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Prakash Waman Shinde Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal;Motor Vehicles
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petitions Nos. 457, 458, 459 and 460 of 1983
Judge
Reported in1984(1)BomCR573
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 42, 445 and 446; Motor Vechicles Act, 1939 - Sections 128(2)
AppellantPrakash Waman Shinde
RespondentState of Maharashtra
Appellant AdvocateS.R. Chitnis, Adv.
Respondent AdvocateC.M. Kothari, P.P.
Excerpt:
(i) criminal - false allegation - sections 42, 445 and 446 of code of civil procedure, 1973 and sections 22, 25, 38, 94, 106, 112 and 128 (2) and rule 103 of motor vehicles act, 1939 - allegation against petitioner that he was driving auto-rickshaw without road permit - no dispute that owner of vehicle was same person as holder of permit - owner held valid permit - no contravention of provision of rule 103. (ii) false allegation - allegation against petitioner that he drove vehicle without holding insurance policy - contravention of section 94 - record nowhere showed that certificate was asked and that accused failed to produce it - officer later on held that section 94 had no application so he founded contravention under section 106 - non production of certificate when demanded by.....sharad manohar, j.1. these four petitions have been filed by one common petitioner prakash waman shinde. his grievance is about the incident dated 22nd august, 1983 in which three police officers, that is to say, one inspector of police, a sub-inspector of police and a police constable allegedly caught hold of the petitioner who had parked his auto-rickshaw at the lawful place and hauled him up to the police station at about 8.30 a.m. on that date, arrested him quite illegally, kept him in the police lock-up till 8.30 p.m. concocted some trumped up charges against him, made him shell out a total sum of rs. 800/- as deposits at the police station by way of bail and released him thereafter only to have the said amount of rs. 800/- forfeited by the metropolitan magistrate on the next day in.....
Judgment:

Sharad Manohar, J.

1. These four petitions have been filed by one common petitioner Prakash Waman Shinde. His grievance is about the incident dated 22nd August, 1983 in which three police officers, that is to say, one Inspector of Police, a sub-inspector of Police and a Police Constable allegedly caught hold of the petitioner who had parked his auto-rickshaw at the lawful place and hauled him up to the Police Station at about 8.30 a.m. on that date, arrested him quite illegally, kept him in the police lock-up till 8.30 p.m. concocted some trumped up charges against him, made him shell out a total sum of Rs. 800/- as deposits at the Police Station by way of bail and released him thereafter only to have the said amount of Rs. 800/- forfeited by the Metropolitan Magistrate on the next day in the circumstances beyond the control of the petitioner.

2. The facts out of which this present petition arises can be gathered only from the averments made in the petition. So far as the record of the lower Court and the record at the Police Station are concerned, very little assistance is received for understanding even the prosecution case from that record.

The facts alleged by the petitioner are as follows :---

(a) Auto-rickshaw No. MHT 8261 belongs to one Vinayak Chango Chaudhari, but it is the petitioner who plies the rickshaw for hire within the area of the Regional Transport Office, at Thane. The vehicle was registered with the said authority and even a permit for plying the said auto-rickshaw within the said limit had been issued by the Regional Transport Officer in respect of the vehicle. The permit was valid upto 31st October, 1983.

It is the petitioner's contention that sometimes in the first week of August 1983, a Police Constable attached to Mulund Police Station, who was on traffic duty at the Mulund Check Naka, was assaulted by some lorry drivers and by some members of the public. This Mulund Check Naka is a place which is the dividing line between Bombay and Thane. It appears that some of the drivers of the auto-rickshaws also were suspected to be having a finger in the pie. According to the petitioner, this assault resulted from the fact that, according to the lorry drivers and the rickshaw drivers and the members of the public, the attitude of the Police Constable in question towards these lorry drivers and the rickshaw drivers of the Thane was extremely arrogant. The petitioner's plea is that he had nothing to do with the incident of assault. But the fact remains that the traffic duty constable attached to the Mulund Police Station as also the other officers of the Police Station started nourishing a grievance against the rickshaw drivers plying even in the Thane region and wanted to take revenge upon them by hook or crook.

