Petition in Nagpur HC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BEFORE THE NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. / 2012
(In the matter of Articles 14, 19, 21, 226 and 227 of the Constitution of India 1950
In the matter of Sections 41, 41B, 50A, 55, 60A, 267, 299 and 482 of the Code of Criminal Procedure
In the matter of abduction of the Petitioner from prison premises by police personnel
In the matter of wilful postponement of initiation of proceedings for showing arrest of the Petitioner
In the matter of vexatious, oppressive and malafide prosecution leading to abuse of the process of the Court
In Re of Speedy Trial)
PETITIONER : Arun Thomas Ferreira
Age 38 years, R/o 17-A St. Martins
Road, First Floor, Flat No. 7, Bandra,
Mumbai 400 050, presently lodged in
Judicial Custody, since over 4 ½
Years, At Nagpur Central Prison, Nagpur 440 020
RESPONDENTS 1. State of Maharashtra
Through Home Secretary,
Mantralaya, Mumbai 400 032
2. Superintendent of Police,
Gadchiroli District Police
3. Officer – in – charge
Purada P.S. Dist. Gadchiroli
4. Shri M.R. Tarone
Purada P.S. Dist. Gadchiroli
5. Shri M.C. Meshram
Purada P.S. Dist. Gadchiroli
6. Prison Superintendent
Nagpur Central Prison
Wardha Road, Nagpur 440020
7. Shri Yogesh Patil
Junior Class II
Nagpur Central Prison
Dhantoli P.S. Nagpur
9. Shri Rajput
Assistant Police Inspector
Dhantoli P.S. Nagpur
10. Shri Chavan
Police Sub Inspector
Dhantoli P.S. Nagpur
11. Shri Gabhne,
Police Sub Inspector
Dhantoli P.S. Nagpur
CRIMINAL WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTIONOF INDIA
THE HON”BLE CHIEF JUSTICE AND OTHER PUISNE JUDGES OF THIS HON”BLE COURT THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED.
MOST RESPESTFULLY SHEWETH:
1. The Petitioner is a citizen of India permanently resident at 17-A St. Martin Rd., Flat No. 7, Bandra (west) Mumbai 400 050. The Petitioner has been in continuous incarceration since over four and half years and is presently lodged as an unconvicted, undertrial prisoner at Nagpur Central Prison, Wardha Road, Nagpur 440020.
2. The Respondent No.1 is the authority exercising general control and superintendence over the police and prisons in the State of Maharashtra, Respondents No. 2 to 5 are the police officers who directed and implemented the abduction, re-arrest and prosecution/persecution of the Petitioner, the Respondent No.6 is the officer-in-charge of Nagpur Central Prison from where the Petitioner was abducted and Respondent No. 7 is the prison official who participated in the abduction and Respondents Nos. 8 to 11 are the Police officers who provided police protection for facilitating the abduction. The Respondents are State within the meaning of Part III Fundamental Rights of the Constitution of India and are amenable to the Writ jurisdiction of this Hon’ble Court.
3. The Petitioner is filing the present Petition to effectuate the Petitioner’s Fundamental Rights and Dignity (I) protecting him from criminal, arbitrary and mala fide action of the State and (II) guaranteeing him a fair, just and speedy trial (III) to remedy his unwarranted and oppressively long period of incarceration by the quashing of vexatious, mala fide and deliberately delayed proceedings against him (IV) to initiate proceedings against police and jail personnel for criminal acts committed; and for (V) apology and compensation for wilful violation of his Fundamental Rights and Dignity by the officers of the State
4. The Petitioner says and submits that the Respondent officers of the State, in direct violation of a wide range of constitutional guarantees, conspired and colluded and, on 27th September 2011, deployed a large number of yet unidentified police personnel to execute the abduction by criminal force of the Petitioner from prison premises and his wrongful and secret confinement, in the open transgression of lawful orders of release by competent courts.
5. The Petitioner says and submits that Respondents have wilfully abused the process of law and courts to falsely and deliberately declare the incarcerated Petitioner as absconder with conscious intent of keeping such cases in abeyance in order to arraign the Petitioner at a later stage.
6. The Petitioner says and submits that this wilful delay and postponement in applying further cases only after discharge or acquittal in earlier cases has been resorted to by the Respondents in order to deliberately prolong the Petitioners period of incarceration in blatant violation of his constitutional right to a speedy trial in wilful subversion of all canons of justice and in particular of the provisions of the Code Of Criminal Procedure, 1973 and the Constitution of India.
7. The Petitioner says and submits that the facts /acts of State /modus operandi of Respondents leading to the deliberate, conscious and wilful deprivation of, inter alia, the fundamental and legal rights and dignity of the petitioner are herein after more particularly stated;
- The Petitioner was arrested on 8 May, 2007, from Nagpur and first implicated in C.R. No. 149/07 of Dhantoli P.S., Nagpur and subsequently in six cases of Gondia district and one case of Chandrapur district. The details of crime number ,police station., sections charged, trial court and case number and status of each case are included in the statement annexed hereto and marked as EXHIBIT ‘A’. After the first period of police custody in the first case, the Petitioner was moved to the Nagpur Central Prison, Nagpur 440020 and was immediately classified as a naxalite under trial prisoner. He has throughout his period as under trial in the above referred cases been lodged in Nagpur Central Prison and whenever he has been implicated in further offences, he has been taken from jail on orders u/s 267 Cr PC issued by competent courts.
- On 7th April 2008, the Petitioner joined 12 other under trial prisoners of Nagpur Central Prison in a hunger strike that lasted 27 days which was launched to highlight various grievances and in particular to protest against the unlawful arrest from jail of prisoners ordered to be released by the courts, The hunger strike had been sparked off by the case of a fellow women tribal prisoner, Muthakka Gopi Naitham, who had , on release after almost four years in jail , been taken by police directly from the jail premises and implicated in a new case. The notices/application regarding such hunger strike, listing the grievances were sent also to this Hon’ble Court which converted the same into Criminal Writ Petition No. 454 of 2008, in which the present Petitioner was listed as one of the Petitioners at Serial No. 3 EXHIBIT ‘B’ is a the copy of the notice of hunger strike in English which was converted into Criminal Writ Petition No. 454 of 2008.An advocate was appointed by this Hon’ble Court on behalf of the Petitioners but due to lack of communication with him, a proper petition with appropriate pleading and prayers could not be prepared. The Criminal Writ Petition No. 454/2008 thus came to be disposed off on 15th January, 2009 with the observation that grievances are multifarious and manifold and with a direction to amicus curiae to “file proper petition after securing entire information which he deems relevant to have at his hand after he interviews the under trial prisoner Shri. Arun Thomas Ferreira, who is not so far released”, and stating that the petition is disposed of “without affecting any of the liberties available to the Petitioners to file fresh petition”. However again due to lack of communication between the amicus curiae and Arun Thomas Ferreira i.e. the present Petitioner, no new proper petition was filed. Hereto annexed and marked as EXHIBIT ‘C’ is copy of the said order of this Hon’ble Court dated 15th January, 2009 disposing of the Criminal Writ Petition No. 454/2008.
