Bhavesh Sheth vs The State Of Maharashtra And Anr
- Court
- Bombay High Court
TRUPTI
SADANAND
BAMNE
CNR No : HCBM010032682018
2026:BHC-AS:43037-DB
Digitally signed by
TRUPTI SADANAND
BAMNE
Date: 2026.10.22
17:28:54 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4458 OF 2017
Bipin Satish Chandra Agrwal ]
Age: 49 years, Indian Inhabitant ]
residing at 1401, Veena Apartments, ]
Walkeshwar, Mumbai 400 006 ] … Petitioner
V/s.
1. State of Maharashtra ]
2. Mahesh Lamkhade, ]
Sub-Inspector of Police, ]
Azad Maidan Police Station, ]
C.S.T., Mumbai ] … Respondents
WITH
CRIMINAL APPLICATION NO.32 OF 2018
Bhavesh Sheth ] … Applicant
In the matter between:
Bipin Satish Chandra Agrwal ] … Petitioner
V/s.
State of Maharashtra & Anr. ] … Respondents
______________________________________
Mr. Bipin Agrwal, Petitioner in person.
Mr. J. P. Yagnik, APP for the Respondent No. 1-State.
Mr. Anvay Pawar a/w. Adv. Yuvraj Tidke for Respondent No.2.
Ms. Aarti Gaware, API and Ms. Kajal Pansare, PSI, Azad Maidan Police
Station, present.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
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RESERVED ON : 20 August, 2026.
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PRONOUNCED ON : 22 October, 2026.
Judgment (Per : Kamal Khata, J) :-
1) By this Writ Petition under Article 226 of the Constitution of
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India, the Petitioner seeks a relief that, his arrest on 4 August 2017, be
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declared illegal, unlawful and effected without due process of law. He
further seeks a departmental inquiry against the Sub Inspector of Police
(Respondent No. 2) and all concerned Officers. He additionally seeks
compensation from the State for illegal detention and deprivation of his
lawful rights.
2) The Criminal Application is filed for intervention by the
Developer M/s. Seth and Sonal Developers.
Petitioner’s case:
3) The Petitioner is an Indian citizen, residing at Walkeshwar,
Mumbai engaged in the business of import and export, inter alia, of
garments. The Petitioner’s mother-in law namely Smt. Asawari K. Kulkarni,
a senior citizen aged about 70 years, resided in a building known as ‘The
New Aarti Co-operative Housing Society’ situated at Old Nagardas Road,
Andheri East, Mumbai-69(the Society). The Society was undergoing
redevelopment, undertaken by a partnership firm, namely, M/s. Seth and
Sonal Developers, represented by partners Bhavesh Seth and Kamlesh Vora.
Owing to certain mismanagement in the Society, the building was
demolished without execution of individual Agreements with the
Developers. Following the demise of her husband, to secure her interest in
the Flat, being her sole valuable asset, she appointed the Petitioner, being
the only male member in the family, as her Constituted Attorney to
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negotiate on her behalf with the builder.
4) The Petitioner was accordingly negotiating with the builder
either to sell the flat in the Society or to secure a larger area of flat post
redevelopment in addition to the transit rent. In this regard, pursuant to a
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telephonic conversation on 2 August 2017, the Petitioner agreed to meet
the Developers at their office at 3/B, 35, Court Chambers, New Marine
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Lines, Mumbai- 20, on 4 August 2017 at around 11 a.m. On reaching the
office, he was informed that, the Developers were unable to meet him then
and the meeting was rescheduled to 6:00 pm. The Petitioner accordingly
reached the builder’s office at around 6:00 pm. He negotiated for the sale of
Flat for approximately Rs.1 Crore 64 lakhs and to show their bonafide and
close the deal at that rate, the Developers handed him an advance sum of
Rs.2,00,000/-. However, no sooner he received the cash, the Police arrived,
handcuffed him and took him to the Azad Maidan Police Station.