(b) The precise grievance of the petitioner, in the instant case, is that on 22nd August, 1983, at about 8.30 a.m., he had parked his rickshaw near the Check Naka on the Lal Bahadur Shastri Marg but well within the Thane limits and not within the area which fell in the Bombay region. Along with petitioner, other rickshaw drivers also had parked their rickshaws at that place and all of them were waiting for the customers. The grievance of the petitioner is that all of a sudden, the Police Constable and the Police Officers on traffic duty attached to the Mulund Police Station made a swoop upon nine of the auto-rickshaws and their drivers including the petitioner even though all the auto-rickshaws were parked not within in the Bombay limit but within the Thane limit of the Lal Bahadur Shastri Marg. The grievance is that for no rhyme or reason all of them were hauled up to the Police Station and were put in a lock up. So far as the petitioner was concerned, he was asked to produce his driving licence, the requisite permit and the insurance policy, that all of those documents he produced and still his arrest continued till 8.30 p.m. in the police lock-up. He was required to give bail in cash in the sum of Rs. 800/- and four trumped-up charges were levelled against him and he was made to sign on the four bail-bonds for the sum of Rs. 200/- each. He was thereafter asked to attend the Police Station the next day in the morning. The grievance of the petitioner is that he did attend the Police Station in the morning of the next day when he was told that his case was to be heard in the Court of the Metropolitan Magistrate, 27th Court, Mulund. The petitioner rushed to that Court only to find that his case had already been called out and an order in that case was passed by the learned Magistrate in all the four cases forfeiting the amount of Rs. 800/- deposited by the petitioner by way of bail. No further order was passed by the learned Magistrate; no order was obtained by the officer concerned for issuance of warrant against the petitioner. In fact nothing had been done either by the Police Officer or by the Court as regards the charges which were filed by the Police Officer concerned in the Court against the Petitioner.

It is against this order of forfeiture of the said total amount of Rs. 800/- (Rs. 200/- in each of the cases) that the present four petitions are filed by the petitioner in this Court.

3. All the four cases, really speaking, arise out of the one and the same incident, though technically, they had to be instituted separately. As a matter of fact, a consolidated receipt of Rs. 800/- has been given by the Police Officer to the petitioner for the bail of Rs. 200/- in respect of each of the charges. The entire question has got to be disposed of on the backdrop of a common background. Hence, all these petitions are being disposed of by me by this common judgment.

4. I will first deal with Petition No. 457 of 1983. The charge in this case purports to be one of the contravention of Rule 103 under the Motor Vehicles Act. A cryptic statement of facts relating to the allegation against the petitioner is to the effect that he did drive his auto-rickshaw without a road permit along the L.B.S. Marg, Mulund Check Naka and thereby committed an offence under Rule 103 of the Motor Vehicles Act.

If one turns to the relevant Rule 103 of the Motor Vehicles Rules, one finds oneself totally at a loss to understand as to on what basis such a charge could be levelled against the petitioner. The said Rule 103 refers to the permit that is required to be held by the owner of a transport vehicle. The transport vehicle cannot be plied without and in accordance with the permit issued by the Authority. The permit consists of two parts : Part 'A' and Part 'B'. The permit naturally relates to the particular area in which the transport vehicle is to be plied. As per Rule 103, part 'A' of the permit has to be in possession of the owner of the vehicle at all times. There is no dispute that the owner of the vehicle is the same person as the holder of the permit within the meaning of said Rule 103. It has been disputed and it cannot be disputed that there is a well marked difference between the holder of a permit of a transport vehicle and the driver of the transport vehicle. Rule 103 mentions in so many words that part 'A' shall always be in possession of the holder thereof and shall be produced on demand made at any reasonable time by the officer of the Regional Transport Authority or any Police officer not below the rank of a Sub-Inspector. There is no provision in said Rule 103 that part 'B' permit will be there with the driver of the transport vehicle at all times. I do not mean to say that driver of the vehicle is not required to keep with himself the part 'B' permit. All that I want to emphasize is that the charge which refers to contravention of said Rule 103 is on the face of it is meaningless, because all that the charge can contemplate is that the petitioner did not produce part 'A' of the permit which he is not required under law to be if possession at all. Moreover, if at all any offence could be said to have been committed by the owner of the vehicle, the owner would have to be given at least 10 days' time for production of part 'A' of the permit. It is not disputed before me that the owner of the vehicle in fact holds the valid permit for the autorickshaw for the period in question. It cannot, therefore, be held by any stretch of imagination that the petitioner has in any way contravened any part of the provisions contained in Rule 103 of the Act.

