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2006 DIGILAW 1071 (PAT)

Usha Mishra v. State Of Bihar

2006-11-15

NAVANITI PRASAD SINGH

body2006
Judgment 1. An intervention petition has been filed by the informant being I.A. No. 609 of 2006 even though on the face in the present proceedings she has absolutely no locus standi and her very present shows her acute animous. I say nothing more but allow the intervention petition. 2. The counsels have been heard both with regard to intervention and on the merits of the Writ application. 3. The State has filed a counter affidavit in support of its action. 4. Heard the parties and with the consent of the parties this writ application is being disposed of at the admission stage itself. 5. The petitioners grievance is not with regard to the correctness or otherwise of the prosecution nor is with regard to the correctness of otherwise of the investigation or the chargesheet but his grievance is i as against the investigating agency and in particular their actions who deliberately violated the law only for the purpose of harassing and humiliating the petitioner and her old husband in flagrant disregard to the procedure established by law. 6. The facts are that the intervenor, who is the informant alleges to be married to the son of the petitioner. Marriage was solemnized on 11.6.2004. It is alleged that the informant was thrown out of her matrimonial home on 16.5.2005. On 19.5.2005 the informant lodged the FIR giving rise to Madhubani Town RS. Case No. 156 of 2005, which was registered under Section 498/34 IPC read with Sections 3/4 of Dowry Prohibition Act. 7. The records were then forwarded to the learned C.J.M. and received by him on 20.6.2005. On 24.5.2005 i.e. within four days of the case being registered, the investigating officer filed an application before the learned C.J.M. praying for non bailable warrants to be issued against the accused persons who were the petitioner, her husband, who is a leading medical practitioner and her son, who is the husband of the informant saying that the son was preparing to go abroad and as such non bailable warrants be issued against all the three persons. The learned C.J.M. immediately passed order issuing non bailable warrants. Nowhere in the said application the police said or disclosed as to why they were unable to apprehend the accused persons on their own and why non bailable warrants were required from the court. The learned C.J.M. immediately passed order issuing non bailable warrants. Nowhere in the said application the police said or disclosed as to why they were unable to apprehend the accused persons on their own and why non bailable warrants were required from the court. I mention this because in course of investigation of a cognizable offence under the provisions of Cr.P.C. the police has authority to arrest a person without warrant and therefore when this normal procedure is to be departed from, police is expected to give cogent reason for seeking the indulgence of the court and the court does not mechanically grants such a prayer but must record reason and satisfaction for doing so. 8. The warrants having been immediately issued on 24.5.05 itself, the police then six days later filed an application before the learned C.J.M. i.e. on 30.5.2005 stating that the accused persons are absconding and as such the court should issue processes under Sections 82 and 83 Cr.P.C. Immediately, once again the learned C.J.M. by order dated 25.5.2005 obliges and directs issuance of processes under Section 82 Cr.P.C. without there being any application supported by affidavit and without first issuing proclamation giving time to appear. 9. It is not in dispute that on the 3rd of June, 2005 anticipatory bail application was filed on behalf of the petitioner and her husband before the learned District Judge, Madhubani. The learned Sessions Judge called for a report from the investigating officer for disposal of the said anticipatory bail application, as filed by the petitioner and her husband. On 9.6.2005 the investigating officer returned the processes issued as obtained under Section 82 Cr.P.C. to the court of C.J.M. stating that they were unable to apprehend the accused persons who were now removing their properties and as such it was not possible to arrest them and accordingly returned the warrants/proclamation received under Section 82 Cr.P.C. and prayed for attachment of property moveable and immoveable belonging to the accused persons. This application was not only forwarded but recommended by endorsement on the application itself by the then Superintendent of Police. This shows all the actions were taken by the investigating officer in consultation and with the approval of the then Superintendent of Police. 10. I may notice that this application was filed on 9.6.2005 though it is dated 8.6.2005. 11. Two things happened on 9.6.2005. This shows all the actions were taken by the investigating officer in consultation and with the approval of the then Superintendent of Police. 10. I may notice that this application was filed on 9.6.2005 though it is dated 8.6.2005. 11. Two things happened on 9.6.2005. In the proceedings in anticipatory bail before the learned Sessions Judge, the Investigating Officer filed an application stating that he was sick and could not give the progress of the investigation as such for the purpose of disposal of anticipatory bail application, but on the same day he moved an application before the learned C.J.M. for securing attachment order under Section 83 Cr.P.C. with the recommendation of Superintendent of Police. 