Mumbai: Lawyer drags cops who arrested him to court for violating SC order

Dinesh Tiwari, senior criminal lawyer, Rohini Salian, senior advocate and Rajeshwar Panchal, complainant’s advocate

A Metropolitan Magistrate passed an order in the second week of August, directing a complaint to be registered as a summons case against three police officers including a senior traffic officer, an inspector from the RCF police station and an officer of the rank of Assistant Commissioner of Police, in connection with an alleged offence under section 166A of IPC (public servant disobeying law).

Legal experts say that this is one of rarest cases in the state, where the actions of the police violate the Supreme Court directives of not arresting anyone in an offence that comes with less than seven years of punishment without giving notice, and they also violate a circular issued by the DGP to that effect. The court directed the case to be taken up after a private complaint was filed against these police officers by a lawyer under section 190 of the Criminal Procedure Code.

"The complainant, a lawyer, was arrested in violation of the directives of the Apex Court in the case of Arnesh Kumar vs State of Bihar in 2014, that there should not be automatic arrest of any person simply because an FIR is registered in an offence punishable with upto seven years imprisonment," said advocate Rajeshwar Panchal, who is appearing for the complainant.

Advocate Panchal added, "The Director General of Police, Maharashtra had also issued a circular in this regard directing officials to abide by Apex Court directives. However, the police don't follow the directives and arrest people without giving notice first to appear at the police station. Since the power to arrest is lucrative, the police officers continue to arrest even where it is not justified."

What happened

According to Panchal, the complainant, Vinod Satpute from Chembur, was arrested in connection with offence under Sections 353 (Assault or criminal force to deter public servant from discharge of his duty) and other relevant Sections of IPC, which were punishable with less than seven years, for the crime on August 31, 2020, within the jurisdiction of RCF police station.

Panchal said his client was allegedly accused of parking on the wrong side, objecting to the passage of a BEST bus, and the conductor and he had a heated argument, leading the RCF and traffic police to intervene.

Panchal claimed that his client was taken to the RCF police station and immediately arrested. He was produced before the court the next day and granted bail. He added, "The police failed to adhere to the Supreme Court guidelines, but even overruled the DGP's circular dated July 8, 2014."

The court observed that "in the year 2016 Maharashtra government amended section 190 of Crpc and inserted proviso of the clause (c) of sub section (1 ) of section 190. This amendment bars the cognizance of any offence allegedly committed by a public servant which discharging his / her official duty. Therefore, this aspect is also required to be taken into consideration while taking cognizance of the complaint."

The court order says a) the application be registered as a summon case and b) After registering, the complaint be kept for verification.

Dinesh Tiwari, a senior criminal lawyer said, "The police are bound to adhere to the direction of the SC as well as to the amendment in CrPC section 41 (A) (Notice of appearance before police officer). Only if an accused violates any conditions given in the said section can he be arrested."

Tiwari added, "Unfortunately, the police usually are known for violating rules rather than adhering to them. Moreover, the indifference of the superior officers and reluctance of the affected parties to go to court against police officers, has led to such officers getting encouraged."

Senior advocate and former chief public prospector, Rohini Salian said, "Usually, the common man is unaware of his legal rights and does not pursue wrongdoings of police, but this case is indeed different and the court, prima facie, has accepted the private complaint and directed to consider the same as a summon cases."

"It would be interesting to wait and watch, as the case proceeds in the court and the nature of evidence the complainant produces during the course of verification to corroborate his claims. Only once satisfied will the court proceed further to summon the police officers concerned. Also, the sanction from the government to prosecute them too, may be argued further in detail," explained Salian. The matter will be heard on August 24.