There is no doubt that the provision in section 123 of the Motor Vehicles Act makes it an offence to drive a motor vehicle without a valid permit under section 42 of the Act or to drive in contravention of the provision of the said section. But the officer concerned has not as much as murmered in the said charge that any offence contemplated by section 123 of the Vehicles Act was committed by the petitioner.

In this Court, the officer was given an opportunity to file his affidavit. I have gone through the said affidavit and I find that even in the said affidavit not as much as a whisper of any statement is to be found to the effect that any permit contemplated by section 123 of the Act was asked for by the officer from the petitioner and that the same was not shown by the petitioner. Sub-rule (2) or Rule 103 no doubt provides that any officer or any Police Officer may impound any transport vehicle for the purpose of inspecting part 'B' of the permit. But it is not the case of the officer concerned either in the charge or in the affidavit that he impounded the vehicle and found that no permit was held by him. In fact the charge is not to the effect that the petitioner was holding permit for the Thane region and that he was driving the vehicle in the Bombay region.

Having regard to all facts and aspects, no room is left for doubt that the charge involved in the above mentioned writ Petition (Writ Petition No. 457 of 1983) is just a trumped-up charge filed by the officer upon being actuated by motives which were, probably, not immune from a legitimate accusation of being oblique ones.

I will presently come to the question as to whether the petitioner's arrest for 12 hours on such trumped-up charges can be justified on even other grounds.

5. Let me now deal with the facts and questions involved in the Writ Petition No. 458 of 1983.

The charge in that case levelled against the petitioner purported to be under section 94 of the Motor Vehicles Act reads with section 112 of the same and the cryptic allegation of facts made, the petitioner is to the effect that on the date in question he drove the motor vehicle along L.B.S Marg, Mulund Check Naka, without holding the insurance policy. In this connection, Mr. Chitnis pointed out at the outset the reckless manner in which the officer concerned has proceeded to draft the charge against the petitioner. He pointed out that of at all any section had any application, it would be section 125 of the Motor Vehicles Act and not section 112 of the same at all. He pointed out that section 94 also could not have any application whatsoever.

Section 94 provides, inter alia, that no person shall drive a vehicle unless there is in force a valid policy of insurance in relation to the vehicle. Not have such a policy is itself an offence made punishable under section 125 of the Act. I may also conveniently turn to section 106 of the Act at this stage. That section requires that every person driving a motor vehicle in a public place must produce the certificate of insurance in relation to the vehicle to a police officer in uniform or on demand. Non-production of such a certificate of insurance when demanded by the officer is a distinct offence by itself.

Reverting to the charge once again, it can be readily seen that the allegation of offence is not to the effect that the petitioner was called upon to show the insurance certificate and that he failed to produce the same, such a charge would be governed by section 106 of the Act, not by section 94 of the same. If, in normal circumstances, the statement contained in the charge setting out the allegation had made even a brief reference to the fact that the insurance certificate was asked for but was not produced by the driver concerned the mere fact that instead of mentioning the contravention of section 106 of the Act, the contravention of section 94 was referred to, it would have been held by me to be a matter of no consequence, because, to may mind, normally speaking, what label is attached to the particular set of facts which constitute an offence is something which is a matter of technically and I, for one, refuse, always, to be swayed by such considerations of technicalities. But, in the instant case, the position is that not only the mention of the section but even the statement of facts leave no room for doubt that the certificate of insurance was not asked for by the Police Officer at all. The grievance of the officer appears to be that the petitioner did not hold any insurance policy, which is an offence contemplated by section 94 read with section 125 of the Act only.

