RAJESH SURYABHAN NAYAK V. THE STATE OF MAHARASHTRA 2006 (5) Mh Lj 243

Case Name: Rajesh Suryabhan Nayak v. State of Maharashtra

Criminal Writ Petition No.: 428/2002

Court: Bombay High Court

Bench: Justice J Patel, Justice B Dharmadhikari

Date of Judgment:  7^th June 2006

Parties Involved:

Appellant:  Rajesh Suryabhan Nayak
Respondent: State of Maharashtra

Legal Provision Related to the Case: Section 111 of Code of Criminal Procedure, Section 116(3) of Code of Criminal Procedure, Article 21 of the Constitution of India.

Introduction:

Rajesh Suryabhan Nayak v. State of Maharashtra deals with the arbitrary use of discretionary power of the Police Force where the right of life and personal liberty of individuals provided under Article 21 was abridged. This case depicts the effective implication of Article 22(1) protecting individuals from unlawful arrest and detention and therefore upholding the spirit of liberty, equality, and fraternity envisaged under the Constitution of India.

Facts of the Case:

The petitioner, an Advocate, was hired by a person namely, Khobaib Raja to represent his case before the Special Executive Magistrate, Tahsil Division, city of Nagpur, in the proceedings initiated under Section 107 of the Code at the behest of Police Station Lakadganj.

While working on the case the petitioner has witnessed various illegalities and irregularities being practiced in the court of Special Executive Magistrate, who also happens to be the Assistant Commissioner of Police of Kotwali Division, and has been joined in person as Respondent No. 3 in this case.

The respondent has misbehaved, insulted, and humiliated the petitioner, who is an Advocate and was appearing for his client, by giving threats and using abusive words. The petitioner filed complaints to the Superior Officers of respondent No. 3 but no action in the matter was taken.

In addition to that Khobaib Raja, the person whom the petitioner was representing, was rebuked for engaging the petitioner and was threatened with detention in jail by the respondent through his Clerk Shri Karade, in the event of his failure to pay the sum of Rs. 2000/-as bribe.

Another Criminal Writ Petition No. 293 of 2003 was filed by the petitioners contending that they were called upon to execute a bond of Rs. 25000/-in proceedings initiated by Walgaon Police under Section 151of Code of Criminal Procedure, by insisting upon executing the bond for the sum of Rs. 25000/-with one cross-surety in the like amount belonging to a rival group, as interim order passed under Section 116(3) of the Code without following provisions of law.

The Bombay High Court in both matters has passed various interim orders including an inquiry into the allegations made by the petitioner and held that both the petitions shall be heard together and disposed of by common judgment and order as the nature of allegations made in the petitions are alike nature.

Issues raised before the Court:

Whether the respondent has the power to act in his discretion under Section 111 and Section 116(3) of the Code of Criminal Procedure.

Whether the Assistant Commissioner of Police and his staff have violated Articles 21 and 22 of the Constitution of India, as their act deprives the personal liberty of a citizen to be defended by a legal practitioner of his choice.

Arguments of the Petitioner:

The petitioner contended that under Sections 106 to 110 of Chapter VIII of the Code of Criminal Procedure, all these proceedings are of preventive nature and are not the punishment of a crime. The Special Executive Magistrate though having the authority to act in discretion under this Chapter cannot use his discretionary power arbitrarily and such power must be exercised judicially and strictly in accordance with the procedure laid down in the relevant sections.

The petitioner also pointed out by examining various files of the Executive Magistrate the learned Special Executive Magistrate had got a printed form incorporating both the orders leaving certain margins so as to fill in the blanks/gaps which only go to indicate that the two orders were passed in a rigid manner without application of mind.

The next important thing, in this case, was the amount of the bond. This should be fixed with due regard to the circumstances of the case, and must not be excessive. The Magistrate should consider the station in life of the person concerned, and should not go beyond a sum for which there is a fair probability of his being able to find security.

The petitioner further argued that, according to Section 107 of the Code, no person can be detained in judicial custody for their failure to furnish interim surety in proceedings, and the Executive Magistrate is not vested with such power in the exercise of his jurisdiction by the law.

The party against whom proceedings are initiated under Chapter VIII of the Code was entitled to forthwith receive a copy of the order, denial of which may result in curtailing their liberty before they were remanded to judicial custody, either for their failure to execute necessary bond with or without sureties or at the conclusion of the proceedings.

The petitioner stated that the respondent has violated the Fundamental Rights under Articles 21 and 22 of Part III of the Constitution which provides the right to life and personal liberty and the right of protection from arrest and detention are abridged by the respondent and the petitioner is entitled to the right to defend himself with the aid of counsel.