12. Regretably the learned C.J.M. once again promptly issued order of attachment under Section 83 Cr.P.C. even though at that time the application for anticipatory bail of the petitioner and her husband was pending consideration before the learned Sessions Judge, pursuant thereto immediately on 10.6.2005 attachment orders were executed. Every little house hold articles including cooking articles, personal belongings etc. were indiscriminately seized even though to the knowledge of the Superintendent of Police and the investigating officer the petitioner and her husband were not absconding rather had submitted to the jurisdiction of the court by filing anticipatory bail application, which was pending. 13. It is in the perspective of these fact that it is submitted that the case having been registered on 19.5.2005, warrants were got issued from court on 24.5.2005, warrants returned and proclamation under Section 82 Cr.P.C. got issued on 2.6.2005, the same having been returned and attachment order under Section 83 Cr.P.C. obtained on 9.6.05 even though the I.O. reported sick on that day to the Sessions Court and attachment effected on 10.6.05 while application for anticipatory bail was pending clearly shows that the investigating officer had little regard of law and acted maliciously. This has been virtually accepted by the State in their counter affidavit filed on behalf of all respondents including Superintendent of Police where it is categorically stated that for this illegal highhanded action of the investigating officer disciplinary proceedings have been initiated against him. I only wish to record that if the department concerned found the action of the investigating officer to be illegal. I only wish to record that if the department concerned found the action of the investigating officer to be illegal. I do not think that the Superintendent of Police can escape the same liability because all actions of the investigating officer had blessing of the Superintendent of Police admittedly. The investigating officer alone cannot be proceeded against. 14. The law in this regard is well settled. The Apex Court in the case of CBI Vs. Dawood Ibrahim since reported in AIR 1997 SC 2494 para 23 has held that warrant of arrest u/s 73 Cr.P.C. normally is not to be issued by courts solely for production of accused before the police in aid of investigation for the simple reason that police even without warrant of arrest in a cognizable offence has right to arrest a person. It is for this reason I have noted above while making an application for issuance of warrant no ground was given, nor any special case was made out as to why the indulgence of court was sought for. It would thus be seen that the very act of the police/investigating officer seeking warrant of arrest had no sanction in law. 15. This court had the occasion to consider the actions of investigating officer in obtaining proclamation under Section 82 Cr.P.C. and either simultaneously or soon thereafter getting attachment order under Section 83 Cr.P.C. In the case of Nalini Kant Agrawal Vs. State of Bihar reported in 2003 (1) PLJR 350 it has been held that though the Court has power under Section 73 Cr.P.C. to issue warrant it is only for the purposes of securing appearance before the court and not before the police. The power to secure warrant or issue warrant of arrest under Section 73 Cr.P.C. cannot be used solely for production of accused before the police in aid of investigation. This Court further held that while issuing warrant u/s 73 Cr.P.C. the magistrate has to record a finding that the accused persons were evading their arrest which finding would depend on appreciation of facts pleaded in that regard and not on any ipse dixit of the investigating officer. If that is not done then Section 82 and/or Section 83 of the Code would not come into play and would be illegal exercise of jurisdiction. 16. Again this court in the case of Krishna Murari Yadav Vs. If that is not done then Section 82 and/or Section 83 of the Code would not come into play and would be illegal exercise of jurisdiction. 16. Again this court in the case of Krishna Murari Yadav Vs. State of Bihar since reported in 2005 (3) PLJR 746 after analyzing the previsions of the Code the Bihar Police Manual and the Civil Court Rules has clearly held that unaffidavited petition filed by I.O. in regard to seeking exercise of power by the Court under Sections 73, 82 and 83 should not be acted upon. The Court has to be persuaded each time with specific facts of case and as such process, proclamation and warrants cannot be asked merely for the sake of it without making out any special case for extra ordinary action. 17. This Court deprecated the manner in which the legal provisions are being abused and unmindful of the legal duties cast upon the subordinate courts are mechanically acting on mere asking by the investigating officer. The manner in which the entire action was taken clearly suggests that the action was not so much as to secure their presence for investigation but it was designed and purposely had taken only to harass and insult the accused persons. 