A.N. Surti, J.
1. A question of considerable importance is raised by Mr. D.K. Shah, the learned Counsel for the petitioner by urging, that any member of the State Police functioning either under the Bombay Police Act, 1951 or under the Code of Criminal Procedure, 1973 or under any other law for the time being in force has no authority of law to deprive any citizen of his actual possession of the residential premises in the name and garb of 'Bona fide Police Investigation', when two rival claimants approach the police, and make complaints that each of the two rival claimants is entitled to possess the actual physical possession of the residential premises. In substance, the debated point at the bar is, that if under the circumstances, the State police adopts a partisan attitude under the colour of its office and authority, and takes steps in favour of one of the claimants to the prejudice and detriment of the other, the only inevitable inference is that the State Police acts with requisite malafiden, and thereby, exceeds beyond the statutory circumscribed limits of law, and consequently compels the actual possessor of the residential premises to submit, not to rule of law but to the rule of ancient primitive ages, which is thoroughly alien to the present set up of a civilised democratic society.
2. In order to appreciate the point raised by Mr. Shah, a few relevant facts may be stated.
3. The petitioner has filed the present petition under Article 226 read with Article 31 of the Constitution of India, and in substance, prayed that the respondents viz. the Additional Commissioner of Police, the Inspector of Police and others should be directed to remove the seals affixed on the petitioner's residential premises forthwith, and to quit from the possession of the petitioner's premises. The petitioner also prayed for a direction, that the respondents should not disturb the petitioner's possession of the premises in question except under an order of any competent Court. The petitioner also prayed for certain interim reliefs as set out in paragraph 12(iii) and (iv) of the petition.
4. By way of an amendment, the petitioner also prayed, that respondents Nos. 1 to 3 i.e. the State of Gujarat and the police officers should be directed to restore him the goods, articles and documents removed by them from the premises of the petitioner, and to further direct them to place the same in the premises from where they were removed. He also prayed for a declaration, that the police action of taking possession of the premises and sealing the same was illegal and without authority. He also prayed, that the Executive Magistrate should be directed not to proceed with the proceedings taken by the police under Section 145 of the Code of Criminal Procedure. The petitioner also prayed for a direction, that the respondents should be directed to restore him the possession of the premises as they were on 8-00 P.M. on 19-6-1978.
5. The material averments for the disposal of the present petition are as follows:
It was the case of (he petitioner, that at the relevant time, he was occupying two rooms owned by Smt. Indirnati Ambubhai Ravani -respondent No. 5 herein and situated at 2, Ellora Park Society, Near Naranpura Char Rasta, Ahmedabad-13. It is also averred in the petition, that at the relevant time, the petitioner was also occupying the Government Quarters allotted to him at Gandhinagar. He states in his petition, that he was occupying the aforesaid premises at Ahmedabad on a monthly rent at Rs. 100/-, and that he was regularly paying the rent to respondent No. 5. He also states in his petition, that he had to pay the consolidated tax an eduation cess payable to the Municipal Corporation, and that he was paying the same.
6. The gravaman of the petitioner's accusation is, that on June 19, 1978 at about 8-30 P.M. when he was at his place, some police officers including Shri Jaspalsingh, Additional Commissioner of Police, Ahmedabad and Shri Desai, respondents Nos. 2 and 3 respectively cams to his premises, and they informed the petitioner, that there was a complaint against him in connection with the possession of the premises at Ahmedabad, and the petitioner was, therefore, taken under arrest. It is alleged, that when the petitioner was taken under arrest, the Police Officers had threatened the petitioner, and that they had acted in a high handed manner. It is also alleged, that the Police Officers, searched the premises of the petitioner without having first obtained any search warrant or any order from any competent authority and removed from his premises several articles and papers which included rent receipts given to the petitioner by the landlord from time to time, electricity bills, and receipts of taxes paid by the petitions. It is the grievance of the petitioner, that the police took the aforesaid papers without the preparation of a proper panchnami and without giving a proper receipt in this behalf to the petitioner. The petitioner further alleged, that thereafter, the petitioner was taken to Niranpura Police Station on being arrested, and that he did mike the necessary grievance before Shri Jaspalsingh, the Additional Commissioner of Police respondent No. 2 in this behalf, but to no useful purpose. It is alleged, that the receipt for attaching and removing the articles, papers etc. was not given by Inspector Shri Desai - respondent No. 3 herein, but, the same was given to the petitioner by the police on a subsequent occasion.
