojne for Petitioners.
Dr. F.R. Shaikh, APP for the State.
----
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CORAM: V. M. KANADE &
P.D. KODE JJ.
Date on which the judgment
is reserved : 31/01/2012
Date on which the judgment
is pronounced: 21/02/2012
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. By this Petition which is filed under Article 226 of the
Constitution of India, Petitioners are seeking writ, order and
direction, directing the Respondents to pay compensation of
th
Rs 25,000/- each per day for their illegal detention from 7
th
October, 2006 to 13 October, 2006 and also for declaration
that the Petitioners were illegally arrested in C.R. No.I-2008
th th
from 7 October, 2006 to 13 October, 2006.
2. Brief facts are as under:-
3. One Dnyaneshwar Sonawane, who was the husband of
th
Petitioner No.1, was killed on 8 October, 2002. An FIR was
registered on the same day by the present Petitioner No.1
vide C.R. No. I-228 of 2002 for the offence punishable under
sections 302, 449, 147, 148, 149 read with section 34 of the
Indian Penal Code. Four persons were arrested by the Police
and charge-sheet came to be filed and the Sessions Judge,
Thane was pleased to acquit the four accused persons by his
::: Downloaded on - 01/04/2024 16:50:02 :::
3
(WP2301.2006)
th
judgment and order dated 16 August, 2003.
4. Thereafter, after two years, one Mohan Sonawane who
claimed to be the real uncle of the deceased, wrote a letter
to the President, Human Rights Commission, Mumbai in
which he alleged that he had learnt that Petitioner No.1
herself had planned her husband’s murder. The acting
Chairman of the Maharashtrra State Human Rights
th
Commission on 18 October, 2005 passed an order and
transmitted the complaint to the Commissioner in Mumbai
for disposal in accordance with law.
5. An application was filed by the Assistant Commissioner
th
of Police, Vashi Division, Navi Mumbai on 10 January, 2006
before the JMFC, CBD, Navi Mumbai, seeking permission to
conduct brain mapping test as well as lie detection test on
both the Petitioners and Mohan Sonawane. The said
application was allowed by the JMFC and the said order of
the JMFC was challenged by the Petitioners in Writ Petition
No.372 of 2006, which Writ Petition was allowed and the
th
impugned order dated 10 January, 2006 passed by the
JMFC, CBD, Navi Mumbai was quashed and set aside and a
direction was given that if any fresh crime is registered and
in case a lie detection test or brain mapping test is required
to be conducted on the Petitioner then 72 hours notice
should be given to the Petitioner. Petitioner No.1 then made
th
representation to the Senior Inspector of Police dated 7
August, 2006.
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6. It is the case of Petitioners that in spite of the order
passed in Criminal Writ Petition No.372 of 2006,
Investigating Officer arrested both the Petitioners and they
were shown arrested in C.R. No. I-228 of 2002 and the
learned Magistrate was pleased to remand them to police
nd
custody and then to judicial custody till 22 October, 2006.
Petitioners then filed Criminal Application No.2201 of 2006
challenging the order of remand passed by the learned
th
Judicial Magistrate, First Class, Vashi dated 8 October,
2006. In the said application, a statement was made by the
Public Prosecutor that the Petitioners would be released
forthwith and in view of that statement, Petition was
disposed of and other contentions, however, were kept open.
Petitioners, thereafter, filed this Petition seeking
compensation.
7. Mr. Chitnis, the learned Senior Counsel appearing on
behalf of the Petitioners submitted that after the acquittal of
the accused by the Trial Court, an FIR No.I-228 of 2002 was
no longer in existence and, as such, the Petitioners could not
have been arrested in the same C.R. Secondly, it was
submitted that the learned Single Judge of this Court in Writ
Petition No.372 of 2006 had clearly held that the said C.R.
No.I-228 of 2002 would not survive after a full fledged trial
was held and the accused in the said case were acquitted. It
was further submitted that the learned Single Judge also had
directed that in the event fresh C.R. was to be registered, 72
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hours notice should be given. It was submitted that in spite
of clear finding given by the learned Single Judge, without
giving notice and without registration of fresh C.R.,
Petitioners were arrested and were granted remand by the
learned Magistrate and they were kept in custody for seven
th th
days from 7 October, 2006 to 13 October, 2006 and,
therefore, the Petitioners were illegally detained. It was
submitted that, therefore, Respondents should be directed to
pay compensation @ Rs 25,000/- per day for seven days to
each of the Petitioners. Reliance was placed on number of
judgments of the Apex Court in support of the said
submission.
