The question as to whether a writ of habeas corpus could
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314
filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1124 OF 2018
The State of Maharashtra & Ors. Vs Tasneem Rizwan Siddiquee
Dated:September 05, 2018.
A.M. Khanwilkar, J.
1. Leave granted.
2. The appellants have assailed the decision of the High
Court of Judicature at Bombay dated 21st March, 2018 in Writ
Petition No.1353 of 2018, whereby the High Court allowed the
writ petition preferred by the respondent, for issue of writ of
habeas corpus directing the appellants to produce her
2
husband who, according to the respondent, was illegally and
unlawfully detained by the police in connection with FIR No.I31/
2018.
3. The decision of the High Court is assailed essentially on
two counts. First, that no writ of habeas corpus could be
issued in respect of a person who was in police custody in
connection with a criminal case under investigation, pursuant
to an order of remand passed by the court of competent
jurisdiction. Second, in any case, the High Court should have
refrained from making scathing observations against the
concerned police officials and the said remarks should be
expunged.
4. Briefly stated, the facts leading to the filing of this appeal
are that on 24th January, 2018, a secret information was
received by the local police that one Mukesh Pandian, who is a
private detective, was obtaining call detail records of different
people and was selling them in return for hefty amount of
money. The police caused the arrest of Mukesh Pandian and
sought call details of Vodafone Company. First Information
3
Report, bearing No.I31/
18 was registered against Mukesh
Pandian for offences punishable under Section 420 of the
Indian Penal Code (IPC) and Sections 66, 72 and 72(a) of the
Information Technology Act, 2000. During the investigation,
additional offences under Section 26 of the Indian Telegraphs
Act, 1885 and Sections 201, 171, 467, 468 and 120B
of IPC
were added. Later on, police arrested one Prasant Palekar and
found various mobile chats in his mobile including with
Rizwan Alam Siddique (husband of the respondent herein) and
other persons. The chat record collected by the police during
the investigation, between Rizwan Alam Siddique and Prasant
Palekar, disclosed that Rizwan Alam Siddique had asked
Prasant Palekar for call details record of the wife of one
Nawazuddin Siddique, indicative of involvement of Rizwan
Alam Siddique in the commission of offence. As a result, a
notice was issued to Rizwan Alam Siddique on 14th February,
2018 under Section 160 of the Code of Criminal Procedure, in
response to which he informed the police that he will be
travelling till 21st February, 2018 and will appear before the
4
police after 22nd February, 2018. As assured, Rizwan Alam
Siddique visited the police station on 23rd February, 2018 for
recording of his statement. As the investigation progressed,
presence of Rizwan Alam Siddique was found to be necessary
by the Investigating Officer who, therefore, tried to get in touch
with him by sending messages on his mobile phone on 15th
March, 2018. Rizwan Alam Siddique responded to the said
messages and showed his willingness to participate in the
investigation. However, according to the Investigating Officer
he did not cooperate with the police and for which reason, by
way of abundant precaution, on 16th March, 2018 the police
issued notice under Section 41A
of Cr.P.C. which notice was
attempted to be served but refused by Rizwan Alam Siddique.
Further, when the Investigating Officer along with his
subordinates went to the premises of Rizwan Alam Siddique to
serve the said notice, it transpired that Rizwan Alam Siddique
was destroying the evidence in his mobile phone as well as in
his laptop and, therefore, the Investigating Officer took a
conscious decision to arrest him by taking assistance from the
5
nearest police station i.e. Versova Police Station. After his
arrest, he was produced before the jurisdictional Magistrate on
17th March, 2018 within the statutory period. The
jurisdictional Magistrate gave the police custody of Rizwan
Alam Siddique until 23rd March, 2018 after recording his
satisfaction for such police remand.
5. The respondent, however, rushed to the High Court and
filed a writ petition on 18th/19th March, 2018, being Writ
Petition No.1353/2018 praying for a direction to the
appellants (respondents in the writ petition) to produce her
husband before the Court and to justify his detention in
accordance with procedure established by law. Further relief
claimed was to set her husband Rizwan Alam Siddique at
liberty. The writ petition was moved on 20th March, 2018
when the Court in its order recorded as follows:
“4. Mr. Merchant would submit that once this
notice is issued, then, in terms of subsection
(1), the
police officer was satisfied that the arrest of the
petitioner's husband is not required and that the
matter falls under the provisions of subsection
(1) of
Section 41. He, therefore, was pleased to issue a notice
directing the petitioner's husband to appear before
him at such place as is specified in the notice.