5) The Developers lodged a complaint against the Petitioner
registered as, F.I.R. No.243 of 2017, for extortion under Section 384 of the
Indian Penal Code, 1860 (‘IPC’). At around 8.20 pm., a Notice under
Section 41A of the Code of Criminal Procedure, 1973 (CrPC) was served
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upon him. He was produced before the learned Magistrate, 64 Court on
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Saturday i.e. 5 August 2017 at around 1.45 pm. and was remanded in
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Police custody till Tuesday i.e. 8 August 2017. No reasons were given in
the Order of remand. Moreover, without citing any reasons, the police
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remand was continued till 10 August 2017. Thereafter, on 10 August
2017, upon being produced before the Magistrate, he was remanded to
judicial custody, again without any cogent reasons for the same.
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6) Petitioner’s Application for bail filed on 10 August 2017, was
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listed for hearing on 14 August 2017 and owing to the unavailability of
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the learned Magistrate the case stood adjourned to 16 August 2017. Once
again, without giving any cogent reasons, the Petitioner’s remand to judicial
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custody was continued until 24 August 2017. The Petitioner thereafter
applied for bail before the Sessions Court, which was granted by an Order
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dated 28 August 2017 and he was released on bail of Rs.25,000/-.
7) Mr. Bipin Agrwal appeared in person. He narrated the entire
sequence of events stated hereinabove with dignity, maintaining calm and
composure throughout and conducted the hearing with professionalism.
7.1) He submitted that, the first complaint against him was
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apparently filed sometime on 23 June 2017, with the Azad Maidan Police
Station but no notice or summons were issued pursuant thereto.
7.2) He submitted that, his arrest was entirely illegal and that he
had been falsely implicated in a case arising purely out of collusion between
the Respondent No.2 and the Developers. He contended that Respondent
No. 2 had manipulated records to implicate him.
7.3) He drew our attention to Section 384 of the IPC and submitted
that, it carries a maximum sentence of three years upon conviction. He
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submitted that, there was no reason to arrest him. The Notice under Section
41A was served upon him only after his arrest, at around 8.20 pm. No
investigation was conducted by the Respondents following its service. There
was no opportunity granted to him for any compliance therewith and
therefore there was total non-compliance therewith and despite that, he
was arrested.
7.4) Mr. Agrwal took us through the record and submitted that, the
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Police documents namely the Arrest Form, FIR No.243 of 2017 dated 4
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August 2017, two Station diary entry Nos. 50 and 55, both dated 4 August
2017, reflect several serious lacunae and inconsistencies clearly indicating
his arrest was malafide and illegal.
7.5) He submitted that, the Police custody for six days followed by
judicial custody for a further eighteen days, was entirely unwarranted and
his illegal arrest caused defamation and a permanent blot on his goodwill
and standing as a businessman. He contended that, the Developers on the
strength of concocted stories, without any material to substantiate the
same, procured his arrest and abused the process of law. All these actions
were triggered by the Developers to prevent him from exposing their
wrongdoings in collusion with certain members of the Society. Relying upon
the judgment of the Hon’ble Supreme Court in the case of Arnesh Kumar vs.
State of Bihar reported in ( 2014) 8 SCC 273 , he contended that, the arrest
was in breach and violation of the settled principles of law therein.
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Respondents’ case:
8) Mr. Yagnik learned APP appearing for the State, opposed the
Petition. He relied upon the decision of this Court (Nagpur Bench) to
submit that “grounds of arrest” and “reasons of arrest” bear two different
connotations and that the CrPC does not prescribe a specific mode or time
frame for communication of grounds of arrest. He submitted that the
“grounds of arrest” are required to be furnished to the detenu two hours
prior to the remand, and this was not done in the present case.
9) Mr. Anway Pawar for the Respondent No. 2 also strenuously
opposed the Petition. He relied upon the Bombay Police Manual, 1956
Volume III and in particular Rule No. 35, to submit that he had scrupulously
and meticulously complied with his statutory duty as per the rules. He
submitted that, the Ld. Magistrate had passed the Order of remand, thereby
ratifying the legality of the arrest. He relied on the following decisions in
support of his contentions.
a) Satender Kumar Antil v Central Bureau of Investigation
and Anr. reported in 2026 SCC OnLine SC 162.
b) Arnesh Kumar v State of Bihar reported in (2014) 8 SCC
273.
c) Superintendent of Police, CBI & Ors. v Tapan Kumar
Singh reported in (2003) 6 SCC 175.