- The Respondent No. 8, on obtaining a report of the above- referred hunger strike, registered an offence of attempted suicide and arrested and charge sheeted the hunger –striking prisoners including the Petitioner. When this case came before the Hon’ble JMFC, Court No.2, Nagpur, she , finding that prima facie act did not constitute an offence under IPC, passed orders u/s 258 Cr PC stopping the proceedings and discharging all the accused ,including the Petitioner.
- Subsequently the Petitioner came to be acquitted after trial in each of the other eight cases against him. The trial in the last case was completed on 23 September, 2011 and the Hon’ble Extra Joint Adhoc Additional Sessions Judge at Chandrapur ordered that the Petitioner be released after executing bail bond u/s 437A Cr PC. The required bail bond were executed on the next court working day i.e. 26 September,2011, and the order of release of the Petitioner, which was duly obtained, was delivered on the same evening into the drop-box kept for the purpose at the Nagpur Central Prison.
- The Petitioner says and submits that, as per procedure established by law and due process he was bound to be released and regain his liberty on the morning of 27th September 2011, along with all other under trial prisoners whose court orders for release had been received in the jail in the late evening of 26th September 2011 or early morning of 27th SEPTEMBER 2011. However, the Respondents had been conspiring and colluding to somehow circumvent and frustrate the lawful orders of release of the competent trial courts and had accordingly, with brazen contempt for the rule of law, set in motion a plan of vile and criminal dimensions to forcibly abduct the Petitioner from the jail itself with the openly evident object of denying him his liberty or even his life with total disregard to any due process or procedure of law. The events of 27 September, 2011, in this regard are related as follows in some detail :-
e) (i)The Petitioner’s 72 year old mother , Y Ferreira, and brother , S Ferreira, came from Mumbai to Nagpur on the morning of 27-09-2011, to receive the Petitioner on his release and accompany him home, They contacted the advocates of the Petitioner and the said family member and advocates, after following the prescribed procedure for applications for jails visits, were permitted to meet the Petitioner at around 12:00 noon across the iron mesh partition of the prison mulaakaqat room. They told the Petitioner that the court’s release order had been submitted the previous evening to the Prison authorities and that they would be waiting at the inner Prison gate to receive him on his release.
e) (ii) Immediately afterwards the Petitioner was called to the office of the Prison Judicial Department along with a group of around 24 under trial prisoners who were scheduled for release at that time. After completing the procedural formalities for release , though all the other prisoners were released through the wicket door in the inner gate of the jail, the Respondent No.7 who was then in–charge of the release of under trial prisoners insisted that the Petitioner be released last of all. Just before the Petitioner was to step out of the gate, the Respondent no.7 signalled to someone waiting outside and then at or around 14:30 hours directed that the Petitioner be released
(e) (iii)As the Petitioner made to step through the wicket-door of the jail inner gate he was immediately held, pulled and dragged out by a group of unknown men in civilian clothing and, with hands clapped on his mouth and pushing down his head was bodily lifted and dumped into an unnumbered white coloured, Tata Sumo vehicle which had been backed up to just within a few feet from the said wicket door from the jail inner gate. As six of these unknown jumped into the said vehicle it was immediately driven off and out of the prison premises through the prison gate situated on the North Eastern Section of the prison on Wardha road which is normally used for entry by police vehicles into the prison. The act of forcible abduction of the Petitioner at the jail-gate was captured on photographs annexed herewith and collectively marked as EXHIBIT ‘D’. It was also witnessed by the press, whose reports and photographs appeared in newspapers, cuttings of which are annexed herewith and collectively marked as EXHIBIT ‘E’. The said act of abduction of the Petitioner by the said persons was also witnessed by the Petitioner’s mother Smt Y. Thomas Ferreira and Brother Shri Sanjiv Thomas Ferreira their Advocate and Advocate’s Associates who along with them had come to receive the Petitioner at the prison gate. Hereto annexed and marked as Exhibit E1 is a copy of the Affidavit sworn by the said mother of the Petitioner attesting the fact of abduction.
(e) (iv) The above act of abduction of the Petitioner by criminal force was performed within seconds in view of the Petitioner’s mother and brother and his advocates. As the advocates, namely Surendra Gadling, Anil Kale, S.P. Tekade, Vikrant Narnavre, Anil Koche and Anand Gajbhiye stepped forward to inquire as to what was going on and as to who were taking him away, they were pushed back and manhandled by a group of around 15 to 20 uniformed and un-uniformed police personnel acting under the directions of the Respondent Police Officers nos. 9, 10 and 11 and also the Respondent jail officer No. 7. They said Respondents Nos. 7, 9, 10, and 11 not only refused to respond to any queries regarding the identity of the abductors or pleadings regarding violations of Supreme Court directives but also aggressively threatened the advocates with arrest for obstructing the work of the State. Just prior to the above- described acts of abduction of the Petitioner, when the above mentioned advocates had inquired with the Respondent No. 9 who was present there in uniform. as to the reason for all the police bandobast on the Prison premises, he said that this had been provided at the behest of the Respondent No.7. However when further inquires were made with the Respondent No.7, he while not answering the queries, threatened action on the advocates for entry on prison premises and even directed some un-uniformed police personnel present there to push the advocates back beyond a second jail gate situated at a distance of over 50 metres away from the wicket-door through which the Petitioner was scheduled to be released. The said Respondents were thus operating in active collusion with the unknown abductors and were engaged in ensuring the provision of all conditions to facilitate smooth and secret abduction of the Petitioner.
e (v) The above named advocates made a written complaint addressed to the Respondent No. 8, detailing all the events at the prison gate and submitted it at 15.30 hours to PSI Dinesh Zambre, the then Duty Officer at the Dhantoli Police Station, within whose local area the Nagpur Central Prison is situated. Since the said Duty officer did not acknowledge receipt of the said complaint, a copy was sent by Speed Post, posted from the Nagpur General Post Office at 19.07 hours and copies of the same were simultaneously speed-posted to the Police Commissioner, Nagpur, the Hon’ble Administrative Judge of the Nagpur Bench of the Bombay High Court, the Chairperson, Maharashtra State Human Rights Commission, Mumbai and the Superintendent, Nagpur Central Prison i.e. Respondent No. 6. Copy of the said written complaint in Marathi and English translation thereof are annexed herewith and collectively marked as EXHIBIT ‘F’
e (vi) The Petitioner was meantime confined and conveyed in the un-numbered, white, Tata Sumo vehicle without allowing him at any time during the journey to even alight for attending nature’s call. The seven abductors seated in the vehicle including driver, were all dressed in civilian clothes, but bore firearms such as rifles and pistols. When the Petitioner inquired with them they refused to disclose their identity, the purpose of his abduction and the destination which they intended to take him to, causing him severe mental turmoil and harm, fearing for his life. The Petitioner also pleaded with his abductors to ease the worry of his family members waiting at the jail gate by informing them or his advocates about his whereabouts and requested his abductors to take mobile phone numbers of his family members and advocates for the purpose of contacting them. His abductors all had mobile phones themselves, which were in operation throughout the journey, but they refused to even take the said mobile numbers to inform either family members or advocates of his whereabouts. They even refused to identify themselves as police personnel and quite evidently intended to maintain complete secrecy regarding the abduction and confinement of the Petitioner. The team of abductors were receiving repeated communications over their mobile phones and accordingly seemed to be changing direction and route. Finally after a journey of between two to three hours the Petitioner was taken to the Desaiganj Police Station of Gadchiroli District.