6
5. The factual argument is that this notice is dated
16th March 2018 and it informs the husband of the
petitioner to appear before the officer signing this
notice on 17th March 2018. Mr. Merchant would
submit that subsection
2 of Section 41A
contemplates issuance of such notice but such phrase
would have to be construed as “service or execution of
notice”, else subsection
1 would be rendered otiose.
Therefore, until the person fails to comply with the
terms of notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have
been passed by the competent Court in this behalf,
unable to arrest him for the offence mentioned in the
notice. If there was compliance with the notice by the
petitioner's husband, then, no question arises,
according to Mr. Merchant, of presentation of such
petition, but it is the respondents' assertion that when
they sought to serve this notice on the petitioner's
husband, he refused. That is how the panchanama is
drawn.
6. Since Mr. Merchant says and on the basis of the
pleadings in the petition, that there was a
panchanama drawn and a copy of which is at pages 41
and 42 of the paper book, we have carefully perused it.
It is in Marathi.
7. The whole panchanama has been perused with the
assistance of Mr. Yagnik, learned APP, who with all his
persuasive ability, could not find any sentence therein
to the effect that the petitioner's husband refused to
accept this notice when it was served on him at his
place of work/his office. In these circumstances and
particularly when the notice at page 42 also contains
below the signatures of panchas and the senior police
inspector, the signature of the accused, then, whether
it is a signature acknowledging the notice and it's
receipt or is it asserting, as is now stated across the
bar by Mr. Yagnik, his refusal. Once such a statement
is absent in the panchanama, then, we prima facie
find it very difficult to agree with Mr. Yagnik.
8. However, Mr. Yagnik prays for time to produce the
contemporaneous record, which according to him,
would indicate that the noticee/husband of the
petitioner refused to accept the notice referable to and
styled as one under subsection
(1) of Section 41A
of
Cr.P.C. On a query as to where is the original record or
the contemporaneous record, the answer of Mr. Yagnik
is that today in the ongoing legislative assembly
session, there is a query and which has to be
answered by the concerned Minister and he requires
the original documents so also officer's presence in the
legislature secretariat. That is how the whole record
has been taken to the legislative assembly secretariat.
Mr. Yagnik, therefore, seeks time till tomorrow, which
is 21st March 2018 at 11.00 a.m.. We post this matter
tomorrow, 21st March 2018 at 11.00 a.m. only to
enable Mr. Yagnik to produce such record and answer
the queries of the Court; else, all the consequences in
law shall follow.
9. This opportunity is granted to Mr. Yagnik only
because the document at pages 41 and 42 denotes
that not only the petitioner's husband was present at
his office but he and his staff handed over the articles
and details of his email
identity, mobile and related
information. The panchanama records that
preparation of the same had commenced at 20.10
hours and ended at 22.10 hours on 16th March 2018.
10. Stand over to 21st March 2018 at 11.00 a.m.”
6. Again, the matter was listed on 21st March, 2018 when
the Division Bench of the High Court perused the record
produced by the Public Prosecutor, including the entry in the
police diary, the remand report and other documents. It held
that the said record did not show necessary compliance of the
mandate of law before the arrest of Rizwan Alam Siddique.
8
After recording that finding, it went on to observe that such
arrest infringes the valuable right guaranteed under Article 21
of the Constitution and, therefore, acceded to the request of
the respondent to set Rizwan Alam Siddique at liberty
forthwith. At the same time, the High Court went on to make
scathing observations against the police officials as recorded
in paragraphs 46
of the impugned judgment, which read
thus:
“4. A brief hearing today resulted in Ms. Pai seeking
time to take instructions and after speaking to the
Deputy Commissioner of Police. At her request, the
matter was taken up at 1.00 p.m. and when it was
called out, on instructions from the Deputy
Commissioner of police, who is present in court, it is
stated that the said Deputy Commissioner has no
objection to the petitioner being released, if so directed
by this court.
5. Once we have noted, in terms of our earlier order
and even at today's hearing that he is not obliging this
court by making any statement, then, he must admit
that he has taken law in his hands and he would
voluntarily proceed to release the petitioner's husband
from custody. This was the expectation from this
police officer and if he had apologised genuinely and
bonafide and sought time to release the petitioner's
husband, we would not have directed any action to be
taken against him. However, he remains adamant and
persists that only if this court says that the petitioner's
husband should be released, he would have no
objection to such release. He would bring now to the
court, the proceedings before the Magistrate and the
contents of the remand report, which, according to
him, permit him to detain the petitioner's husband in
custody till 23rd March, 2018.