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9.1) In light of the above, Mr. Pawar submitted that, the Respondent
No. 2 had discharged his duty by signing the FIR, arrest form, 41(1)(a) and
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41(b) notice and Remand Report dated 5 August 2017. He relied upon the
panchnama to submit that, the Respondent No.2 was not present during the
arrest and had not handcuffed him. He accordingly submitted that, the
Petition is false frivolous, vexatious and lacks material substance and
deserves to be dismissed.
10) We have heard Mr. Agrwal, appearing in person, Mr. Yagnik,
learned APP for the State, Mr. Anvay Pawar for Respondent No.2 and have
carefully perused the entire record.
11) After hearing the Petitioner at length, we felt a sense of deep
anguish imagining what he went through. Clearly this is a case of sheer
abuse of process by the Developer in collusion with the Police. It is evident
from the documents placed on record. It is a classic case where a Police Sub
Inspector has exploited his official position and weaponized Police
machinery at his command, to advance the Developer’s interest against the
Petitioner, to wreak havoc in the Petitioner’s life apparently because he did
not succumb to their pressure to accept the deal offered and threatened
them to expose their wrongdoings along with certain Society members. The
reasons are obvious and not too far to seek.
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Manipulation of Documents:
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12) Station Diary Entry No. 50 dated 4 August 2019 at 17.10
hours:
a) This entry reveals that Complainants statement was
recorded and to ascertain the truthfulness no
preliminary investigation or verification of the
genuineness of the complaint was carried out by the
Respondent No.2.
b) Although the Police claim to have prior intimation
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through written complaint dated 23 June 2017, there is
no mention of the Complainant’s name in the said Diary.
This is anomalous and further undermines the narrative.
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13) Station Diary Entry No. 55 dated 4 August 2019 at 20:20
hours:
a) The Police records that it completed the following tasks
within 2 hours and 10 minutes:
Registration of the FIR. The timing demonstrates that
the FIR was filed after the arrest of the Petitioner not
before it, though the police had knowledge of Complaint
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dated 23 June, 2017. This is contrary to the settled
principles of criminal jurisprudence.
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14) FIR No. 243 of 2017 dated 4 August 2017:
a) The Complainant’s statement, in para 5 of the FIR,
concocts a dispute between the Petitioner and his
mother-in-law and attributes to the Petitioner an
intention to usurp the property. However, the same is
belied with the documents on record such as, the Power
of Attorney, Individual Agreement (unregistered) dated
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8 May 2017 which marks Petitioner as the witness and
includes the share certificate no. 50 in the name of Smt.
Asawari K Kulkarni and para 29 thereof which records
that all notices/intimations by complainant to be sent at
the Petitioner’s address at Walkeshwar Mumbai owing to
the mother-in-law residing with her daughter and
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Petitioner. Additionally, the emails from 6 April 2017 to
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29 April 2017 also record the communication for
Indemnity Bond for indemnifying the Society. These
documents establish a relationship of lawful attorney,
not dispossession.
b) Though, the Complainant’s statement claims lodging of a
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written complaint on 23 June 2017, the RTI response
from the Police contradicts it, stating no complaint was
received. FIR fails to mention the name of the
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complainant. These serious lacunae are unexplained.
c) Though the Police claims that, complaint copy was filed
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with the chargesheet before the Ld. Magistrate 64
Court, the chargesheet itself states that Police had not
annexed the copy of the written complaint by the
informant.
d) These mutually contradictory versions, taken together
with the foregoing evidence, compel the conclusion that,
the statements of the Police were made with a deliberate
intent to implicate the Petitioner in a false case of
extortion and justify his unlawful arrest.