e (vii) At the Desaiganj Police Station it became apparent that the unknown abductors were well acquainted with the police station staff and were most probably police personnel themselves. From conversations conducted there in the presence of the Petitioner, they seemed to be members of a ‘C-60’ police commando team, taking orders from the Gadchiroli District Police Head quarters i.e. the headquarters of the respondent No. 2. They however continued to refuse to identify themselves and this refusal continued even after the arrival at the police station of the Respondent No.4 who was well acquainted and who took over the custody of the Petition from the unknown abductors.
e (viii)It was only at or around 17:30 hours that the Petitioner was informed that he was being arrested in C. R. No.14 of 2007 of Purada Police Station. The Petitioner was however not shifted to the said P.S. but continued to be detained at the Desaiganj P.S. The unknown abductors however departed without still identifying themselves and their identity remains unknown to the Petitioner to this day.
- On 28 September, 2011 at around 16:30 hrs, the Petitioner was produced before the Hon’ble Judicial Magistrate First Class at Desaiganj, Shri. G K. Nandanwar, holding temporary charge instead of the Hon’ble JMFC at Kurkheda under whose jurisdiction the Purada P.S. falls. The Respondent No.4 made an application for police custody remand in C.R. No. 14/07, claiming that the petitioner was an absconder who had been arrested at 17:30 hrs on 27-9-2011. The Petitioner made a written application in person in which he submitted the facts concerning all the nine cases in which he had faced trial and had been discharged or acquitted during his period of over 4 years and 4 months as an under trial prisoner up to 27 September 2011 at Nagpur Central Prison. He also stated the facts regarding his kidnapping at the prison in full view of his family member and advocate, and pointed to the violations of the requirements laid down by the Supreme Court in D.K. Basu v/s State of West Bengal (AIR 1997 SC610 at paras 36 to 40) which are to be followed in all cases of arrest or detention. He claimed protection from immediate re-arrest after being released as per the ratio of the Supreme Court in Uday Chand and Ors v/s Sheikh Abdullah, Chief Minister J&K and Ors ….(1983 2SCC 417). He also pointed out that he could not be an absconder as he had been in continuous detention throughout the period prior to the first charge sheet and since then till date. The Petitioner prayed for declaration of his arrest as illegal and for being given a copy of charge sheet and being sent to judicial custody.
- The Hon’ble JMFC, Desaiganj however ignored the serious submissions regarding police violations in the application of the Petitioner and merely passed the following order “seen put up before P.O.” He also granted PCR of 2 days stating that this was granted considering the arguments of the APP and IO. Such arguments noted in the order included the point that the Petitioner had allegedly absconded in the present case. His remand did not mention the application of the Petitioner or consider his submission that he had been throughout in judicial custody during the period he was allegedly absconding. The copy of the said remand order dated 28-09-2011 is annexed herewith and marked as EXHIBIT ‘G’
- On 29 September, 2011, the Hon’ble JMFC Kurkheda, Shri A S Lanjewar passed orders on the above referred application dated 28 September, 2011 made by the Petitioner. The said order misrepresented the Petitioner by wrongly claiming that he had submitted that when he is enlarged on bail he should not be arrested in the same crime. Though the petitioner had not made any such submission, the order first wrongly attributed such submission to the Petitioner and then perversely stated that since re-arrest was not in the same case, it was not illegal. The Hon’ble JMFC’s order also stated that he had perused the remand papers which did not dispute the Petitioner release from Nagpur Central Prison and later arrest and purportedly contained an arrest form showing that intimation of arrest of the Petitioner had been given to his father and therefore rejected the Petitioner’s plea of illegal arrest. The copy of this order of the Hon’ble JMFC dated 29 September,2011, along with the Petitioner’s application dated 28 September,2011, are annexed herewith and marked as EXHIBIT ‘H’
- On 30 September, 2011 when the Petitioner was produced in court at Kurkheda the Hon’ble JMFC, Kurkheda, was pleased to reject an application for further police custody and remanded the Petitioner to judicial custody in C.R. 14/07 Purada P.S. The Petitioner was however shown to be arrested in another offence being C.R. No. 23/07 of Purada P.S. and The Hon’ble JMFC, Kurkheda was pleased to grant police custody of three days vide an order which inter alia observed that charge sheet had been filed showing the Petitioner absconding. Copy of the said order of the Hon’ble JMFC Kurkheda dated 30-9-2011 is annexed herewith and marked as EXHIBIT’I’
- On 3 October, 2011, the Petitioner was remanded to judicial custody and was again lodged back in the Nagpur Central Prison where he was given entry as a new inmate and again classified as a naxalite under trial prisoner. He remains lodged there to date.
- On 21-10-2011, supplementary charge sheets in both cases were filed and after copies thereof were furnished to the Petitioner, the cases were committed by the Hon’ble JMFC, Kurkheda to the Court of Session at Gadchiroli. Since the case in C.R. No. 14/07 of Purada P.S had earlier itself been transferred to the Court of Sessions at Nagpur vide an order u/s 407 Cr PC of this Hon’ble Court, the Petitioner is now facing trial in this case as Sessions Trial No.226/2011 before the court of the Hon’ble Addl. Sessions Judge-11 at Nagpur. In the case in C.R. 23/07 of Purada PS., trial had already been completed and ended in acquittal of three accused on 28-3-2011 vide Sessions Case No. 127/2010. the Petitioner now facing trial in a newly registered Sessions Case No. 101/2011 before the Court Of the Hon’ble Principal District and Sessions Judge at Gadchiroli who has been pleased to grant bail u/s 439 Cr PC to the Petitioner, observing that “the State has not given any strong reasons as to why the police has not arrested the applicant (i.e. the Petitioner) in C.R. No. 23/07 from 24-4-2007 till today” and also that “though some cases have been registered against the applicant, yet not a single charge had been proved against him in the last five years”. The copy of the said Order of bail dated 10-11-2011, in Marathi with English translation thereof is annexed herewith and marked as EXHIBIT ‘J’
8. The Petitioner says and submits that a perusal of documents with the charge sheets furnished to the petitioner discloses the following facts providing substantive authentication of the Petitioners contentions concerning illegal and mala fide acts of the Respondents and throwing light on the issues raised in this Petition:-
(i)The charge sheet in the first offence, the Petitioner was rearrested i.e. C.R.No. 14/07 of Purada PS contains an Arrest form purportedly prepared on 27-9-2011, and signed only by the I O i.e. Respondent no.4. Copy of the said Arrest Form is annexed herewith and marked as EXHIBIT ‘K’ It does not carry signature of either any witness or of the arrested person i.e. the Petitioner as is required u/s 41B(b)Cr PC. The Respondent No.4 states on the Form that the arrested person refused to sign, but such allegation had not been raised when the Petitioner was produced before the Hon’ble JMFC on 28-9-2011. In the absence of the Petitioner being confronted with this in Court and in the absence of the signature of even a single witness as required by law, the allegation that the Petitioner refused to sign cannot be given credence. In the absence of signatures of witness and accused person, the Arrest Form seizes to be a valid memorandum of arrest as required u/s 41B (b) Cr PC
(ii) The said Arrest Form gives the time and place of arrest as 17:30 hrs at Desaiganj thus attempting to disassociate from the abduction of the Petitioner from the premises of Nagpur Central Prison. Neither in this Arrest Form or anywhere else in the charge sheet is an explanation offered as to how it came to be that the Petitioner who had allegedly been absconding for many years had suddenly been arrested at Desaiganj at 17:30 hrs on 27-9-2011. Further by stating such place and time of arrest, the Respondent no.4 was clearly admitting that the abduction of the Petitioner at 14:30 hrs from Nagpur Central Prison had no legal sanctity whatsoever either u/s 41 or 55 Cr PC or under any other law in force.