7. It is further alleged, that at about 10-00 P.M. on the night in question, the petitioner along with two others were taken to the Naranpura Police Station, and in the meanwhile, they petitioner moved this Court for releasing the petitioner on bail through his advocate; and this Court, on such an application, directed that the petitioner and two others be released on bail, unless they were arrested in connection with the offence of murder punishable under Section 302 of the Indian Penal Code. Accordingly, the petitioner and two others were released on bail during the night hours of the night in question at 11-30 P.M. or 12 mid-night. It is the grievance of the petitioner, that when he was so released on bail, and when he went to the premises in question, he found that his premises were sealed by the police. He also made a grievance that the police had posted some police constables near his premises.
8. The petitioner also alleged, that he had a right to occupy the premises in question, and that the action of the police in sealing his premises, taking possession of the articles and papers lying therein, and the removal thereof was illegal, unauthorised and mala fide. It is also averred, that thereafter, he sent a telegram to the Police Commissioner, Ahmedabad, registering his protest against the action of the police. In this behalf, in substance, his grievance is, that the police has no authority of law to act in the aforesaid manner.
9. As indicated above, the petitioner was subsequently allowed to amend the petition. By the amended petition, it is alleged, that respondent No. 2 who is the Additional Commissioner of Police and who had nothing to do with the investigation of the case, also took interest in the investigation of the case. In substance, it is alleged against respondent No. 2 that he was not at all justified in taking extra active interest with the sole purpose of aiding and assisting the rival claimant Mr. Anilkumar Tandon who is respondent No. 4 herein. It is alleged, that Respondent Nos. 2 and 4 are both Punjabis, and that by reason of their mutual association, respondent No 2 acted beyond the scope of his normal duties and acted in a high handed manner with the sole purpose of helping respondent No. 4. It is also alleged, that even after the present petition was filed, the Police had asked Shri Tandon to file a civil suit as can be noticed from the plaint filed by Shri Tandon in the City Civil Court, Ahmedabad. It is also alleged, that the Panchnama with regard to the removal of the petitioner's goods is a got up document, and that the police fabricated the same with a view to resort to proceedings under to Section 145 of the Code of Criminal Procedure, 1973. It is also alleged, that in presence of the petitioner, no panchnama was ever made for the removal of the goods. It is also alleged, that the police removed all the petitioner's goods from the premises in question, only with a view to handover the vacant possession of the premises to the rival claimant respondent No. 4, and to create evidence in his favour. It is also alleged, that all the aforesaid acts ware done under the supervision of respondent No. 2. It is also alleged, that respondent No. 2 tried to find ways and means to avoid compliance with the aforesaid bail order passed by this Hon'ble High Court. Serious allegations were made against the Additional Commissioner of Police, inasmuch as, on the night in question, the additional Commissioner of Police even threatened advocate Shri A.P. Ravani to the effect, that he would get him debarred from practice.
10. In substance, the allegations which are made against respondent No. 2, the Additional Commissioner of Police are: (1) That the officer of his rank and status should not have taken keen interest as alleged above, and he should not have personally visited on the night in question the premises. (2) That he should not have gone to (he premises with the fleet of police and should not have posted them at the premises in question. (3) That there was undue haste in detaining the petitioner as stated above on the night in question. (4) That the police were not justified in taking the possession of the premises belonging to the petitioner and by sealing the same. (5) That the police should not have initiated any proceedings against the petitioner and others under Section 145 of the Code of Criminal Procedure, 1973.