15) Arrest Form: An examination of the Arrest Form annexed at
page Nos.520 and 523 to the charge-sheet reveals the following
irregularities:
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a) the form duly filled with the date as 5 August 2017 at
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four places has been overwritten as 4 August 2017 at
three places. Undoubtedly, this constitutes tampering
with a statutorily maintained document.
b) Serial No. 1 records that the Police arrest registration
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No.262 is dated 5 August 2017, whereas the Petitioner
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was arrested on 4 August 2017. This discrepancy
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exposes the falsity of the arrest record.
c) Serial No. 7 which should contain information regarding
the medical examination, is left blank, as against the
Station Diary 55, which records that, the medical
examination was conducted. The contradiction is
apparent as it is filled with falsehood.
d) Serial No. 8 which statutorily requires information
concerning the grounds of arrest and the legal rights of
the person arrested is left blank though statutorily
mandated to be filled. Furthermore, the date and time of
arrest intimation given to his wife Mrs. Shalaka, is also
blank.
e) These omissions are telling; they suggest that arrest
intimation was effected much subsequent to the arrest as
the Petitioner contends. We find credible the Petitioner’s
assertion that, signatures of the Petitioner and his wife
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were obtained between 1:20 a.m. and 2:00 a.m. on 5
August 2017. We also find merit in the contention that to
align the information in FIR and the Station Diaries the
Police resorted to overwriting the date to manipulate the
record but however, were unable to alter the
Registration No. 262 in the Arrest Register which
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recorded the date as 5 August 2017.
f) Serial No. 12, characterizes the Petitioner as a recidivist
who is likely to abscond on bail. This categorization is
wholly unsupported by even iota of any corroborative
material. The Police have placed no evidence or any
material on record that, the Petitioner possessed any
criminal antecedents. The arrest of the Petitioner was
done without verifying the genuineness of the complaint.
The classification appears to have been made on an
deliberate assumption without any evidence or
information collected by the Respondents. This
contravenes the provisions of Section 41A of the CrPC.
16) With regard to the service of Notice under section 41-A of CrPC
to the Petitioner, we find no statements or evidence on record to show that
the Petitioner was granted a genuine opportunity to comply with the Notice
as per the provisions of 41-A (2) and (3). No reasons are recorded by the
Police under 41-A to show that petitioner had failed to comply with the
terms of the notice. Evidently, the arrest was prior to the Notice and
therefore undoubtedly illegal under the well-settled law.
17) We do not find any material indicating medical examination of
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the Petitioner carried out on 4 August 2017.
18) We also find merit in the submission of the Petitioner regarding
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the voice sample. The voice sample was dispatched from the Azad Maidan
Police Station to the Forensic Department at Kalina, analyzed, returned, and
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received by the Police Station all on the same day, namely 18 October
2017 and the Forensic Report too was prepared on the same day. This same
day turnaround is remarkable and inconsistent with usual and normal
forensic procedure. We regularly come across with cases that, the
spectrography test reports from FSL are given leisurely and with
unaccounted delay. Furthermore, the Respondents violated the successive
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Orders of the Hon’ble Sessions Court dated 6 February 2018, 3 April
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2018, 1 February 2020 and 10 September 2020 directing compliance (to
record the voice sample) with the guidelines established by the Supreme
Court in Sudhir Choudhary vs. State (NCT) of Delhi (Cr. Appeal No.700-701
of 2016 arising out of SPL No.3009-3010 of 2015).
19) We also find merit in the contention of the Petitioner that, the
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Respondents have deliberately not annexed the Forensic Report dated 18
October 2017 along with the charge-sheet and have falsely submitted that,
they have the necessary transcript/documents collected by the I.O. for
investigating purposes and were unable to provide the same before the
Hon’ble Sessions Court. The willful suppression coupled with blatant denial
regarding the arrest of the Petitioner by the Respondent in breach of the
Judgment of the Hon’ble Supreme Court in Arnesh Kumar (supra) clearly
indicates mala fide intent to conceal the wrongful acts.
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20) The response of the Respondent No. 2 clearly lacks substance.
Apart from bald statements there is nothing produced on record to show
that the Police Officer had collected any information either before or after
the arrest. There is nothing on record to show that the Petitioner was an
unknown person to the Informant or otherwise. He was the Power of
Attorney holder for his mother-in-law, who was a flat owner in the Society
which the complainant was developing. If that was so, the Petitioner was
not an unknown person. Assuming the Petitioner was arrested under a
mistaken impression and the Police had ‘reasons to believe’ that he was an
extortionist, a preliminary inquiry with the Petitioner would have revealed
the correct facts. The Police deliberately did not take any pains to find out
why was the cash given. It could have been against advance rent payable,
sale consideration or deposit toward other contractual obligation. No effort
was made by the Respondent No.2 to ascertain the truth behind receipt of
cash. The Police have failed to show in what manner the requirements of
Section 41-A of CrPC have been complied with, particularly when the
offence falls under Section 384 of the IPC, with a maximum punishment
upto 3 years.