6. We do not think any assistance can be derived from
the entries in the diary or the remand proceedings. We
do not think that the order of the Magistrate
remanding the petitioner's husband to police custody
till 23rd March, 2018 can bind this court and if the
true and correct facts had been brought to the notice
of the concerned judicial officer, possibly, he would not
have passed the order on the request of this police
officer. Therefore, while we direct, after holding that
the petitioner's husband was unlawfully detained, his
release from the custody forthwith, we also direct the
superior police officials, particularly the functionary in
the Department of Home, Government of India to
launch disciplinary proceedings and the petitioner and
her husband may initiate or file civil suit and criminal
prosecution against this police officer for taking the
law in his hands. Such prosecution shall continue
uninfluenced by any proceedings that may be initiated
against the petitioner's husband for having violated
the law.”
7. Aggrieved by this decision, the appellants have filed the
present appeal on two counts, as already indicated in
paragraph 3 above. The respondent, on the other hand, has
supported the decision of the High Court and submits that the
appeal is devoid of merit. It is also brought to our notice that
Rizwan Alam Siddique has already been released after the
impugned judgment. In response to this submission, counsel
for the appellants would submit that the appellants are more
concerned about the scathing observations made by the High
Court against the police officials and would be more than
content if liberty is granted to the police to proceed against the
said Rizwan Alam Siddique in accordance with law.
8. We have heard Mr. Nishant Ramakantrao
Katneshwarkar, learned counsel for the appellants and Mr.
C.A. Sundaram, learned senior counsel appearing for the
respondent.
9. The question as to whether a writ of habeas corpus could
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314
filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
10. Reverting to the prayer for expunging the scathing
observations made in the impugned judgment, in particular
paragraphs 46,
reproduced earlier, it is submitted that the
said observations were wholly unwarranted as the concerned
Deputy Commissioner of Police who was present in Court,
12
could not have given concession to release Rizwan Alam
Siddique in the teeth of a judicial order passed by the
Magistrate directing police remand until 23rd March, 2018.
Moreover, it is evident that the High Court proceeded to make
observations without giving any opportunity, whatsoever, to
the concerned police officials to explain the factual position on
affidavit. The writ petition was filed on 18th/19th March, 2018
and was moved on 20th March, 2018 when the Court called
upon the Advocate for the appellants to produce the record on
the next day i.e. 21st March, 2018. The impugned order came
to be passed on 21st March, 2018, notwithstanding the judicial
order of remand operating till 23rd March, 2018. The High
Court, in our opinion, should not have taken umbrage to the
submission made on behalf of the Deputy Commissioner of
Police that the respondent’s husband could be released if so
directed by the Court. As aforesaid, the DCP has had no other
option but to make such a submission. For, he could not have
voluntarily released the accused who was in police custody
pursuant to a judicial order in force. The High Court ought not
13
to have made scathing observations even against the
Investigating Officer without giving him opportunity to offer his
explanation on affidavit.
11. Suffice it to observe that since no writ of habeas corpus
could be issued in the fact situation of the present case, the
High Court should have been loath to enter upon the merits of
the arrest in absence of any challenge to the judicial order
passed by the Magistrate granting police custody till 23rd
March, 2018 and more particularly for reasons mentioned in
that order of the Magistrate. In a somewhat similar situation,
this Court in State represented by Inspector of Police and
Ors. Vs. N.M.T. Joy Immaculate3 deprecated passing of
disparaging and strong remarks by the High Court against the
Investigating Officer and about the investigation done by them.
Accordingly, we have no hesitation in expunging the
observations made in paragraphs 4 to 6 of the impugned
judgment against the concerned police officials in the facts of
the present case.
3 (2004) 5 SCC 729
14
12. As aforesaid, even though this appeal succeeds, since the
respondent’s husband Rizwan Alam Siddique has already been
released after the impugned judgment, the Investigating
Officer may proceed against him in connection with the stated
crime registered as FIR No.I31/
2018 strictly in accordance
with law and not merely because the impugned order has been
set aside. We may not be understood to have expressed any
opinion regarding the guilt or otherwise of the respondent’s
husband or correctness of the charges levelled against him.
13. Accordingly, this appeal is allowed in the aforementioned
terms.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
September 05, 2018.