11. Shortly stated, on the aforesaid averments and allegations set out in the petition, the petitioner prayed for the aforesaid reliefs. He, in substance, wanted a direction from this Court, that the police should remove the seals and return the goods which were removed by the police, should see that the petitioner is given the possession of the premises in question; and that the articles, papers etc. as which were removed by the police should be put in premises in the same condition in which they were lying at the time of their seizure, attachment and removal.
12. The petition is hotly contested by the Police Officers who are respondents Nos. 2 and 3, the Additional Commissioner of Police and Police Inspector respectively. The State of Gujarat is also made a party to the petition, and Shri G.N. Desai the learned Public Prosecutor and Shri A.J. Patel, the learned Additional Public Prosecutor represented the case of the State of Gujarat and respondents Nos. 2 and 3. The rival claimant Mr. Tandon is respondent No. 4, and he is represented by the learned Advocate Shri H.K. Thakore, Shri H.M. Mehta, the learned Advocate appeared on behalf of the landlady respondent No. 5 herein.
13. The petition was strenuously resisted on behalf of the State of Gujarat, and respondents Nos. 2 and 3. At this stage, I may briefly indicate the stand taken up by the State and the concerned Police Officers.
14. It was urged on behalf of the State and the Police Officers, that on the day in question, the petitioner as well as Mr. Tandon had made two different and distinct complaints before the police authorities. It was also urged on their behalf, that both the rival claimants had come out with their respective cases in two different complaints filed on the day in question. In substance, on one hand, the petitioner claimed, that he was in actual physical possession of the premises in question with his goods lying therein, whereas on the other hand, respondent No. 4 also stated before the police, that he was in actual physical possession of the premises in question, and that he was forcibly dispossessed by the petitioner and others. It may be noted at this stage, that in course of the hearing of the petition before me, Mr. Desai, the learned Public Prosecutor also showed to me the complaints of the rival claimant respondent No. 4 and also of the petitioner. The learned Public Prosecutor read out before me the complaint of respondent No. 4 wherein it is alleged inter alia that there was the possibility of the murder of respondent No. 4, and that a couple of days prior to the riling of the complaint of respondent No. 4, Shri A.P. Ravani, Advocate had inducted someone as a tenant in the premises in question. It is also alleged in respondent No. 4's complaint, that Mr. Ravani had called upon about 10 parson to remain present with arms in their hands, so that respondent No. 4 could not get the possession of the premises in question. Suffice it to state for the disposal of the present petition, that it was urged on behalf of the Police Officers, that when the police reached the premises in question, the petitioner as well as respondent No. 4, each was insisting and claiming possession of the premises in question. Mr. Desai urged that there were serious apprehensions and accusations from both the sides of trespass, theft and even the possibility of a murder. Under the circumstances, it was urged on behalf of the State, that the Police Officers, with a view to prevent the breach of peace did take the necessary suitable preventive action, and that they were justified in their aforesaid action having regard to Section 149 of the Code of Criminal Procedure, and Section 64 of the Bombay Police Act, 1951. It was also urged, that by the said provisions contained in the Code of Criminal Procedure, 1973 and the Bombay Police Act 1951, the police has the powers to seal the premises in question under the circumstances aforesaid. By way of an alternative submission, it was urged by Mr. Desai, that under the circumstances aforesaid, the police acted in a bona fide manner, and it would be wrong to say, that they were actuated with mala fides when they sealed the premises in question, or when they removed the articles from the premises in question. It was also forcibly urged by Mr. Desai, that if the police officers had any malice or mala fides, they would have handed over the possession of the premises to respondent No. 4 the rival claimant. In substance, Mr. Desai's submission was, that under the circumstances aforesaid, if the Court comes to the conclusion, that the police could not have sealed the premises as they were violating the provisions of law, even then, it cannot be said that they acted with mala fides or with malice or that they acted with any partisan attitude to help respondent No. 4 as alleged. Under the circumstances, Mr. Desai urged that the Police Officers should not be stigmatised in any manner whatsoever, and at best, it can only be said that they acted erroneously, but with the best of motives.
