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Search illegally itself amounts to infringement of privacy and such act is in breach of the fundamen

DNAYNESHWAR V STATE OF MAHARASTRA, CRIMINAL WRIT PETITION NO.25 OF 2019 – 04.12.2019

This Writ Petition was filed before the High court of Bombay, with the bench at Aurangabad consisting of Honourable Justice S.M. Gavhane and Honourable Justice T.V. Nalawade

The present proceeding was filed for declaration that the act of the respondents, police officers, of taking search of the house of the petitioner on the night between 5-5-2018 and 6-5-2018 was illegal and that was interference in the privacy of the petitioner and his family. The relief was claimed for compensation of Rs.10 lakh for the infringement of fundamental rights, and the Right to privacy. The direction was also sought to prosecute the police officers involved in the house search for offence of trespass and other offences.

PETITIONERS CONTENTION

The learned counsel for the petitioner mainly submitted that police ought to have obtained search warrant first for taking search of the house of the petitioner and as such warrant was not obtained, the house search was illegal. The Court was taken through the provisions of Chapter VIII and some provisions of Chapter V of the Code of Criminal Procedure. Those provisions were altogether different and the purpose behind those provisions is different The specific purposes for which the search can be taken under search warrant were given in provisions of Sections 93 to 95 of the Cr.P.C. In the present matter it was the specific case of the respondents that, on the basis of some secret information that the petitioner was in possession of firearm illegally, the search was taken. There are not only the aforesaid provisions enabling the police officer to take search of the house but there are other provisions like provisions of Sections 165 and 166 of the Cr.P.C. Learned counsel for the petitioner submitted that taking house search illegally itself amounts to infringement of privacy and such act is in breach of the fundamental rights given under Article 21 of the Constitution of India.

RESPONDENTS CONTENTION

It was contended by the respondents that due to such circumstances there was a probability that persons of that local area were having firearms and they were involved in illegal activities and so action was taken by police which was on the basis of secret information. It was the contention of District Superintendent of Police that, present petitioner is driver by occupation and against him, some crimes were registered prior to the date of action though under sections 304-A and 279 of the Indian Penal Code between years 2011 and 2015. It was contended that it cannot be said that the petitioner had no criminal background. The action was taken in good faith by the police.

It was observed that it is not “duty” which requires examination as much as “act” because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. There cannot be a dispute over the propositions made in the two cases. In the present matter, the Court referred to the provisions of sections 165 and 166 of the Cr.P.C. The house of the petitioner was situated within the local jurisdiction of the police station of the respondents and it is their contention that there was specific information about the illegal possession of a firearm against the petitioner and so the search was taken. In view of the provisions of the Cr.P.C. quoted, it can be said that to of the house premises was a part of official duty. In the matter like the present one, there is no need to go into other requirements of the provision of section 165 of the Cr.P.C. to ascertain as to whether the search was being taken by Police Station Officer or the investigating officer.

As the act was done while discharging of duty the observations made by the Apex Court in the aforesaid two cases cited by the learned counsel for the petitioner cannot be used in the present matter. The learned Additional Public Prosecutor placed reliance on the observations made by the Apex Court in the cases of Rakesh Kumar Mishra v. the State of Bihar and Anjani Kumar v. the State of Bihar. In the first matter, there was a similar allegation like the search of the house of the respondent of that matter. Allegations were made that search was motivated and it was for the purpose of humiliating and harassing him. There was also the contention that there was no search warrant.

OBSERVATION MADE BY THE COURT

The Honourable Court observed that

Allegations were made that search was motivated and it was for the purpose of humiliating and harassing him. There was also contention that there was no search warrant. Though search was without warrant the Apex Court held that sanction for prosecution of such police officer needs to be obtained under section 197 of the Cr.P.C. In the second matter of Anjani Kumar similar observations are made and it is observed that if there is reasonable connection between the act and the discharge of duty by public servant, the act would be ‘official’ to which section 197 of the Cr.P.C. would be applicable. On that count the proceeding fled against the public servant was quashed. In view of this position of law, this Court holds that for the prosecution there is necessity of sanction under section 197 of the Cr.P.C. In view of the facts of the present matter this Court holds that no further action like direction for prosecution of the police officers is warranted and giving of the compensation to the petitioner would be suficient.

JUDGEMENT DELIVERED

In the result, the following order was passed by this Honourable Court,

“The petition is partly allowed. It is hereby declared that the search was illegal. The respondents are directed to pay compensation of Rs.25,000/- (Rupees Twenty Five Thousand Only) to the petitioner. The amount is to be deposited initially by the Government within 45 days of this decision. If the amount is not deposited within 45 days the amount shall carry interest at the rate of 8% per annum. After deposit of the amount, the amount is to be given to the petitioner. It will be open to the State to make an inquiry and fasten liability on the concerned for recovery of the amount from the concerned officers. It is open to the petitioner to take appropriate steps permitted by law for prosecution. Rule is made absolute in those terms.”

Tanvi Srivatsan

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