Print Page
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314
filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1124 OF 2018
The State of Maharashtra & Ors. Vs Tasneem Rizwan Siddiquee
Dated:September 05, 2018.
A.M. Khanwilkar, J.
1. Leave granted.
2. The appellants have assailed the decision of the High
Court of Judicature at Bombay dated 21st March, 2018 in Writ
Petition No.1353 of 2018, whereby the High Court allowed the
writ petition preferred by the respondent, for issue of writ of
habeas corpus directing the appellants to produce her
2
husband who, according to the respondent, was illegally and
unlawfully detained by the police in connection with FIR No.I31/
2018.
3. The decision of the High Court is assailed essentially on
two counts. First, that no writ of habeas corpus could be
issued in respect of a person who was in police custody in
connection with a criminal case under investigation, pursuant
to an order of remand passed by the court of competent
jurisdiction. Second, in any case, the High Court should have
refrained from making scathing observations against the
concerned police officials and the said remarks should be
expunged.
4. Briefly stated, the facts leading to the filing of this appeal
are that on 24th January, 2018, a secret information was
received by the local police that one Mukesh Pandian, who is a
private detective, was obtaining call detail records of different
people and was selling them in return for hefty amount of
money. The police caused the arrest of Mukesh Pandian and
sought call details of Vodafone Company. First Information
3
Report, bearing No.I31/
18 was registered against Mukesh
Pandian for offences punishable under Section 420 of the
Indian Penal Code (IPC) and Sections 66, 72 and 72(a) of the
Information Technology Act, 2000. During the investigation,
additional offences under Section 26 of the Indian Telegraphs
Act, 1885 and Sections 201, 171, 467, 468 and 120B
of IPC
were added. Later on, police arrested one Prasant Palekar and
found various mobile chats in his mobile including with
Rizwan Alam Siddique (husband of the respondent herein) and
other persons. The chat record collected by the police during
the investigation, between Rizwan Alam Siddique and Prasant
Palekar, disclosed that Rizwan Alam Siddique had asked
Prasant Palekar for call details record of the wife of one
Nawazuddin Siddique, indicative of involvement of Rizwan
Alam Siddique in the commission of offence. As a result, a
notice was issued to Rizwan Alam Siddique on 14th February,
2018 under Section 160 of the Code of Criminal Procedure, in
response to which he informed the police that he will be
travelling till 21st February, 2018 and will appear before the
4
police after 22nd February, 2018. As assured, Rizwan Alam
Siddique visited the police station on 23rd February, 2018 for
recording of his statement. As the investigation progressed,
presence of Rizwan Alam Siddique was found to be necessary
by the Investigating Officer who, therefore, tried to get in touch
with him by sending messages on his mobile phone on 15th
March, 2018. Rizwan Alam Siddique responded to the said
messages and showed his willingness to participate in the
investigation. However, according to the Investigating Officer
he did not cooperate with the police and for which reason, by
way of abundant precaution, on 16th March, 2018 the police
issued notice under Section 41A
of Cr.P.C. which notice was
attempted to be served but refused by Rizwan Alam Siddique.
Further, when the Investigating Officer along with his
subordinates went to the premises of Rizwan Alam Siddique to
serve the said notice, it transpired that Rizwan Alam Siddique
was destroying the evidence in his mobile phone as well as in
his laptop and, therefore, the Investigating Officer took a
conscious decision to arrest him by taking assistance from the
5
nearest police station i.e. Versova Police Station. After his
arrest, he was produced before the jurisdictional Magistrate on
17th March, 2018 within the statutory period. The
jurisdictional Magistrate gave the police custody of Rizwan
Alam Siddique until 23rd March, 2018 after recording his
satisfaction for such police remand.
5. The respondent, however, rushed to the High Court and
filed a writ petition on 18th/19th March, 2018, being Writ
Petition No.1353/2018 praying for a direction to the
appellants (respondents in the writ petition) to produce her
husband before the Court and to justify his detention in
accordance with procedure established by law. Further relief
claimed was to set her husband Rizwan Alam Siddique at
liberty. The writ petition was moved on 20th March, 2018
when the Court in its order recorded as follows:
“4. Mr. Merchant would submit that once this
notice is issued, then, in terms of subsection
(1), the
police officer was satisfied that the arrest of the
petitioner's husband is not required and that the
matter falls under the provisions of subsection
(1) of
Section 41. He, therefore, was pleased to issue a notice
directing the petitioner's husband to appear before
him at such place as is specified in the notice.