15. I may also indicate the stand taken up by Shri Thakore, the learned advocate for the rival claimant. Mr. Thakore urged, that Mr. Tandon was a lawful tenant or the occupier of the premises in question. In this behalf, he invited may attention to certain documents which are on the record of the case.
16. On behalf of the landlady, Mr. Mehta urged before me, that in the instant case, the petitioner was the tenant of the landlady, and that he is entitled to possess the suit premises.
17. I have briefly indicated hereinabove the rival contentions which were urged before me at the bar.
18. I may state, that in the instant case, a proceeding under Section 145 of the Code of Criminal Procedure is very much pending today before the learned Executive Magistrate, and he is bound to decide as to who is entitled to the actual possession of the premises in question very soon. I am also told by all the advocates, that the rival claimant has already filed a suit in the City Civil Court Ahmedabad, for getting the necessary relief as to the possession of the premises in question. It may also be stated, that the present petitioner has also filed a civil suit to establish his rights in regard to the possession of the premises in question. In view of these facts, I cannot decide, and it is not the function of this Court to decide as to who should be awarded the possession of the suit premises. It will be for the learned Executive Magistrate or for the Civil Courts to take into consideration the rival claims of parties in regard to the possession of the premises in question, and hence, the present petition in so far as the prayer as to the possession of the premises is concerned is hereby dismissed.
19. But as indicated above, I must consider and should seriously worry about the point raised by Mr. D.K. Shah the learned Counsel for the petitioner. Can any member of the State Police functioning either under the Bombay Police Act, 1951 or under the Code of Criminal Procedure, 1973, or under any other law for the time being in force deprive any citizen of his actual possession of the residential premises in the name and garb of Bona fide Police Investigation'? Having anxiously taken into consideration the provisions of Section 64 of the Bombay Police Act, 1951 and Section 149 of the Code of Criminal Procedure, 1973, I am convinced, that any member of the State Police has no authority of law to seal any citizen's premises and to remove the goods lying therein when two rival claims are made before the police for getting the actual possession of the premises. If any member of the State Police acts in such a manner, he would be obviously exceeding the authority of law and the circumscribed statutory limitations, and that is something which is contrary to the elementary concept of rule of law and entirely alien to the present set up of a civilised democratic society. If the State Police who are the effective sentinels of our life and liberty compel our citizens to submit, not to rule of law, but, to the rule of might, the dignity of the rule of law is bound to be endangered. It may be significantly noted, that not a single decided case nor any authority was cited by the learned Public Prosecutor to satisfy my conscience, that a Police Officer without any order from a competent authority can seal the premises, can remove the goods lying therein, or can arrest the residents under such or similar circumstances. If such police acts are permitted to be done during the dark hours of a night with the closure of judicial eyes, there is no charm in our getting the liberty.
20. Having thus expressed myself on a broad proposition of law, I put a question for my consideration as to whether, in the instant case, the police acted in a mala fide manner or not. As stated above, it was strongly urged by Mr. D.K. Shah, the learned advocate for the petitioner, that in the instant case, I should take into consideration a series of acts done by the police on the night in question. He, in substance, urged, that what was the necessity for several Police Officers to rush up to the spot in question? What was the necessity for the State Police to seize articles lying in the premises without the necessary panchnama or without having first obtained any search warrant from the competent authority? He also urged, that what was the necessity, that on the very night in question, respectable people including an advocate and others were bodily removed to the police station? And what was the necessity for detaining them at the police station? He also urged, that what was the necessity for the police to insist for the identification of the Judge's handwriting at the police station? What was the necessity for the police to seal the premises during the dark hours of a dark night, as in the submissions of Mr. Shah, heavens were not to fall on the State of Gujarat. Suffice it to state, that Mr. Shah urged that this is a clear case of Police Officers having acted beyond their statutory functions with ulterior motives. He also urged that this Court should disapprove the aforesaid police action in the strongest possible terms, so that such an unhealthy action on the part of the police may not be repeated on any future day in the State by the police.
