'Arrest Brings Humiliation, Casts Scars Forever': Bombay High Court Orders Maharashtra Govt To Pay ₹1 Lakh For Illegal Arrest

The Bombay High Court recently imposed a cost of Rs 1 lakh on the Maharashtra government for wrongly invoking offences against a Karnataka-based man and thereafter illegally arresting him and keeping him in custody for nearly 20 days.

A division bench of Justices Revati Mohite-Dere and Sandesh Patil noted that two officers - Pradeep Kerkar and Kapil Shirsath, Inspector and Police Sub-Inspector of the Bandra Police Station, had initially sought permission from their superiors to register an FIR against one Vasantha Nayak under sections 420 (cheating) , 406 (criminal breach of trust), 465 (forgery), 477A (fabrication of accounts) and 34 (common intention) of the Indian Penal Code (IPC). However, while registering the FIR, the officers invoked section 409 (criminal breach of trust by public servant) against Nayak, without informing the superiors.

The said officers, the judges noted, then sought permission from their superiors to arrest Nayak, without informing them (superiors) that no permission was sought to invoke section 409. The superiors, with no proper facts before them, permitted the arrest and therefore, the petitioner was arrested on October 23, 2024 and subsequently sent to police custody and was in prison for 20 days.

The judges held that Kerkar and Shirsath 'deliberately' in order to circumvent issuance of notice under the provisions of Section 41A of the CrPC invoked Section 409 in the present case.

"The facts in hand, smacks of police high handedness. The petitioner was thus arrested by Kerkar and Shirsath, by inserting Section 409, a non-bailable Section, which entails punishment upto life imprisonment, without there being any direction to register an FIR under Section 409. The file notings are eloquent with respect to the same. We find that there has been gross abuse of law, resulting in petitioner's arrest and his custody of 20 days in jail. We, as Constitutional Courts cannot be oblivious to the same. Arrest of an individual is a serious matter. Arrest brings humiliation, curtails freedom and casts scars forever. The Apex Court has time and again frowned on unnecessary arrests even in non-bailable offences," the bench said in the order passed on September 29.

The judges, therefore, ordered, "We direct the State Government to pay compensation of Rs. 1,00,000 to the petitioner within a period of six weeks from today. We direct the Commissioner of Police, Mumbai to appoint an officer not below the rank of Deputy Commissioner of Police to conduct a departmental enquiry with respect to the arrest of the petitioner by the concerned police officers. The enquiry to be completed within a period of eight weeks from the date of receipt of this order. The compensation so paid, shall be recovered after a full-fledged enquiry, from the salary of the person/persons found responsible for the petitioner's illegal arrest."

The complaint in the case pertained to a partnership firm set up by Nayak and his cousins, however, the petitioner retired from the said partnership by a deed of reconstitution. Yet the complainant lodged a complaint against Nayak and one more person. Based on the complaint, Kerkar and Shirsath sought permission to register an FIR against Nayak and the other individual under sections 420, 406, 465, 477A and 34, which was permitted but later the officers invoked section 409, which the petitioner contended was only done intentionally to arrest him.

The judges agreed with Nayak that both Kerkar and Shirsath intentionally for the reasons best known to them, wanted to get him arrested and therefore, invoked section 409.

"In view of the above, we hold and declare that the arrest of the Petitioner on October 23, 2024 by the respondents, was illegal and without lawful authority," the judgment authored by Justice Patil reads.

With these observations, the bench disposed of the plea.

Appearance:

Senior Advocate Abad Ponda along with Advocates Dhruti Chheda and Anukul Seth appeared for the Petitioner.

Additional Public Prosecutor Prajakta Shinde represented the State.

Advocates Faisal Shaikh, Shailendra Agharkar, Rashid Sayyed and Omkar Shah instructed by Rizwan Merchant and Associates appeared for the Complainant.

Case Title: Vasantha Perampally Nayak vs State of Maharashtra [Criminal Writ Petition (Stamp) 23953 of 2024]

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