In this Court, an affidavit has been filed by the officer concerned. I may state here that the affidavit has been filed by the officer after long arguments were advanced across the bar and after this Court was prima facie satisfied that the certificate of insurance must not have been asked for by the officer on the spot where the petitioner was accosted by the Police Officer. Throughout the arguments before me it was contended that at the spot itself, that is to say, near the Check Naka where the petitioner and the other rickshaw drivers were accosted by the police, they were called upon to produce the certificate of insurance and it is because they did not produce the certificate of insurance that they were taken to the police station, in the affidavit filed before me after long deliberation, the officer has stated that the demand for the certificate of insurance was made by the Police Officer at the Police Station. No such fact is mentioned in the charge. I do not find any reference to this fact anywhere in the police record. Moreover, the statement in the affidavit runs counter to the original contention, which contention was urged before this Court that the certificate of insurance was asked for at the spot itself. Significantly enough, reference to section 106 of the Act finds a place for the first time in the affidavit. Nowhere in the charge or in any other part of the police record reference to an offence under this section is as much as murmured. The affidavit in question clearly and un-mistakably smell of mid-night oil.

The certificate of insurance was in fact produced. The contention of the learned Public Prosecutor was that non-production of the certificate of insurance was itself an offence irrespective of the fact that the insurance policy was in fact held by the owner or the driver concerned. There is no dispute about the correctness of this proposition. The point is that until the date of the affidavit, the officer was blissfully believing or, rather, he wanted the Court to believe that he was believing that the owner of the vehicle was not holding any insurance policy and that is why he referred to the contravention of section 94 of the Act. Upon what basis he founded the belief is something of a mystery, because the record nowhere shows that he asked for the insurance certificate and that the accused failed to produce it. When it was pointed out that section 94 of the Act had no application whatsoever, he invented the offence under section 106 of the Act. The charge under section 94 read with section 112 of the Act is, therefore, equally a trumped-up charge.

6. Let me now turn to Writ Petition No. 459 of 1983. The charge purports to be either under section 22 or section 38 of the Act read with section 112 of the same and the allegation is that at the relevant time the petitioner was driving the vehicle without the fitness certificate as required by said section 22 or section 38.

Section 22 of the Act provides that no person shall drive any motor vehicle unless the same has been registered in accordance with Chapter 3 and unless a registration make is displayed on the vehicle in the prescribed manner. Now, in the instant case, the fact that the vehicle in the registered cannot be doubted at all. No person claiming to have a grey cell in the cerebrum could have contended that the vehicle was not registered. The registration number was very much there on the vehicle. Even today before me no argument was advanced on the basis that the vehicle in fact was not registered or there existed any circumstance which gave room for doubt for the officer as regards the valid registration of the vehicle. Section 22 as such, therefore has no direct application to the facts of the case.

Section 38 of the Act provides that no transport vehicle shall be deemed to be validly registered for the purpose of section 22 unless it carried a certificate of fitness in the form prescribed by the said section. It can be, therefore, stated that if the fitness certificate was not carried by the petitioner the vehicle was not deemed to be validly registered at all. But the contention of the petitioner is that he was very much in possession of the fitness certificate at the time when he was accosted by the police and his contention is that he in fact had produced the certificate before the Police Officer. In reply to the said contention, all that the officer has stated in the said affidavit is that the petitioner has failed to produce the certificate of fitness required under section 38 of the Act at the Police Station. But, in my mind, this statement is just incredible apart from being unacceptable even otherwise. The fact that the petitioner was in fact holding the fitness certificate was in fact not denied. The only allegation is that he did not produce the same at the Police Station. Non-production of a certificate of insurance when demanded by the Police Officer is a distinct offence by itself under section 106 of the Act. Non-production of such fitness Certificate is by its not an offence. My attention was not invited to any section which provides that even though a registration mark is carried by the vehicle, the mark is to be ignored if the fitness certificate is not produced by the driver concerned. Normally speaking, no registration certificate under section 22 will be issued by the authority unless the fitness certificate is also produced. But there may arise a case where after the registration certificate is issued, the fitness certificate earlier issued by the authority expires before the expiry of the Registration Certificate. If the fitness certificate is not renewed immediately there shall be an interregnum when there is no valid fitness certificate carried by the vehicle although the period of registration certificate has not expired. It can be held without any difficulty that during this interregnum the date of the expiry of the period of fitness certificate and the expiry of the date of registration certificate, the registration gets invalidated if the fitness certificate is not renewed immediately. But the point is that, in the instant case, it cannot be said that the petitioner was not holding the fitness certificate. No doubt under section 86 of the Act is necessary for the driver to produce the fitness certificate before the Police Officer on demand. But even a superficial glance at the charge would show that contravention of section 86 of the Act in not as much as murmured. Not only that there is no reference to section 86 but even the statement of the facts contained in the Charge does not mention anything which will justify a reasonable inference that the petitioner was asked to produce the fitness certificate and that he did not produce the same. In this connection, again, it is to be noted that not holding a fitness certificate is one offence and non-production of the said fitness certificate, even though duly held, is a distinct offence. The first offence is contemplated by section 38 read with sections 22 and 112 of the Act. The other offence is the one contemplated by section 86 read with section 112 of the same. The set of facts contemplated by section 86 are distinct from the set of facts contemplated under sections 38 and 22 of the Act.

