RASIKLAL S. GANDHI v. STATE — 1978 DIGILAW 134 (GUJ)

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 Bonafide 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 mala fides 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 petitioners residential premises forthwith and to quit from the possession of the petitioners premises. The petitioner also prayed for a direction that the respondents should not disturb the petitioners 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. 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 sec. 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 the petitioner that at the relevant time he was occupying two rooms owned by Smt. Indumati 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 and education cess payable to the Municipal Corporation and that he was paying the same. ( 6 ) THE gravaman of the petitioners 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 came 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. 2 and 3 respectively came 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 wa 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 aay search warrant or any order from aay competent authority and removed from his premises several articles and paper which included rent receipts given to the petitioner by the landlord from time to time electricity bills and receipts of taxes paid by the petitioner. It is the grievance of the petitioner that the police took the aforesaid papers without the preparation of a proper panchnama and without giving a proper receipt in this behalf to the petitioner. The petitioner further alleged that thereafter the petitioner was taken to Naranpura Police Station on being arrested and that he did make 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 buts 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 sec. 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 midnight. 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. 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 midnight. 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 petitioners goods is a got up document and that the police fabricated the same with a view to resort to proceedings under to sec. It is also alleged that the Panchnama with regard to the removal of the petitioners goods is a got up document and that the police fabricated the same with a view to resort to proceedings under to sec. 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 petitioners 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 were 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 Honble 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 be 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 the 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 sec. 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. (5) That the police should not have initiated any proceedings against the petitioner and others under sec. 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. 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 filing 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. 4s complaint that Mr. Ravani had called upon about 10 persons 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 stale 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 sec. 149 of the Code of Criminal Procedure and sec. 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 sec. 149 of the Code of Criminal Procedure and sec. 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. Desais submission was that under the circumstances aforesaid if the Court comes to the conclusion that the police could not have sealed the premises as were violating the provisions of law even then it cannot be said that they acted with mata 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. 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 here in above the rival contentions which were urged before me at the bar. ( 18 ) I may state that in the instant case a proceeding under sec. 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 its 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 case 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 B9na fide Police Investigation? Having anxiously taken into consideration the provisions of sec. 64 of the Bombay Police Act 1951 and sec. Having anxiously taken into consideration the provisions of sec. 64 of the Bombay Police Act 1951 and sec. 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 citizens 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 godos 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 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 aa 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 Judges 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 aa 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 I 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. Mr. Desai also urged that if I take into consideration all the circumstances of the case I 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 imagination the action of the police in sealing the premises is justified in any manner whatsoever. Law does tot 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 can only come to a conclusion that they seriously bona fide erred in the exercise of their discretion in sealing the premises in removing the goods and in arresting the petitioner and others during the dark hours of the night in question. I can only come to a conclusion that they seriously bona fide erred in the exercise of their discretion in sealing the premises in removing the goods and in arresting the 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 highhanded fashion unless they are specifically 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 Magistrates 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. 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. ( 24 ) IN view of what has been stated above the petition partly succeeds. Rule is made partly absolute only to the extent indicated above so far as the return of goods 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. Petition partly allowed. .