(iii) The said Arrest Form names the father of the Petitioner as the person informed regarding his arrest. The Petitioner says and submits that the RespondentNo.4 had not informed his father or any other family member or friend regarding his arrest and place of detention as required u/s 50A Cr PC and that he had not even taken his father’s phone number to even attempt to contact and inform him. Hereto annexed and marked as Exhibit K1 is a copy of the Affidavit of Shri Thomas Ferreira, father of Petitioner herein denying the alleged fact that he was informed about the Arrest of the Petitioner by Respondent No 4 or any other State Authority
(iv)The charge sheet in the said first offence i.e. C.R No. 14/07 of Purada P S does not give any satisfactory explanation as to how the Petitioner could have been declared absconder and why he continued for over three years to be considered as absconder at a time when he was throughout in judicial custody and why he was only arrested on release from prison. The only attempt at an explanation is in the Final Report Form that stated that the earlier charge sheet u/s 299 Cr Pc was against one Arun and that recent statements of naxalites who had surrendered under the Government Surrender Policy in February, May and July 2011, and are now residing at Gadchiroli District Police Headquarters had disclosed that the Arun mentioned in the charge sheet was Arun Thomas Ferreira i.e. the Petitioner. A perusal of the statements of the said surrendered naxalites reveals that they have purportedly identified the Petitioner on the basis of photographs. But the earlier original charge sheet against one Arun u/s 299 Cr Pc filed on 26-5-2008 and two supplementary charge sheets filed after two rounds of further investigation u/s 173(8)Cr Pc, the first on 8-4-2010 and then next on 25-7-2011 also had similar witness statements of Naxalites who had surrendered according to Government surrender policy and whose statements had purportedly been recorded in June and July,2007 i.e. soon after the first arrest of the Petitioner in May 2007. Thus the earlier witnesses too who had claimed to have seen and could recognise one Arun, could have then itself, or at any time in the subsequent four years, been asked to identify , through photographs or other means whether the one Arun then mentioned was the Petitioner or not. Since such identification had not been done then in the months soon after the petitioners arrest, it is evident that the Arun mentioned in the earlier charge sheet is not the Petitioner and the Respondent No.4 is merely using persons residing in the Gadchiroli District Police Headquarters to artificially create evidence with mala fide intent of arresting the Petitioner after release from prison in order merely to extend his period of incarceration.
(v) The charge sheet in the second offence the Petitioner was rearrested in , i.e. Cr. No. 23/07 of Purada PS contains a copy of application dated 30-9-2011 made by the Respondent No.5 for permission to arrest the Petitioner, which makes the false unsubstantiated statement that charge sheet had previously been filed u/s 299 Cr PC against the Petitioner. The copy of the said application dated 30-9-2011 in Marathi along with the English translation thereof is annexed herewith and marked as EXHIBIT ‘L’. A perusal of both the original charge sheet in this offence dated 25-03-2010 and the supplementary charge sheet dated 25-7-2011 filed after further investigation u/s 173(8) Cr PC do not show the Petitioner as absconder against whom the charge sheet has been filed u/s 299 Cr PC. Even if the Petitioner had been named as absconder as averred by the Respondent No.5, there is no explanation in the charge sheet as to how the Petitioner in judicial custody could have been shown absconding and how he came to be arrested only after release in all previous cases. Hereto annexed and marked as Exhibit L1 and Exhibit L2, respectively, is a copy of the said charge sheets dated 25.03.2010 and 25.7.2011
(vi) The charge sheet in the said second offence, i.e. C.R.No. 23/07 of Purada PS., consists basically of the statements of 6 surrendered Naxalites three of which were purportedly recorded in June and July of 2007 i.e. soon after the Petitioner’s first arrest in May 2007 and were part of earlier charge sheets and three of which were purportedly recorded on 3 October 2011 i.e. immediately after the re-arrest of the Petitioner after release in all previous cases. The said statements are similar to those purportedly taken in the first offence i.e. C R No. 14/07 and show the statement of witnesses in 2007 naming one Arun as a person they could recognise and statements of witnesses in 2011 identifying him in photographs as Arun Ferreira i.e. the Petitioner. Just as in the charge sheet in the first offence, so also in the charge sheet of the second offence too, it is quite apparent that such identification on the basis of photographs had not been done in the months soon after the Petitioners arrest it is evident that the Arun mentioned in the statements of 2007 in the earlier charge sheet is not the Petitioner and the Respondent No.5 is merely now using persons residing in the Gadchiroli District Police Headquarters to artificially create evidence to justify his re arrest of the Petitioner with mala fide intent to extend his period of incarceration. Hereto annexed and marked as Exhibit L3 and Exhibit L4 respectively is a copy of the statements allegedly made by the alleged surrendered naxals on or about june/july of 2007 and 3.10.2011
The artificial and fabricated nature of the evidence provided can be all the more clearly seen in the supplementary charge sheets in both offences dated 25/07/11 filed against another accused by respondent no.5 after purportedly doing further investigation u/s 173(8) cr.p.c. the said two charge sheets contain two statements each , all dated 28/06/2011, of two surrendered naxalites residing at Gadchiroli police headquarters which do not make any mention whatsoever of the petitioner , within just about 3 months , while purportedly doing still further investigation , statements are shown to be recorded of the very same surrendered naxalites in the very same offence allegedly identifying the petitioner just around the time of his release from jail, thus the same respondents , with the malafide intent of extending the period of incarceration of the petitioner, have merely used the person residing at the Gadchiroli police headquarter to artificially create evidence to justify the petitioner’s re-arrest
(vii) The charge sheet in the said second offence i.e. C R No. 23/07 of Purada PS also carried a copy of a Wireless Message sent out by the Respondent No.5 to all police stations in Gadchiroli district informing regarding the arrest of the Petitioner and instructing them to appear with requisite papers in Court if the Petitioner was required in any offence. Copy of the said wireless message dated 30-9-2011 in Marathi along with the English translation is annexed herewith and marked as EXHIBIT’N’’. Since, despite receiving such communication none of the police stations of Gadchiroli District have come forward till this day to arrest him, there can be no doubt whatsoever that the Petitioner is not wanted in any case in Gadchiroli District.