Arguments of the Respondent:

The Respondent/Government of Maharashtra, Home Department stated they would streamline the procedure and exercise of powers by the Executive Magistrate and special Executive Magistrate under Chapter VIII of the code. The respondent was, however, of the opinion that considering the present scenario and the law and order situation it may not be feasible to revert back to the 1980s position and entrust these powers to the judicial magistrate. The respondent had assured that in the future the proceedings under Chapter VIII of the Code would be conducted in proper order.

Respondent No. 2/The Commissioner of Police in his affidavit dated 22/3/2006 had also taken cognizance of the fact that the office of the Special Executive Magistrate and Executive Magistrate functioned till late hours in night and had noted that said officer would function in accordance with the guidelines issued by the Government of Maharashtra vide Circular dated 28/4/2003 and those instructions have been issued to all the ACPs vide Circular dated 20/3/2006 to conduct and hold their courts only during working hours and further to take prior permission from concerned Zonal Deputy Commissioner of Police, if there is any urgent case to be dealt with after working hours and in that case, subsequently send the report to the Commissioner of Police stating the reason of holding proceedings after office hours.

The respondent also contended that forthwith this practice of passing orders in printed form would be discontinue and further assured the court that certified copies of the order would be forthwith furnished to the person or his Advocate, who are appearing in his court and in future he will take all the necessary precautions to see that there is no violation of any right statutory or procedural of a citizen who is facing any proceedings in his court. 

Judgment:

The Bombay High Court held that the provisions in the Chapter VIII of the Code of Criminal Procedure, which empower courts and Magistrate to obtain security from a person to prevent him from committing offences in the future, are of two kinds. Firstly, security for keeping the peace, which is contemplated under Sections 106 and 107 of the Code and secondly security for good behaviour, which is specified in Sections 108 to 110 of the Code. Rests of the chapter contains procedure and provisions which is set out in Sections 111 and 112 of the Code. The common aspect of all these proceedings is that they are not obligatory but confer the discretionary power on the specified court or magistrate to exercise such power in the specified circumstance, judicially, and strictly in accordance with the procedure laid down in the relevant sections.

The Court further said that under Section 111 and other under Section 116(3) of the Code has to be passed by the learned Magistrate on due application of mind. An order under Section111 of the Code on the basis of substance of the information received by the magistrate has to be spelt out in the order, which requires that there must be information of a nature which convinces him that there is likelihood of a breach of peace.

The court has taken judicial notice of this that in spite of a clear cut provisions in Clause (a) of the proviso to Sub-section 3 of Section 116 of the Code, persons are detained in judicial custody for their failure to furnish interim surety in a proceedings initiated under Section 107 of Chapter VIII of the Code in exercise of jurisdiction not vested upon them in law.

If a person against whom proceedings are initiated under Section 107 of the Code is detained in judicial custody for failure on his part to furnish interim surety/security Bond or personal Bond pursuant to an order passed under Section 116(3) of the Code of Criminal Procedure, the State shall be liable to pay compensation to such person for violation of his fundamental right enshrined under Article 21 of the Constitution of India and the aggrieved person may also file a suit against the said magistrate for wrongful confinement and appropriate compensation for wrongful detention.

The Court also held that according to Article 22(1) if personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it doesn’t matter whether there is or is not a possibility of imprisonment. A person arrested and put on his defence against a criminal charge, which may result in penalty, is entitled to the right to defend himself with the aid of counsel and any law that takes away this right violates the Constitution. Advocate Mr. Nayak’s grievance as highlighted in his petition was that his client was discouraged and deprived from engaging legal practitioner of his choice from appearing before the court of Special Executive Magistrate, Kotwali Division was a clear cut breach of Article 22(1) of the Constitution of India.

The Bombay High Court in Criminal Writ Petition No. 428/2002 had ordered that the petitioner must be compensated by the respondent no. 3 for violation of fundamental right under Article 21 and 22 of the Constitution and in regard with the reliefs claimed in Criminal Writ Petition No. 293 of 2003 the Court of Chief Judicial Magistrate, Amravati under Section 123(2) and (3) of the Code of Criminal Procedure granted relief of reducing the quantum of bond from Rs. 25000/-to Rs. 15000/.

Conclusion:

This case of Rajesh Suryabhan Nayak v. State of Maharashtra is one of the finest examples of malpractice and arbitrary exercise of power and authority of the Government where the Bombay High Court has rightfully upheld the spirit of the Constitution.

Reference:

1. Rajesh S/O Suryabhan Nayak vs The State Of Maharashtra, Through … on 7 June, 2006, Indian Kanoon, https://indiankanoon.org/doc/404298/ last seen in 25/04/2023

This Article is written by Megha Malakar, Intern under Legal Vidhiya