A. D. MANE, J - (1.) THIS is a Criminal Writ Peition under Article 226 read with Articles 21 and 22 of the Constitution of India, arising out of following set of circumstances.
(2.) THE Petitioner is citizen of India and permanently resides in village Pimpalwadi, Taluka Kallam, District-Osmanabad. THE petitioner submits that he is a peace loving citizen and also law abiding citizen. He is agriculturist by occupation. He is married and is having two sons and one daughter. THE respondent No.1 Indirabai is his legally wedded wife. On 24-4-1995 Indirabai filed a complaint against him in Police Station Kallam, inter alia, alleging that she was beaten by the petitioner and the petitioner is in habit of abusing her. She has further alleged that the petitioner removed the hut and sold some household articles and kept the wife and the children without any shelter. The respondent No.2 was working as P. S. I. at Kallam at the relevant time. On receiving the complaint from respondent No.1, he registered the offence under sections 323, 504, 506 read with section 34 of Indian Penal Code but ultimately it was treated as non-cognizable offence under serial No.264 of 1995. The inquiry into that complaint was conducted by Police Head Constable the respondent No.3, who at the relevant time was working under the respondent No.2 at the same police station. During the inquiry he recorded the statements of children of the petitioner and three neighbours. The respondent No.1 was informed that her complaint is of non-cognizable nature and therefore she may approach the Court if she so desires. On 25-4-1995 the respondent No.2 P. S. I. , however, made a report to the respondent No.4 the Special Executive Magistrate for ordering the petitioner to execute a bond with or without surety for keeping peace for such period as he may think fit as according to the respondent No.2 the petitioner was likely to commit breach of peace and disturb the public tranquility. A copy of the said report is annexed to the petition at Exhibit G. At the relevant time one Shri C. G. Sousudi was the Special Executive Magistrate (L. C. B.) Osmanabad but he is now retired with effect from 11-5-1995 and one Shri D. A. Karkhelikar was working in his place as Special Executive Magistrate, who is Police Inspector (L. C. B.) Osmanabad. It appears that the respondent No.4 issued a show cause notice to the petitioner to show cause as to why he should not be ordered to execute a bond of Rs. 5,000/- with two sureties as in his opinion there was sufficient ground for proceeding against the petitioner under sections 109 and 110 of the Code of Criminal Procedure. The petitioner submits that the Police arrested him on the same day and produced before the Respondent No.4 who had registered a Chapter Case No.141 of 1995 under sections 107, 109 and 110 of the Criminal Procedure Code. A copy of the show cause notice is also produced at Exh. J to the petition. The petitioner further says that on the same day he was sent to Jail till 3-5-1995, and he has produced the copy of the warrant at Exhibit K to the petition to that effect.
(3.) IT is the case of the petitioner that right from 25-4-1995 till 26-6-1995 he was kept in District Jail, Osmanabad and released on bond on 26-6-1995 only when the respondents Nos. 2, 3 and 4 learnt that the petitioner was approaching the Honourable High Court. In this context the petitioner says that on 26-6-1995 he informed the Superintendent of Jail, Osmanabad that he has been in jail two months and due to his poverty he could not furnish any bond. On account of this his wife and children are starving and therefore he requested to release him on personal bond with an undertaking that he would furnish the bond after his release. Copy of the said application is annexed at Exh. L to the petition. The petitioner submits that proceeding initiated against him under the provisions of sections 107, 109 110 and 111 of the Code of Criminal Procedure is without jurisdiction and without any powers vested with the authorities. It is submitted that the powers vested with the authorities could be invoked only when there is likelihood of breach of public peace or disturb of public tranquillity and not in case of individual dispute between the husband and the wife. The dispute between the petitioner and the respondent No.1 is of matrimonial nature and not of a general nature so as to initiate proceedings against the petitioner under the aforesaid provisions of the Criminal Procedure Code. It is submitted that the respondent No.2 P. S. I. has intentionally misrepresented and misdirected the respondent No.4 for taking action under the aforesaid provisions of the Code and in consequence the respondent No.4 in collusion with the respondents Nos. 2 and 3 illegally detained the petitioner by exercising the powers wrongly under the Criminal Procedure Code. It is further submitted by the petitioner that the action initiated against the petitioner was not only wrong but unwarranted and without jurisdiction. In this context the petitioner submits that there is clear violation of the provisions contained in Articles 21 and 22 of the Constitution of India. It is submitted that in this given set of circumstances, the respondents Nos. 2 to 4 jointly and severally are liable to be punished for their illegal exercise of powers under the Criminal Procedure Code contrary to the safeguards afforded to the petitioner under the Constitution of India.;