9. The Petitioner says and submits that section 299 Cr PC applies to absconders and that therefore there can be no justification whatsoever for filing a charge sheet or prosecuting a trial u/s 299 Cr Pc against a person known to be in detention and that the blatant misapplication and misuse of section 299 Cr Pc against the Petitioner is another indicator of the mala fide of the Respondents No. 2 to 5 and their gross abuse of the process of the law and the courts.
10. The Petitioner says and submits that the Respondents No. 2 to 5 and particularly the Respondent No. 2 being under intense pressure from higher ups to show results in regards to naxalite-related offences are attempting to improve their arrest statistics by resorting to arrests and false implication of innocent persons such as the Petitioner. In order to produce reports showing larger number of so called naxalites in detention for longer periods, they are waiting for the acquittal and release of such persons to re arrest them on flimsy and even fabricated evidence and show these as new arrests. In this quest for giving a statistical impression of apparently effective functioning the said Respondents are paying scant regard to the letter and spirit of the Law. Even in cases when they can apply to courts for production warrant u/s 267 Cr P C to implicate those like the Petitioner in judicial custody they prefer to file charge sheets u/s 299 Cr PC showing persons in custody like the Petitioner as absconding. The charge sheets u/s 299 Cr Pc are then used to arrest such persons immediately on their release and to show their arrests as new arrests of absconding accused to artificially build an image of an efficient police force. Being confident that, in the name of fight against Naxalism, they can rest assured that their higher-ups will provide them immunity against punitive action for their violations of fundamental rights, they are becoming increasingly more blatant in re arresting after release on acquittal or bail and are even resorting to openly illegal acts such as abduction from prison premises, secret confinement and the like. They then attempt to portray before higher-ups and in the media and elsewhere that these arrests are major successes of the investigating and prosecuting police authority.
11. The extent of this malaise of police re arrest after court release is so widespread under the jurisdiction of the Respondent No. 2 that it has been referred to as a modus operandi and deplored strongly by no less an authority than the erstwhile Principal District and Sessions Judge of Gadchiroli District who, in the course of a number of trials conducted by him had ample opportunity to observe such modus operandi at close quarters. His observations concerning the infringement of Fundamental Rights by this modus operandi of the police have been made in judgements in cases of two other under trial prisoners who are fellow-inmates of the Petitioner at Nagpur Central Prison and who have been re-arrested on release on more than one occasion in the past. These observations have also been brought to the notice of this Hon’ble Court in a Criminal Writ petition No. 161/2011 filed by the said under trial fellow prisoners of the Petitioner and which is at present posted for final hearing.
12. The Petitioner says and submits that abduction from the Nagpur Central Prison premises, wrongful and secret confinement and detention and subsequent re arrest is not an uncommon occurrence. Despite the Petitioner and his family members being submitted to the mental agony, ignominy and indignity of forceful land secret abduction and re arrest even after establishing his innocence in nine trials before courts in three districts fought over almost four and a half years, the Petitioner and his family cannot even today be sure that the same suffering will not be inflicted once more on them at the time of release from the two newly applied cases. In the absence of preventive or punitive intervention of any authority the respondents and other police authorities have been known to repeatedly resort to such methods of re arrest on a single prisoner and it is such fate that still confronts the Petitioner and his family. It is to free himself and his family from this continuing harassment and suffering caused by unfair, arbitrary and illegal acts and procedure, by mala fide and vexatious litigation, by abuse of the process of law and the courts and the violation of various rights, the Petitioner has no option other than to approach this Hon’ble Court.
13. The Petitioner has now therefore approached this Hon’ble Court for the reliefs prayed for herein on the following grounds, all of which are set out in the alternative without prejudice to one another:-
a) Respondents consciously conspired, planned, directed, abetted and/or participated in the abduction of the Petitioner in violation of his fundamental rights to liberty and to freedom of movement as guaranteed and mandated under Article 21 and 19 of the Constitution of India.
b) Respondents consciously conspired, planned, directed, abetted and/or participated in the abduction of the Petitioner in order to obstruct and frustrate the lawful orders of release of courts of competent jurisdiction, thus violating the fundamental rights under Articles 14, 19 and 21 of The Constitution of India guaranteeing against unjust, oppressive and arbitrary action of the State.
c) Respondents consciously conspired, planned, directed, abetted and/or participated along with other police personnel in the abduction of the Petitioner by criminal force from the Nagpur Central prison premises to Desaiganj and his wrongful and secret confinement for a period of around three hours; a cognisable criminal offence punishable u/s 143,144,166,220,342,352,357,365,368 r/w 34,109,120B,149 of the Indian Penal Code and thus calling for an FIR to be registered at Dhantoli Police Station.
d) Respondents deliberately, consciously and wilfully ensured that the abductors of the Petitioner deployed an unnumbered vehicle and that they did not bear any visible identification of their name in violation of Section 44 B(a) of The Code Of Criminal Procedure and in contempt of the requirements mandated by the Supreme Court of India in accordance with Articles 21 and 22 of the Constitution of India.[D K Basu v/s State of West Bengal, AIR1997 SC 610; 1997)I SCC 416 at paras36 to 40]
e) Respondents deliberately, consciously and wilfully prevented the Petitioner from meeting the legal practitioners of his choice when he was being abducted and taken into detention, thus violating Fundamental Rights guaranteed and mandated under article 22(1) of The Constitution of India.
f) Respondents deliberately, consciously and wilfully did not forthwith give the information regarding the arrest of the Petitioner and the Place where he was being held to any of his relatives or friends in violation of Section 50.A of the Code of Criminal Procedure , thus infringing on the Fundamental Rights guaranteed under Article 21 of the Constitution of India.
g) Respondent No.4’s deliberate, conscious and wilful omission to prepare a memorandum of arrest attested by at least one witness, who is a member of the family of the Petitioner or a respectable member of the locality where the arrest was made and countersigned by the Petitioner is in violation of Section 41 B (b) Cr PC and is a breach of the Fundamental Rights guaranteed under Article 21 of the Constitution of In dia.
h) Respondents by deliberately, consciously and wilfully omitting to reply to comply with the provisions of the Code of Criminal Procedure regarding arrest violated Section 60 A Cr Pc and the Petitioner’s Fundamental Right to Liberty guaranteed under Article 21 of the Constitution of India.