6
5. The factual argument is that this notice is dated
16th March 2018 and it informs the husband of the
petitioner to appear before the officer signing this
notice on 17th March 2018. Mr. Merchant would
submit that subsection
2 of Section 41A
contemplates issuance of such notice but such phrase
would have to be construed as “service or execution of
notice”, else subsection
1 would be rendered otiose.
Therefore, until the person fails to comply with the
terms of notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have
been passed by the competent Court in this behalf,
unable to arrest him for the offence mentioned in the
notice. If there was compliance with the notice by the
petitioner's husband, then, no question arises,
according to Mr. Merchant, of presentation of such
petition, but it is the respondents' assertion that when
they sought to serve this notice on the petitioner's
husband, he refused. That is how the panchanama is
drawn.
6. Since Mr. Merchant says and on the basis of the
pleadings in the petition, that there was a
panchanama drawn and a copy of which is at pages 41
and 42 of the paper book, we have carefully perused it.
It is in Marathi.
7. The whole panchanama has been perused with the
assistance of Mr. Yagnik, learned APP, who with all his
persuasive ability, could not find any sentence therein
to the effect that the petitioner's husband refused to
accept this notice when it was served on him at his
place of work/his office. In these circumstances and
particularly when the notice at page 42 also contains
below the signatures of panchas and the senior police
inspector, the signature of the accused, then, whether
it is a signature acknowledging the notice and it's
receipt or is it asserting, as is now stated across the
bar by Mr. Yagnik, his refusal. Once such a statement
is absent in the panchanama, then, we prima facie
find it very difficult to agree with Mr. Yagnik.
8. However, Mr. Yagnik prays for time to produce the
contemporaneous record, which according to him,
would indicate that the noticee/husband of the
petitioner refused to accept the notice referable to and
styled as one under subsection
(1) of Section 41A
of
Cr.P.C. On a query as to where is the original record or
the contemporaneous record, the answer of Mr. Yagnik
is that today in the ongoing legislative assembly
session, there is a query and which has to be
answered by the concerned Minister and he requires
the original documents so also officer's presence in the
legislature secretariat. That is how the whole record
has been taken to the legislative assembly secretariat.
Mr. Yagnik, therefore, seeks time till tomorrow, which
is 21st March 2018 at 11.00 a.m.. We post this matter
tomorrow, 21st March 2018 at 11.00 a.m. only to
enable Mr. Yagnik to produce such record and answer
the queries of the Court; else, all the consequences in
law shall follow.
9. This opportunity is granted to Mr. Yagnik only
because the document at pages 41 and 42 denotes
that not only the petitioner's husband was present at
his office but he and his staff handed over the articles
and details of his email
identity, mobile and related
information. The panchanama records that
preparation of the same had commenced at 20.10
hours and ended at 22.10 hours on 16th March 2018.
10. Stand over to 21st March 2018 at 11.00 a.m.”
6. Again, the matter was listed on 21st March, 2018 when
the Division Bench of the High Court perused the record
produced by the Public Prosecutor, including the entry in the
police diary, the remand report and other documents. It held
that the said record did not show necessary compliance of the
mandate of law before the arrest of Rizwan Alam Siddique.
8
After recording that finding, it went on to observe that such
arrest infringes the valuable right guaranteed under Article 21
of the Constitution and, therefore, acceded to the request of
the respondent to set Rizwan Alam Siddique at liberty
forthwith. At the same time, the High Court went on to make
scathing observations against the police officials as recorded
in paragraphs 46
of the impugned judgment, which read
thus:
“4. A brief hearing today resulted in Ms. Pai seeking
time to take instructions and after speaking to the
Deputy Commissioner of Police. At her request, the
matter was taken up at 1.00 p.m. and when it was
called out, on instructions from the Deputy
Commissioner of police, who is present in court, it is
stated that the said Deputy Commissioner has no
objection to the petitioner being released, if so directed
by this court.
5. Once we have noted, in terms of our earlier order
and even at today's hearing that he is not obliging this
court by making any statement, then, he must admit
that he has taken law in his hands and he would
voluntarily proceed to release the petitioner's husband
from custody. This was the expectation from this
police officer and if he had apologised genuinely and
bonafide and sought time to release the petitioner's
husband, we would not have directed any action to be
taken against him. However, he remains adamant and
persists that only if this court says that the petitioner's
husband should be released, he would have no
objection to such release. He would bring now to the
court, the proceedings before the Magistrate and the
contents of the remand report, which, according to
him, permit him to detain the petitioner's husband in
custody till 23rd March, 2018.