In these circumstances, it must be held that the averments made in the affidavit to the effect that the petitioner failed to produce the fitness certificate at the Police Station is nothing but an after thought. Even if we consider the probability of things, it is impossible that the petitioner would not produce the fitness certificate if he was having the same at his home. On the Officer's own showing, the petitioner was arrested as early as at 8.30 a.m. and was kept in the lock-up till 8.30 p.m. He was required to deposit a sum of Rs. 800/-. Naturally he was not having that much large amount in the early hours of the morning and he had to send the message to his house for the purpose of getting the said amount of Rs. 800/- If the fitness certificate was not held by the petitioner in his auto-rickshaw at 8.30 a.m, at least it would have been brought by him from his house in order to satisfy the officer that he did hold the certificate. The fact that the petitioner in fact holds such a certificate is no longer in dispute.

In this view of all these circumstances, I have no doubt that the charge under section 38 or under section 22 of the Act is an equally got-up charge.

The circumstances in which the charge which is the subject matter of Writ Petition No. 460 of 1983 was filed in the Court present even a more miserable picture. The charge in that case is for violation of section 25 read with section 112 of the Act and the brief statement of the charge purports to state that on the date in question the petitioner was driving the auto-rickshaw without tax. The exact words are as follows :

'The accused....................did drive his A/R MRT 8261 without tax...............'

It is doubtful whether it makes any meaning. But I am prepared to assume that the contention is to the effect that the requisite tax under the Motor Vehicles Act was not paid by the owner of the Vehicle at the relevant time, section 25 refers to temporary registration. Allegation therefore, is that the petitioner had not taken a temporary registration of the vehicle. It, however, beats understanding as to how a person could be charged for not having a valid registration of the vehicle and also, simultaneously, of not taking any temporary registration of the vehicle. I have already pointed out above that the petitioner was already having the registration of the vehicle. It cannot be held that the petitioner was having the fitness certificate. It therefore, means that the petitioner was having a permanent registration of the vehicle. It is just, therefore, a meaningless accusation that the petitioner has not taken a temporary registration. Once it is found that the charge relating to invalidity of registration under section 38 read with section 22 of the Act cannot be sustained and once it is found that the petitioner had been having a valid registration in respect of the vehicle, the allegation relating to want of temporary registration vanishes into thin air.

It will be, thus, seen that even this charge is wholly un-sustainable.

7. This brings me to the question as to whether the arrest of the petitioner by the police at the Police Station at 8.30. a.m. and his detention at the police station till 8.30.p.m. has any legal basis or jurisdiction.

7(a) Mr. Kothari, the learned public prosecutor placed heavy reliance upon the provisions of section 42 of the Criminal Procedure Code and section 128(2) of the Motor Vehicles Act. Section 42 of the Criminal Procedure Code empowers the Police Officer, in whose presence the non-cognizable offence is committed, to arrest the person concerned if the person does not give his name and residence to the officer or give such name and residence which the officer reasonably believes to be false. But he can make such an arrest only with a view to ascertain his real name and residence.