i) Respondents deliberate, conscious and wilful refusal to arrest the Petitioner, whilst already in custody, in respect of cognizable offences in which the Petitioner was ostensibly wanted, exposes their strategy to deliberately consciously and wilfully delay the prosecution of cases and deprive the Petitioner his liberty thus violating his Fundamental Rights to Liberty and Speedy Trial under Article 21 of the Constitution of India.[Joginder Kumar v/s State of U.P and Ors. AIR 1994 SC 1349; 1994) 4 SCC 260 at Para 24; In Re P. Ramachandra Rao, AIR 2002 SC 1856]
j) Respondents deliberate, conscious and wilful refusal to arrest the Petitioner, whilst already in custody, in respect of a cognizable offence in which the chargesheet had already been filed and the Petitioner was spuriously declared absconder exposes a strategy of the Respondents to deliberately, consciously and wilfully delay the prosecution of cases thus violating his Fundamental Rights of Liberty and Speedy Trial under Article 21 of the Constitution of India. [Joginder Kumar V/s State of U.P. and Ors. AIR 1994 Sc 1349; (1994) 4 SCC 260 at Para 24, In Re P. Ramachandra Rao, AIR 2002 sc 1856]
k) Respondents deliberate, conscious and wilful strategy to delay the prosecution and deprive the Petitioner of his Liberty is contrary to the dicta in seven judge bench of the Apex Court In Re P. Ramachandra Rao (AIR 2002 SC 1856, viz:
“The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article-21. Speedy trial, again would encompass within the sweep all its stages including investigation, inquiry, trial, appeal revision and retrial-in short everything commencing with an accusation and expiring with the final verdict – the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication”.
[P. Ramchandra Rao V/s State of Karnataka
(2002) 4 SCC 578 at Para 1]
l) Respondents deliberate, conscious and wilful strategy to postpone the initiation of proceedings for showing arrest of the incarcerated Petitioner in 2 cases till after his acquittal or discharge in all earlier cases is thus a deliberate attempt to unreasonably and inordinately prolong his period of incarceration and a deliberate violation of his right to a speedy trial.
m) Respondents deliberate, conscious and wilful success in strategy to keep the Petitioner incarcerated for a period of over four and a half years is a relevant fact to be considered in deciding whether there has been violation of the right to speedy trial and that the inordinately long period of over four years and four months that the Petitioner has endured in undertrial incarceration before the proceedings in present cases were initiated against him, is an important fact to be considered in deciding whether his right to speedy trial has been violated [A.R. Antulay & Ors V/s R.S. Nayak and Ors AIR 1992 SC 1701; (1992) I SCC 225 at Para 86 (vi)]
n) Respondents deliberate, conscious, wilful, illegal, unconstitutional and malafide conduct of the investigations of FIRs and prosecution of cases against the Petitioner in respect of some offences, selectively and arbitrarily can, according to the test and factors outlines by various Constitution Benches of the Supreme Court, be legitimately called oppressive and unwarranted and the Petitioner has been denied his right to a speedy trial and liberty amounting to a violation of Article 21 of the Constitution of India.
o) Respondents deliberate, conscious, wilful, illegal, unconstitutional and malafide conduct of the investigations of FIRs an prosecution of cases in respect of some of the FIRs against the Petitioner, selectively and arbitrarily are solely the reasons for the delays in a speedy trial and loss of liberty of the Petitioner, thus are fit cases for exercise by this Hon’ble Court of its inherent power vide its writ jurisdiction for enforcement of Fundamental Rights under Article 226/227 of the Constitution for quashing of charges or conviction as the case may be, against the Petitioner.
p) Respondents deliberate, conscious, wilful, illegal, unconstitutional and malafide conduct in the investigations of FIRs and prosecution of cases in respect of some of the FIRs, against the Petitioner, selectively and arbitrarily, indicate the patently vexatious nature of litigation indulged in by the Respondents 2 to 5 and their apparent malafides and abuse of the process and deliberate denial of the Petitioner’s right to speedy trial and liberty and therefore call for the intervention of this Hon’ble Court for quashing all such proceedings or conviction, if any, in exercise of inherent powers u/s 482 Cr.P.C. as well as powers, vide its writ jurisdiction under Article 226 for enforcement of Fundamental Rights guaranteed by the Constitution.
q) Respondent No.3 consciously, deliberately, wilfully and with malafide intent prosecuted the Petitio0ner u/s 299 Cr.P.C., that Section 299 Cr.P.C. applies to absconders and that “absconding means that a person should make himself scarce from law and should not be available to the police for a long time” and that in order to apply Section 299 Cr.P.C. on an accused “the court must be satisfied that the accused has absconded or that there is no immediate prospect 0f arresting him as provided under the first part of Section 299 (i) Cr.P.C.”. [Kasim Babamiya Sheikh v/s State of Maharashtra, 1996 (1) Bom C.R. 296 at para 11; Nirmal Singh v/s State of Haryana, AIR 2000 Sc 1416 at para 4];.
And that therefore there can be no justification whatsoever for filing a charge sheet or prosecuting a trial u/s 299 Cr.P.C. against a person known to be in detention and that thus the blatant misapplication and misuse of Section 299 Cr.P.C. against the Petitioner and abuse of process.
r) Respondent No.3 consciously, deliberately, wilfully and with malafide intent prosecuted the Petitioner u/s 299 Cr.PC viz. Filing a chargesheet u/s 299 Cr.PC against the Petitioner in C.r. No. 14/07 of Purada P.S. on 26.5.2008, a date on which it was well known to the Respondents that the Petitioner was in custody and had already been in custody for over one year, during which period the Respondent No.3 had even applied for and obtained transfer of custody through orders u/s 267 Cr.PC in various crimes of Purada PS for persons who were then being tried as co-accused of the Petitioner in cases in Gondia district.
s) Respondent No.3 consciously, deliberately, wilfully and with malafide intent prosecuted the Petitioner u/s 299 Cr.PC viz. By continuing to consider him as an absconder in the C.r. No. 14/07 of Purada P.S. while doing further investigation in April 2010 u/s 173 (8) Cr.P.C in the said C.R. No. 14/07 and while obtaining transfer of custody in April 2010 through orders u/s 267 Cr.P.C. Of two other persons, namely Sridhar Srinivasan and Vernon Gonsalves, who were at that time being tried as co-accused of the Petitioner in cases in Gondia District.
t) Respondent No.3 consciously, deliberately, wilfully and with malafide intent prosecuted the Petitioner u/s 299 Cr.P.C viz. Sessions Trial No. 28/2010 of Gadchiroli Sessions Court and Sessions Trial No. 226/2011 of Nagpur Sessions Court, both in the above said C.R. No. 14/07 of Purada P.S. were commenced and evidence was led in the absence of the Petitioner by considering him as absconder though he had already by then been in continuous custody for over 4 years at the time the evidence was being led and was even incarcerated in the same prison along with the other accused facing trial in the case.
u) Respondent No.3 consciously, deliberately, wilfully and with malafide intent prosecuted the Petitioner u/s 299 Cr.P.C and refused to obtain transfer of custody of the Petitioner through orders u/s 267 Cr.P.C or any other provisions of law while considering him an absconder when the Respondent was well aware that the Petitioner was in incarceration and lodged in Nagpur Central Prison.