6. We do not think any assistance can be derived from
the entries in the diary or the remand proceedings. We
do not think that the order of the Magistrate
remanding the petitioner's husband to police custody
till 23rd March, 2018 can bind this court and if the
true and correct facts had been brought to the notice
of the concerned judicial officer, possibly, he would not
have passed the order on the request of this police
officer. Therefore, while we direct, after holding that
the petitioner's husband was unlawfully detained, his
release from the custody forthwith, we also direct the
superior police officials, particularly the functionary in
the Department of Home, Government of India to
launch disciplinary proceedings and the petitioner and
her husband may initiate or file civil suit and criminal
prosecution against this police officer for taking the
law in his hands. Such prosecution shall continue
uninfluenced by any proceedings that may be initiated
against the petitioner's husband for having violated
the law.”
7. Aggrieved by this decision, the appellants have filed the
present appeal on two counts, as already indicated in
paragraph 3 above. The respondent, on the other hand, has
supported the decision of the High Court and submits that the
appeal is devoid of merit. It is also brought to our notice that
Rizwan Alam Siddique has already been released after the
impugned judgment. In response to this submission, counsel
for the appellants would submit that the appellants are more
concerned about the scathing observations made by the High
Court against the police officials and would be more than
content if liberty is granted to the police to proceed against the
said Rizwan Alam Siddique in accordance with law.
8. We have heard Mr. Nishant Ramakantrao
Katneshwarkar, learned counsel for the appellants and Mr.
C.A. Sundaram, learned senior counsel appearing for the
respondent.
9. The question as to whether a writ of habeas corpus could
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314
filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
10. Reverting to the prayer for expunging the scathing
observations made in the impugned judgment, in particular
paragraphs 46,
reproduced earlier, it is submitted that the
said observations were wholly unwarranted as the concerned
Deputy Commissioner of Police who was present in Court,
12
could not have given concession to release Rizwan Alam
Siddique in the teeth of a judicial order passed by the
Magistrate directing police remand until 23rd March, 2018.
Moreover, it is evident that the High Court proceeded to make
observations without giving any opportunity, whatsoever, to
the concerned police officials to explain the factual position on
affidavit. The writ petition was filed on 18th/19th March, 2018
and was moved on 20th March, 2018 when the Court called
upon the Advocate for the appellants to produce the record on
the next day i.e. 21st March, 2018. The impugned order came
to be passed on 21st March, 2018, notwithstanding the judicial
order of remand operating till 23rd March, 2018. The High
Court, in our opinion, should not have taken umbrage to the
submission made on behalf of the Deputy Commissioner of
Police that the respondent’s husband could be released if so
directed by the Court. As aforesaid, the DCP has had no other
option but to make such a submission. For, he could not have
voluntarily released the accused who was in police custody
pursuant to a judicial order in force. The High Court ought not
13
to have made scathing observations even against the
Investigating Officer without giving him opportunity to offer his
explanation on affidavit.
11. Suffice it to observe that since no writ of habeas corpus
could be issued in the fact situation of the present case, the
High Court should have been loath to enter upon the merits of
the arrest in absence of any challenge to the judicial order
passed by the Magistrate granting police custody till 23rd
March, 2018 and more particularly for reasons mentioned in
that order of the Magistrate. In a somewhat similar situation,
this Court in State represented by Inspector of Police and
Ors. Vs. N.M.T. Joy Immaculate3 deprecated passing of
disparaging and strong remarks by the High Court against the
Investigating Officer and about the investigation done by them.
Accordingly, we have no hesitation in expunging the
observations made in paragraphs 4 to 6 of the impugned
judgment against the concerned police officials in the facts of
the present case.
3 (2004) 5 SCC 729
14
12. As aforesaid, even though this appeal succeeds, since the
respondent’s husband Rizwan Alam Siddique has already been
released after the impugned judgment, the Investigating
Officer may proceed against him in connection with the stated
crime registered as FIR No.I31/
2018 strictly in accordance
with law and not merely because the impugned order has been
set aside. We may not be understood to have expressed any
opinion regarding the guilt or otherwise of the respondent’s
husband or correctness of the charges levelled against him.
13. Accordingly, this appeal is allowed in the aforementioned
terms.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
September 05, 2018.
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