21) The judgment in Satender Kumar Antil (supra) does not in any
manner assist the Respondent No.2, but in fact, supports the contention of
the Petitioner. Paragraph 32 thereof holds that, a police officer cannot
simply arrest a person to ask questions. The officer must satisfy himself why
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the investigation qua the offence cannot proceed against the concerned
individual without custody. There is no material on record to show that the
Police had any satisfactory answers. We therefore conclude that the arrest
and remand were high handed, arbitrary and made without application of
mind and without following the basic statutory provisions of law.
22) Similarly, Arnesh Kumar (supra) too does not assist the
Respondent No. 2 and in fact supports the Petitioner. The Police have failed
to provide satisfactory answers to critical questions: Why is arrest
necessary?, Is it really required?, What purpose will it serve? and What
object will it achieve? We do not find any legally justifiable answers to the
aforesaid questions, leading us to safely conclude that, the arrest was
malafide and made with an ulterior motive to harass, pressurize and tarnish
the reputation of the Petitioner in the Society.
23) The reliance placed on the case of Superintendent of Police,
CBI (supra) also does not assist the Respondents. The Police officers were
obliged to collect information, which they deliberately failed to collect. The
reply filed by the Respondent No. 2 does not mention any steps taken to
find out, who was the Petitioner and why was cash paid to him by the
Developers? And whether he was a continuing threat to the complainant
although he had no criminal antecedents.
24) Upon examining the entire case and the record, we find that
the Police have attempted to characterize the Petitioner as some gangster,
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history-sheeter or an extortionist without having an iota of evidence in that
regard and even without an investigation into genuineness of complaint.
Even a simple analysis and investigation of the messages and
communication on record reveal that the Petitioner was alleging
wrongdoings by the partners of the Developers. The Police have entirely
failed to do so. It clearly appears to us that the Respondent No.2 in
connivance with the Developer/ Intervener, with a view to prevent the
Petitioner from pursuing his lawful remedy has falsely implicated him in the
present crime by clearly con-writing a story of alleged extortion.
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25) We find that, the learned Magistrate of the 64 Court was also
responsible for the Petitioner’s wrongful detention. No reasons have been
recorded for justifying continuation of remand of the Petitioner. We find
that the Ld. Magistrate has failed to independently apply his mind and
adopted a very casual approach, thereby causing grave prejudice to the
Petitioner on account of continued entirely unlawful arrest and detention.
26) We acknowledge that the unlawful arrest has caused
substantial financial loss to the Petitioner, in addition to irreparable damage
to his reputation and lasting blemish on his credibility.
27) In view of the above, we pass the following Order:
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a) We hereby declare that the arrest of the Petitioner on 4
August 2017 was unlawful and illegal.
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b) The State shall pay compensation to the Petitioner in the
sum of Rs.5,00,000/- on account of the unlawful arrest
and detention for six days in police custody and for
twenty days in judicial custody within a period of two
weeks from the date of uploading of the Order on the
official website of the High Court of Bombay.
c) The State is directed to initiate appropriate strict action
including an order of immediate suspension against the
Respondent No. 2 and all concerned officers and recover
the proportionate compensation from his/their salaries if
so advised.
d) We direct the Registry to place this Judgment before the
Administrative Committee of the Bombay High Court for
taking appropriate action against the learned
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Magistrate(s) of the 64 Court, Mumbai who
adjudicated the remand application of the Petitioner on
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5 August 2017, 8 August 2017, 10 August 2017 and
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Bail Application on 16 August 2017 and 22 August
2017 for having wrongfully and without verifying and
carefully examining the matter and without recording
any reasons permitted police and judicial custody of the
Petitioner.
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28) Petition is accordingly allowed in the aforesaid terms.
29) In view of the disposal of Petition, the Criminal Application No.
32 of 2018 filed therein does not survive and is accordingly disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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