18. The law is settled that even a person accused of crime cannot be treated except in accordance with law. The procedure of law is established which alone has to be followed. The procedure cannot be abused for some collecteral process. The end do not justify the mean. 19. 1 may mention one fact, the investigating officer reported ill before the Sessions Judge on 9.6.2005 when he was required to produce the investigating regard record for the purpose of disposal of anticipatory bail application. Two things are clear, first, he was aware of the application for anticipatory bail pending and therefore aware that petitioner and her husband could not be held to be absconders. They had themselves submitted to the jurisdiction of the Court and were pursuing their legal remedies. Secondly on the same day he moved an application before the learned C.J.M. for issuance of warrant of attachment under Section 83 Cr.P.C. and as such it can safely be presumed that he was not on sick and therefore his conduct is clearly malicious in fact. Secondly on the same day he moved an application before the learned C.J.M. for issuance of warrant of attachment under Section 83 Cr.P.C. and as such it can safely be presumed that he was not on sick and therefore his conduct is clearly malicious in fact. This application which he moved has been endorsed by the Superintendent of Police, who cannot escape from the liability in this regard. In the counter affidavit which was filed on behalf of the Superintendent of Police and the I.O. nowhere it is stated as to what made them believe that the petitioner or her husband was evading arrest or removing their properties. On the contrary they were aware that their anticipatory bail applications were pending which were ultimately allowed, but after all this humilation and harassment. 20. In sum and substance, I find that investigating officer failed to perform his lawful duty rather abused them with impunity and thus violated the rights of the petitioners. The law and legal procedure were violated with impunity with the sole purpose of causing under harassment to the petitioner and her husband. To my mind these facts are enough to hold that the State of Bihar whose officers act has been found to be illegal, responsible to compensate for humiliation meted out to the petitioner. 21. I may only note a judgment of the Apex Court in the case of Lucknow Development Authority Vs. M.K. Gupta since reported in AIR 1994 SC 787 wherein it has been held under noted : "... It was extended further even to bona fide action of the authorities if it was contrary to law in Lala Bishambar Nath Vs. Agra Nagar Mahapalika, Agra, AIR 1973 SC 1289 . It was held that were the authorities could not have taken any action against the dealer and their order was invalid, it is immaterial that the respondents had acted bona fide and in the interest of preservation of public health. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their actions. The theoretical concept that King can do no wrong has been abandoned in English itself and the State is now held responsible for tortuous act of its servants. .... In Wood Vs. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their actions. The theoretical concept that King can do no wrong has been abandoned in English itself and the State is now held responsible for tortuous act of its servants. .... In Wood Vs. Blair (The Times 2, 3, 5 July 1957) a dairy farmers manageress contracted typhoid fever and the local authority served notices forbidding him to sell milk, except under certain conditions. These notices were void, and the farmer was awarded damages on the ground that the notices were invalid and that the plaintiff was entitled to damages for misfeasance. This was done even though the finding was that the officers had acted from the best motives. ... But where the duty is performed capriciously of the exercise of power results on harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. ... But where it is found that exercise of diacretion was malafide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover." 22. Further in the case of Common Cause. A Registered Society Vs. Union of India & Ors. since reported in (1996) 6 SCC 530 in para 26 their Lordships have held thus : "... It is high time that the public servants should be held personally responsible under the Constitution for their mala fide acts in the discharge of their functions as public servants. This Court in Lucknow Development Authority Vs. M.K. Gupta, approved "Misfeasance in public officers" as a part of the Law of Tort. Public Servants may be liable in damages for malicious, deliberate or injurious wrongdoing. ... No public servant can say "you may set aside an order on the ground of malafide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary." 23. I thus award a compensation of Rs. 20,000/- to be paid by the State of Bihar to the petitioner within a period of one month from today. No public servant can arrogate to himself the power to act in a manner which is arbitrary." 23. I thus award a compensation of Rs. 20,000/- to be paid by the State of Bihar to the petitioner within a period of one month from today. It will be open to the State to realise the said amount from any person whom they think fit and responsible for such action in this regard. 24. In view of the aforesaid observation and direction this writ application is allowed.