8. On the other hand, the learned APP appearing on behalf
of the State has invited our attention to the affidavit in reply
filed by the Investigating Officer. He submitted that, initially,
five persons were shown as accused in C.R. No.I-228 of 2002
and during the course of trial, the case against absconding
accused Sanjay Deoram Dolas was separated and the
remaining persons were tried. It was submitted that the fact
that the case was separated against the absconding accused
Sanjay Deoram Dolas was not brought to the notice of the
learned Single Judge (Coram: R.S. Mohite, J.) and, therefore,
it was observed that the said C.R. No.I-228 of 2002 cannot
survive on the conclusion of a full fledged trial which has
resulted in acquittal. It was submitted that since the trial
was separated, the said investigation in C.R. No.I-228 of
2002 was, thereafter, carried out with regard to the role
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played by the absconding accused persons and the
investigating agency proceeded against the Petitioners for
completing investigation in the matter and in the interest of
justice. It was submitted that, therefore, it could not be said
that the Petitioners were illegally detained. He further
submitted that the Petitioners were detained pursuant to the
order of remand passed by the Judicial Magistrate.
9. After having heard the learned Senior Counsel
appearing on behalf of the Petitioners and the learned APP
appearing on behalf of the Respondents – State at length, in
our view, it cannot be said that the Petitioners were illegally
detained by the Investigating Officer. It is an admitted
position that after the Petitioners were arrested, they were
immediately produced before the Judicial Magistrate and the
order of remand was passed and pursuant to the order of
nd
remand, they were kept in judicial custody till 22 October,
2006. The contention of Mr. Chitnis, the learned Senior
Counsel appearing on behalf of the Petitioners that C.R.
No.I-228 of 2002 could not survive on account of acquittal of
the four accused after a full fledged trial and the detention
of the Petitioners in the same C.R. amounted to illegal
detention, cannot be accepted. It has come on record that
one accused viz. Sanjay Deoram Dolas was absconding and
his trial was separated and, therefore, even though the four
accused were acquitted, C.R. No.I-228 of 2002 in respect of
Sanjay Deoram Dolas continued to remain on the file. It
appears that this fact was not brought to the notice of the
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learned Single Judge (Coram: R.S. Mohite, J.) and, therefore,
the learned Single Judge had made an observation that after
the full fledged trial of four accused and their acquittal, the
said C.R. could not survive. The said observations obviously
have been made because correct facts were not brought to
the notice of the court. It is a matter of record that,
thereafter, further investigation was carried out against
Sanjay Deoram Dolas and also the present Petitioners and
the separate charge-sheet has been filed against the
Petitioners and which is pending trial. That being the
position, it cannot be said that Investigating Officer had
acted illegally.
10. So far as the contention of Mr. Chitis, the learned Senior
Counsel appearing on behalf of the Petitioner that no notice
was given as directed by the learned Single Judge in Writ
Petition No.372 of 2006 is concerned, the said submission
also cannot be accepted. Perusal of the said order clearly
indicates that the order of the JMFC permitting lie detection
test and brain mapping test was challenged before the
learned Single Judge. The said order was set aside and the
learned Single Judge observed that if the Investigating
Agency wanted to carry out lie detection test or brain
mapping test of the Petitioner, in that event 72 hours notice
should be given by the Investigating Agency after the new
offence is registered. As the record indicates, the said C.R.
was further investigated against the absconding accused
since the trial was separated and no brain mapping test or
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lie detection test was to be conducted and, as such, question
of giving 72 hours notice did not arise. The charge-sheet
has been filed against the Petitioners and the criminal case
is pending against them.
11. Taking into consideration the aforesaid peculiar facts
and circumstances of the case, in our view, no case is made
our for awarding compensation to the Petitioners as the
detention of the Petitioners cannot be said to be illegal.
Ratio of judgments on which reliance is placed will not apply
to the facts of the present case since we are of the view that
detention of the Petitioners cannot be said to be illegal.
12. Petition is accordingly dismissed.
(P.D. KODE, J.) (V.M. KANADE, J.)
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