v) Respondents 2 to 5 consciously, deliberately, wilfully and with malafide intent refused to obtain transfer of custody of the Petitioner through orders u/s 267 Cr.P.C or any other provision of law in the two newly applied cases i.e. CR Nos 14/07 and 23/07 of Purada P.S., despite purportedly having recorded statements allegedly implicating the Petitioner in June 2007 and July 2007 i.e. immediately after the arrest of the Petitioner in May 2007 and over 4 years before his eventual arrest in September 2011 in these cases.
w) Respondents 2 to 5 deliberately, consciously, wilfully and with malafide intent refused to obtain transfer of custody of the Petitioner u/s 267 Cr.P.C or under any other provision of law in cases where he was allegedly wanted and wilfully and with malafide intent opted to wait until his acquittal in all previous cases and release from Jail, so as to show the re-arrest of the Petitioner as a new arrest that would improve their performance statistics and could be presented in the media and elsewhere as a new arrest of an absconding accused and a major achievement of the police force.
x) Respondent No.5 deliberately, consciously, wilfully and with malafide intent made false submissions before the Hon’ble JMFC, Kurkheda that the Petitioner had been declared absconder and charge sheeted u/s 299 Cr.P.C in CR No.23/07 of Purada P.S. and the Hon’ble JMFC erred by giving credence to such false statement and mentioning it in his order without verifying it by examining the case-diary or other papers that would have disclosed such falsehood.
y) The abduction of the Petitioner from prison, besides being a criminal offence, also amounted to illegal detention, and the Hon’ble JMFC, Kurkheda who in his order dated 29th September 2011, (at Exhibit ‘H’) had observed that it was not disputed that accused was released from Nagpur Central Prison and later on he was arrested in crime No. 14/07, erred by not holding that the Petitioner had been unlawfully detained and by not reporting the same to the Sessions Judge as required under paragraph 1 of Chapter I of the Criminal Manual issued by this Hon’ble Court.
z) The abduction of the Petitioner from prison, besides being a criminal offence, also amounted to illegal detention, and the Hon’ble JMFC Desaiganj, before whom the Petitioner was produced on 28th September 2011 erred by not taking cognizance of the Petitioner’s pleas of illegal arrest and not immediately inquiring into the matter and by not reporting the same to the Sessions Judge as required vide Paragraph 1 of Chapter I of the Criminal Manual issued by this Hon’ble Court.
aa) Respondent consciously, deliberately, wilfully and with malafide intent violated their duty to inform the Hon’ble Court of Sessions at Chandrapur before re-arresting the Petitioner and taking him into custody after his acquittal and release on bail u/s 437 A Cr.P.C by order of that Hon’ble Court, especially since no disclosure had been made to the Court when it passed the order that any cases were under investigation against the Petitioner, therefore the Petitioner should be released and treated as a free citizen inspite of the fact that he has been subsequently arrested as such subsequent arrest are clearly contrary to the order of release of the Hon’ble Chandrapur Sessions Court. [Uday Chand and Ors v/s Sheikh Mohd, Abdullah, Chief Minister, J.&K and Ors, (1983) 2 SCC 417].
14. The Petitioner says and submits that in criminal law the judgement of guilt or innocence and the determination of the need, nature and quantum of punitive action according to law is the prerogative of the courts and that honouring, accepting and implementing in letter and spirit the judgements and orders of the courts by the executive arm of the State in an integral pillar of the rule of law, and that therefore the institutionalised collusion of various police authorities and jail authorities in order to frustrate and defeat lawful orders of release of competent courts and to otherwise avoid and circumvent due process and procedure established by law is nothing but a serious concerted breach of the rule of law. The involvement of various authorities and their authorised representatives in the abduction of the Petitioner show a high-degree of unquestioned co-operation and participation of all concerned, even in obviously criminal acts and an alarming contempt for the statutes, for the widely known rulings of the apex courts and for the explicit orders of the subordinate judiciary.
`The Respondent No.6, who had been ordered by the Hon’ble Extra Joint Adhoc Additional Sessions Judge at Chandrapur to release the petitioner, provided full use of the prison premises and personnel to ensure that the judicial orders were frustrated and the Petitioner was abducted and confined by yet unidentified persons from the prison itself. His subordinate officer, the Respondent No.7, who was directly and personally responsible for implementing the orders of the court, did all he could to ensure the orders were defeated. He was an active participant in the very act of forcible abduction and confinement and also arranged for police ‘protection’ to the unknown abductors and even threatened the advocates who pointed out to him the illegalities being committed.
The Respondents 8 to 11 and their subordinate staff, through claiming only to be acting on the directions of the Respondent No.7, were themselves police personnel and therefore well aware of the illegalities being committed before their eyes and they thus cannot exculpate themselves, as they were bound to defend the law and thus disobey the illegal orders of the Respondent No.7 as well as stop the illegal act of forcible abduction and confinement being committed under their watch.
15. The Petitioner says and submits that the crimes committed against the Petitioner by the Respondents and their violations of his Fundamental Rights are not isolated or exceptional acts that have been perpetrated only on the Petitioner, but are rather increasingly frequent and becoming almost commonplace occurrences, particularly in relation to cases investigated and prosecuted under the Superintendence of the Respondent No.2. The desire to show results and win awards, accolades and allocations of funds is leading the police officers in Gadchiroli District to improve their statistical presentations before higher ups by artificially increasing the number of persons shown to be arrested. Thus, besides arresting and falsely implicating a number of innocent persons, the police are resorting to the modus operandi of repeated re-arrests on release at prison gates. Numerous prisoners, particularly poor tribal villagers who lack adequate legal defence, are abducted from prisons on release with the active connivance of prison officials. The abductors are then shown to be arrested a new in some remote corner of the district and their arrests are shown as new arrests that boost the performance figures of the arresting police officers and their superiors.
An indicator of the frequency of such abduction and re-arrest is provided in Exhibit-N , annexed herewith which is a list of some 28 under trials who had been abducted from prison premises on release and subsequently re-arrested by Gadchiroli police in just six months between July and December 2011 , this list has been drawn up on the basis of information available to the petitioner while in incarceration and is therefore not exhaustive but is submitted herewith to provide a broad picture of the extent to which such modus operandi is being resorted to.
Such arrests without warrant are also preferred by the police officers as they are done by concealing relevant facts from both the acquitting/bail granting courts who have ordered the release as well as the remanding courts authorising custody in the newly applied cases. The acquitting/bail granting courts are not informed that the undertrial prisoner is under investigation in further cases as is required by Supreme Court ruling in the Uday Chand case (Supra). The remanding courts are not informed that the accused was picked up from the prison immediately on release. Thus the pick-up from jail is always an abduction by force or deception and never a legal arrest without warrant as permitted u/s 41 or 55 (1) Cr.PC in compliance with other provisions of Chapter V of the Code.