7(b) Now, in the first place this section could have no application to the facts of this case from its very inception. I asked the learned Public Prosecutor as to when the petitioner's arrest was effected; whether it was effected at the spot where the rickshaws were parked or whether it was effected at the Police Station. The learned Public Prosecutor was not sure about the answer. But after taking instructions from the officer he stated that the arrest was effected at the spot itself, because at the spot his name and address was enquired by the constable and the Police Officer, but the petitioner was not prepared to furnish the name and address. It would be very difficult to believe such statement because it is nobody's case that the petitioner was not having his licence with him and if three Police Officers ask such small fry of Rickshawalla his name and address, I do not think that such a rickshaw driver would have the temerity to refuse to give his name and address to them. There is no statement made anywhere that the petitioner sought to pass on a false name and address to the officer concerned. Moreover, it is on the face of it un-believable that the petitioner would not have been asked for his driving licence which clearly showed his name and address on the same. Significantly enough, no part of the police record shows that there was any such refusal on the part of the petitioner at the spot where the rickshaws were parked.

7(c) But this is not all. The falsehood of the statement made by the Police Officer becomes clear when one turns to his own affidavit. In para 7 of his affidavit, the officer has clearly stated that all the interrogation that was to be done by them was done not at the spot but at the police station. How, it is significant that in para 7 of the affidavit, the only, allegation made by the officer is that at the police station the petitioner did not produce :

(1) the permit required under Rule 103;

(2) The Insurance Certificate required under section 94;

(3) the Certificate of fitness required under section 38; and

(4) the temporary registration contemplated by section 25.

In para 4 of the affidavit, it is stated that the petitioner refused to show his driving licence to the constable concerned. It is further stated in the said para that the petitioner asked the police constable to note his registration number and to institute such proceedings against him as he desired. For reason which will be presently mentioned, I find such a statement to be on the face of it very much incredible. But assuming that on the spot the licence was not shown by the petitioner to the Police Constable, fact remains that it was shown at the Police Station. This fact was not even disputed. It follows that the petitioner was having a licence with him and at least at the police station the police must have seen the petitioner's licence. On the licence there was the petitioner's name and address. It is nowhere contended by the officer that he suspected the name and address written on the licence to the false. If this is so, the provision of section 42 do not come into play at all.

7(d) The position arising out of 128(2) of the Motor Vehicles Act is not much different. Sub-section (2) of section 128 is relevant for this purpose. The section provides that a police officer in uniform may arrest any person without warrant if such person required under the provisions of the Act to give his name and address refuses to do so or gives the name and address which the police officer has reason to believe to be false. In the instant case, the Officer has not at all stated that the name and address. In the instant case, the Officer has not at all stated that the name and address on the licence was in any way false. If, therefore the officer got the name of the driver from the licence, section 128(2) will not be attracted at all.

7(e) Section 128(2)(b) of the Act provides that such officer can arrest such person without warrant also if the person reasonably suspects that the person will abscond or will avoid service of summons.

7(f) Much reliance was sought to be placed upon this provision by the learned Public prosecutor. But in the affidavit filed by the Officer, I do not find any statement having been made by him that he had any such suspicion at all. In para 8 of the affidavit, the officer has no doubt stated as follows:

'It is experienced that only 8 per cent summonses are served as there is usually the tendency to avoid service of summons even possibly by affluent class of persons specifically in traffic violation cases.' It is further stated in the affidavit as follows :

'The rickshaw driver concerned was from Thane region and he had already shown his reluctance to co-operate with the process of law. In view of the provisions of section 128(2)(b) of the Motor Vehicles Act, he was, therefore, charged for contravention of relevant sectons.' Now charging the petitioner for relevant sections has nothing to do with the provisions of section 128(2)(b) of the Act. Under section 128(2)(b) of the Act, the Police Officer must have a reasonable ground for suspicion that the person such as the petitioner would abscond or would avoid service of summons. The fact that 92% avoid service of summons does not means that in every case the officer has to make arrest. If that was the position, then the qualifying clause employed by section 128(2) of the Act while giving power to the Police Officer for making arrest would not have been employed at all. Evidently, the police officer has retrained from making a statement that he suspected the petitioner to be a likely absconder or to be one who would avoid the service of summons because if he had made such a statement, he would have to indicate the reason why he had made such a statement. It is, therefore, clear that the arrest of the petitioner effected by the police does not have any legal or factual basis.