21. On the other hand, as stated above, Mr. Desai, the learned Public Prosecutor strongly urged before me, that on the day in question, the police had received two different and distinct complaints from two rival claimants, one from the petitioner and the other from respondent No. 4. Mr. Desai also urged, that according to respondent No. 4, he was the lawful occupant and tenant of the premises in question. Mr. Desai also urged that, if I take into consideration all the circumstances of the case, 1 should come to the conclusion, that in the instant case, the Police Officers acted in a bona fide manner to prevent the breach of peace. He also urged, that after all, respondent No. 3 was the Police Inspector, and he had to carry out the orders given by his Superior Officers, and in the discharge of his duties, if he had exceeded his authority, and if there was any error in his judgment, the police cannot be stigmatised that they acted with malice or with mala fide or that they had adopted any partisan attitude to favour the rival claimant.
22. In a case of this nature, and in the context of facts and circumstances of the case, as stated above, I am convinced that the police did not act with any malice or mala fides as alleged by the petitioner; but I must frankly say that the discretion exercised by the Police Officer on the night in question for their several acts was grossly improper and unjust. They should have realised the torture of a person who was dispossessed on the night in question. No doubt, it is true, that the police had two different and distinct complaints from the rival claimants asserting their individual rights to possess the premises in question, but that does not mean, that by any stretch of iniagination, the action of the police in sealing the premises is justified in any manner whatsoever. Law does not confer powers on the police to seal the premises or to remove the goods from the premises without having first obtained the orders from any competent authority, but, having regard to the facts and circumstances of the case, and the allegation of respondent No. 4 before the police that he would be murdered, I cart only corrie to a conclusion that they seriously bona fide erred in the exercise of their discretion in sealing the premises, if rerriovring the goods, and in arresting this petitioner and others during the dark hours of the night in question. I wish to mike it absolutely clear and must express in clear terms, that the State Police, will hereafter, shall be on special caution, that hereafter, on any future day, they do not seal the premises on such complaints and remove the goods in such a high-handed fashion, unless they are spastically ordered to do so by any competent authority.
23. That brings me to the consideration as to what reliefs I should grant to the petitioner. As the question of possession is yet to be decided by the Executive Magistrate and to Civil Courts, I do not think it necessary as to who should get the possession of the premises in question in the present petition; but I hereby direct the learned Executive Magistrate to dispose of the proceedings pending before him within a period of one month from today in accordance with law. As regards the sealing of the premises, I am told, that today, the seals are on the premises in pursuant to the orders passed by the Executive Magistrate, and hence, I need not give any direction regarding the removal of the seals affixed by the police. As regards the return of articles to the present petitioner. I hereby direct the Police Officers-respondents No. 2 and 3 - to see that they produce all the necessary articles before the Executive Magistrate who will make an accurate list of all the articles seized by the police, and will direct the police that all the articles are put in the premises in question, and thereafter, the premises may be sealed in pursuance to the learned Executive Magistrate's orders. The Police Officers can make a suitable application to the Court, if they want to produce any of the seized article before any Court, and lying in the premises in question. It is made absolutely clear that so far as the documents, receipts etc. are concerned, the Police Officer may retain the same with them, if they require for the investigation of any of the alleged offences against the: present petitioner or respondent No. 4. Incidentally, I also direct the Civil Courts to see that the two respective suits filed in the courts are disposed of as expeditiously as possible. In view of what has been stated above, the petition partly succeeds. Rub is made partly absolute; only to the extent indicated above so far as the return of gods is concerned, with no order as to costs. A copy of this judgment should be sent to the Home Department, Sachivalaya, Gandhinagar, and also to the Legal Department, Sachivalaya, Gandhinagar.