The normal and lawful recourse of taking custody of undertrial prisoners after obtaining orders u/s 267 Cr.P.C is not preferred by the Police Officers as such orders require presenting all relevant material before the court required to issue orders u/s 267 Cr.P.C as well as obtaining the permission of the remanding trial courts under whose custody the prisoner is then lodged in prison. Further such arrests after transfer of custody u/s 267 Cr.P.C cannot count as arrests of new persons and do not improve the performance record of a particular police officer and cannot be presented in the media and elsewhere as indicators of an effectively functioning police force.
16. The Petitioner says and submits that the blatantly mala-fide use of Section 299 Cr.P.C is another device of this illegal modus operandi. The police officers avoid obtaining orders u/s 267 Cr.P.C. For taking custody of persons they know to be in prison but rather resort to filing charge sheets u/s 299 Cr.P.C so that these can be used to re-arrest just at the time of release of the prisoners. They even deliberately, consciously and wilfully resort to the malafide device of filing charge sheets u/s 299 Cr.P.C in a number of ambiguous names e.g. One Arun, which can then be used at the time of release of a particular person to insist that the said ambiguous name charge-sheeted u/s 299 Cr.P.C is none other than the then released prison e.g. Arun Thomas Ferreira i.e. the Petitioner. The Petitioner says and submits that such modus operandi is particularly rife among police officers operating under the superintendence of the Respondent No.2 and the Petitioner is one of the victims. Such modus operandi being not in accordance with law and otherwise vocative of the Fundamental Rights guaranteed under the Constitution of India, it calls for urgent remedial intervention and orders of this Hon’ble Court.
17. The Hon’ble Supreme Court has held that, “one of the telling ways in which the violation of that right can reasonably be prevented and the compliance with the mandate of Article 21 secured, is to mulct the violators in the payment of monetary compensation”. [Rudul Shah v/s State of Bihar, (1983) 48 CC 141] it has further held that, “This Court (the Supreme Court) and the High Courts, being the protectors of civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose Fundamental Rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to remedy by way of civil suit or criminal proceedings”[Nilabata Behera v/s State of Orissa (1993) 2 SCC 746 at para 37].
That this Hon’ble Court too had while granting compensation of Rs. 5,000/- per day, in a recent matter of a tribal villager of Gadchiroli district, where the Petitioner had been detained in prison beyond the period he was liable to be detained, observed as follows,” In our considered opinion, when violation of Article 21 is clear on the face of it and is not in controversy, this Court in exercise of its powers under Article 226 of the Constitution of India must grant compensation. This is one of the modes of preventing breach of fundamental right and secure compliance of mandate of Article 21 of the Constitution of India”. [Damji Tingsa Pada v/s 1) The Superintendent, Nagpur Central Prison, 2) The Superintendent of Police, Gadchiroli, 3) State of Maharashtra through Home Secretary, Criminal Writ Petition No.285 of 2011, Bombay High Court, Nagpur Bench, Judgement dated 02.08.2011].
The Petitioner submits that he too is fairly entitled to compensation for the violation of his Fundamental Rights and the legal costs, mental agony and suffering borne by him and his family due to his abduction on 27th September 2011 and subsequently extended incarceration due to deliberately delayed and malafide prosecution. Such compensation could help to prevent future similar breach of fundamental rights.
18. The Petitioner says and submits that his forcible abduction from prison on 27th September 2011 and secret confinement is not only a gross violation of his Fundamental Rights guaranteed under Articles 14, 19, 21 and 22 of the Constitution of India, but is also a cognizable offence punishable under various provisions of law, including sections 143, 144, 166, 220, 342, 352, 357, 365, 368 r/w 34, 109, 120B, 149 of the Indian Penal Code. Written Complaint was immediately submitted by his advocates in person and later by speed post to the concerned Dhantoli Police Station by the officer-in-charge has not shown any indication of registering a crime or recording a First Information Report in this regard. The said crime of 27th September 2011 being a frequent and common place occurrence at the Nagpur Central Prison, happening with full knowledge of the Police and Jail authorities, there is no likelihood of the registration and investigation of the crime without the intervention of the courts.
The Petitioner submits that investigation of the crime is necessary to disclose the identity of the yet unknown adductors as well as to find out the extent and deeper intent, if any, of the conspiracy and the names of those involved and to accordingly prosecute them in the appropriate court of law. It is only such action that can act as a restrain on the practices of the Respondents and such others who have thus grown habitual in their brazen transgressions of the law and the rule of law. It is only the decisive intervention of this Hon’ble Court that can bring about such action that can restrain the perpetrators.
In the absence of any action on them, the Respondents and such others continue to flaunt their self-assumed powers to disregard and contemn the orders of courts, break lawful procedure, to violate the guarantees of the Constitution and to regularly arrange the wilful collusion between various branches of government to perpetrate criminal acts, while giving the false impression that such actions enjoy the sanction of law and immunity from punishment. Meanwhile, like other prisoners, the Petitioner and his family and friends, live in constant fears in apprehension of yet more similar actions that will further force him into extended incarceration. It is this fear and the hope of remedial intervention and action that prompts this Petitioner to approach this Hon’ble Court.
19. The Petitioner has no other alternative equally efficacious remedy except to approach this Hon’ble Court for the reliefs prayed for therein.
20. The Petitioner says that there is no other petition in respect of the subject matter of this petition pending either in the Hon’ble Supreme Court of India or any other High Court in India. As already stated in this petition, Criminal Writ Petition No.454 of 2008 in which this Petitioner was one of the Petitioner’s before this Hon’ble Court, had been disposed off with liberty to file fresh petition.
Hence the present Petition.
PRAYER: The Petitioner therefore most respectfully prays that this Hon’ble Court may be pleased to:-
- Declare that Respondents have violated the Petitioner’s fundamental rights of liberty, speedy trial and freedom of movement guaranteed by the Constitution of India, 1950;
- Quash all the cases pending and /or convictions against the Petitioner in the various courts of the State.
- Direct the Respondent (s) to apologize to the Petitioner and to pay him a sum of Rs. 25,00,000/- (Rupees twenty five lakhs only) as compensation / for infringement of his Fundamental Rights and for the undue harassment he and his family have been subject to at the hands of the Respondent;
- Direct the Respondent No.8 or other appropriate investigating agency / officer to receive, record and register the written complaint dated 27.9.2011 of Advocate Surendra Gadling and other Advocates as a First Information Report of a cognizable offence and conduct investigatio0n and further proceedings according to law.
- Direct a judicial inquiry by a retired High Court Judge or a sitting Sessions Court Judge to inquire into the practice of abduction from prison and re-arrest immediately after release.
- That pending the hearing and final disposition of this petition, this Hon’ble Court may be pleased to restrain the Respondents 2 to 5 and other police authorities from initiating proceedings for arrest of the Petitioner in further cases without the consent of this Hon’ble Court;
- For ad-interim order in terms of prayer (vi) above;
- For costs of and incidental to this petition and;
- For such further and other reliefs and orders as the nature and circumstances of the case may require;
DATE: / /2011 COUNSEL FOR THE PETITIONER
NOTE: The Petitioner is presently incarcerated at Central Prison, Nagpur. Hence his affidavit may kindly be dispensed with.
COUNSEL FOR THE PETITIONER