7(g) But the very fact that all the charges sought to be levelled against the petitioner are nothing but a bunch of trumped-up accusations itself is a very strong circumstance indicative of the fact that the petitioner's arrest was also very objectionable and that it did not stem from any bona fide motive rooted in good faith at all. There is every reason to believe that for some reason or the other the Police Officers were keen upon teaching the petitioner a lesson. At least the material brought before this Court does not in the least justify the inference that the petitioner's arrest on the relevant date at the relevant time and for the relevant period was founded in any justifiable cause.

8. Coming to the question as to the validity of the order passed by the learned Magistrate forfeiting the amount of bail furnished by the petitioner, I am of the opinion that in the facts and circumstances of the order, the order cannot be sustained. The petitioner was required to remain present in the Court to face the charges which were just trumped-up charges and which clearly smack of mala fides. If the charges were bad and malicious, then it was possible to argue that the petitioner would be justified in not attending the Court at all to face such malicious and untenable charges. But I need not go to that extent in this case. In the instant case, there is every reason to believe that the petitioner's statement in the petition that he was called at the Police Station on the next day morning and on that date he was asked to go to the Court and that the delay was caused on this account, is more believable then the statement made by the Police Officer who has filed affidavit in this Court. In this connection, it is very significant to note that when the learned Magistrate found the petitioner to be absent, all that he did was to forfeit the amount deposited at the Police Station. The order passed in each case in as follows :

'Accused absent. Bail deposit forfeited.'

There is no order issued by the learned Magistrate directing either a bailable or non-bailable warrant to issue against the petitioner. But what is even more significant and of a tell-tale character is that this Police Officer who has been making such tall claims in his affidavit did not move his little finger in the Court to take order from the Court to issue bailable or non-bailable warrant for securing his presence to answer the charges, trumped-up as they are found to be. When I made enquires at the bar as to what happened to those cases, the learned Public Prosecutor stated somewhat apologetically, after taking instructions from the officer, that the cases had been consigned to the dormant's file. I, for one, find it just next to impossible to believe such a statement or to understand such position. If the accused is required to give bail for the purpose of securing his attendance at the Police Station and if he does not remain present in the Court and if on that account his bail deposit is forfeited, the first and the elementary thing that one would expect the learned Magistrate to order would be the warrant for his arrest and production before the Court. The next thing one would expect would be for the police to insist for such an order from the Court. In this case, as many as four charges are levelled against the petitioner and still once his deposit was forfeited, the Police Officer has remained content with such an order has not found it necessary to follow up the charges levelled against the petitioner. All these circumstances are clear pointer to the act that the police were not at all confident about any legitimate footing for the charges levelled against the petitioner and that the officer concerned was very much aware of this position. All this means that this entire episode speaks of high-handed mala fides by the Police Officer concerned.

8(a) To my mind, there is much more in this case than what meets the eye and I have practically no doubt that the mala fide is something which is writ large upon the entire conduct of the Police Officer. I do not, in the least wish to suggest that the police or the citizenry cannot or may not have any legitimate complaints against the community of the rickshaw drivers. But if there does appear or exit some grievance against these people, the remedy is not for the Police Officer to take the law into his own hands and to frame got up charges against one small fry of an autorickshaw driver.

8(b) In normal circumstances, I would have been persuaded even to direct either the lower Court or the Registrar of this Court to institute appropriate proceedings against the officers concerned on account of the most objectionable conduct displayed by them in this entire episode, not excluding one of filing an affidavit which, in effect tries to take the Court for a joy-ride. But the machinery of this court's office is cracking under the burden of its already accumulated work-load and I do not wish to add any further straw on the camel's hapless back. However, if the petitioner is desirous and if he is so advised, to institute appropriate proceedings against the police officers concerned, he will be certainly at liberty to do so and if such proceeding is instituted, the appropriate Court will deal with the same on its own merits by reading and examining the evidence not only on the printed lines but also in between the lines.

9. The rule issued in all the petitions is, therefore, made absolute. The order passed by the learned Magistrate forfeiting the bail amount deposited by the petitioner in all the four cases is hereby quashed and set aside and the lower Court is directed to refund the said amount to the petitioner forthwith.


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