THE STATE OF MAHARASHTRA & ORS. versus TASNEEM RIZWAN SIDDIQUEE on 5 September 2018

374

SUPREME COURT REPORTS

[2018] 11 S.C.R.

A

THE STATE OF MAHARASHTRA & ORS.

v.

TASNEEM RIZWAN SIDDIQUEE

(Criminal Appeal No.1124 of 2018)

B

SEPTEMBER 05, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Writs – Habeas Corpus – Husband of respondent was arrestedby police in connection to an offence under investigation –CThereafter, Magistrate remanded him to police custody – Whether awrit of habeas corpus could be maintained in respect of a personwho is in police custody pursuant to a remand order passed by thejurisdictional Magistrate in connection with offence underinvestigation – High Court held that husband of respondent wasDillegally and unlawfully detained by the police and made scathingobservations against the police officials – On appeal, held: In instantcase, admittedly, when the writ petition for issuance of a writ ofhabeas corpus was filed by the respondent in the High Court,husband of respondent during this time was in police custodypursuant to an order passed by the Magistrate granting his policeEcustody in connection with FIR – Further, writ petition was filedwithout challenging the order of the Magistrate – It was not a caseof continued illegal detention but the incumbent was in judicialcustody by virtue of an order passed by the jurisdictional Magistrate,which was in force, granting police remand during investigation ofFa criminal case – No writ of habeas corpus could have been issued– Thus, High Court erred by entering upon the merits of the arrestin absence of any challenge to the judicial order passed by theMagistrate – Furthermore, the High Court wrongly made scathingobservations against the police officials without giving themopportunity to offer explanation on affidavit – Accordingly, orderGof the High Court set aside – Penal Code, 1860 – ss.420, 201, 171,467, 468 and 120-B – Code of Criminal Procedure, 1973 – ss.160and 41-A – Information Technology Act, 2000 – ss.66, 72 and 72(a)– Indian Telegraphs Act, 1885 – s.26.

H

Allowing the appeal, the Court

HELD: 1. In the present case, admittedly, when the writpetition for issuance of a writ of habeas corpus was filed by therespondent and subsequently, decided by the High Court herhusband was in police custody pursuant to an order passed bythe Magistrate granting his police custody in connection withFIR. Further, without challenging the stated order of theMagistrate, a writ petition was filed limited to the relief of habeascorpus. In that view of the matter, it was not a case of continuedillegal detention but the incumbent was in judicial custody byvirtue of an order passed by the jurisdictional Magistrate, whichwas in force, granting police remand during investigation of acriminal case. Resultantly, no writ of habeas corpus could beissued. [Para 9][381-H; 382-A-C]

2. The impugned order of the High Court was passednotwithstanding the judicial order of remand was still in operation.The High Court, should not have taken umbrage to thesubmission made on behalf of the Deputy Commissioner of Policethat the respondent’s husband could be released if so directedby the Court. The DCP had no other option but to make such asubmission. For, he could not have voluntarily released theaccused who was in police custody pursuant to a judicial order inforce. The High Court ought not to have made scathingobservations even against the Investigating Officer without givinghim opportunity to offer his explanation on affidavit.[Para 10] [382-F-G]

3. Since no writ of habeas corpus could be issued in the factsituation of the present case, the High Court should have beenloath to enter upon the merits of the arrest in absence of anychallenge to the judicial order passed by the Magistrate grantingpolice custody and more particularly for reasons mentioned inthat order of the Magistrate. In a somewhat similar situation,this Court in State represented by Inspector of Police and Ors. v.N.M.T. Joy Immaculate deprecated passing of disparaging andstrong remarks by the High Court against the InvestigatingOfficer and about the investigation done by them. Accordingly,the observations made in paragraphs 4 to 6 of the impugnedjudgment against the concerned police officials in the facts of thepresent case are expunged. [Para 11] [382-H; 383-A-C]

A

BC

DE

F

G

H

ASaurabh Kumar through his father v. Jailor, KoneilaJail and Anr. (2014) 13 SCC 436 : [2014] 8 SCR909 ; Manubhai Ratilal Patel v. State of Gujarat andOrs. (2013) 1 SCC 314 : [2012] 8 SCR 993 ; Staterepresented by Inspector of Police and Ors. v. N.M.T.Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl.BSCR 71 – relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1124 of 2018.

From the Judgment and Order dated 21.03.2018 of the High CourtDof Judicature at Bombay in Writ Petition No. 1353 of 2018.

Nishant Ramakantrao Katneshwarkar, Adv. for the Appellants.

C. A. Sundaram, Sr. Adv., Nikhil Singhvi, Kanak Bose, AbhishekGupta, Advs. for the Respondent.

EThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. Leave granted.

2. The appellants have assailed the decision of the High Court ofJudicature at Bombay dated 21[st] March, 2018 in Writ Petition No.1353of 2018, whereby the High Court allowed the writ petition preferred byFthe respondent, for issue of writ of habeas corpus directing theappellants to produce her husband who, according to the respondent,was illegally and unlawfully detained by the police in connection withFIR No.I-31/2018.

3. The decision of the High Court is assailed essentially on twoGcounts. First, that no writ of habeas corpus could be issued in respect ofa person who was in police custody in connection with a criminal caseunder investigation, pursuant to an order of remand passed by the courtof competent jurisdiction. Second, in any case, the High Court shouldhave refrained from making scathing observations against the concernedHpolice officials and the said remarks should be expunged.

4. Briefly stated, the facts leading to the filing of this appeal arethat on 24[th] January, 2018, a secret information was received by thelocal police that one Mukesh Pandian, who is a private detective, wasobtaining call detail records of different people and was selling them inreturn for hefty amount of money. The police caused the arrest of MukeshPandian and sought call details of Vodafone Company. First InformationReport, bearing No.I-31/18 was registered against Mukesh Pandian foroffences 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 theIndian Telegraphs Act, 1885 and Sections 201, 171, 467, 468 and 120-Bof IPC were added. Later on, police arrested one Prasant Palekar andfound various mobile chats in his mobile including with Rizwan AlamSiddique (husband of the respondent herein) and other persons. Thechat record collected by the police during the investigation, betweenRizwan Alam Siddique and Prasant Palekar, disclosed that Rizwan AlamSiddique had asked Prasant Palekar for call details record of the wife ofone Nawazuddin Siddique, indicative of involvement of Rizwan AlamSiddique in the commission of offence. As a result, a notice was issuedto Rizwan Alam Siddique on 14[th] February, 2018 under Section 160 ofthe Code of Criminal Procedure, in response to which he informed thepolice that he will be travelling till 21[st] February, 2018 and will appearbefore the police after 22[nd] February, 2018. As assured, Rizwan AlamSiddique visited the police station on 23[rd] February, 2018 for recording ofhis statement. As the investigation progressed, presence of Rizwan AlamSiddique was found to be necessary by the Investigating Officer who,therefore, tried to get in touch with him by sending messages on hismobile phone on 15[th] March, 2018. Rizwan Alam Siddique responded tothe said messages and showed his willingness to participate in theinvestigation. However, according to the Investigating Officer he did notcooperate with the police and for which reason, by way of abundantprecaution, on 16[th] March, 2018 the police issued notice under Section41-A of Cr.P.C. which notice was attempted to be served but refused byRizwan Alam Siddique. Further, when the Investigating Officer alongwith his subordinates went to the premises of Rizwan Alam Siddique toserve the said notice, it transpired that Rizwan Alam Siddique wasdestroying the evidence in his mobile phone as well as in his laptop and,therefore, the Investigating Officer took a conscious decision to arresthim by taking assistance from the nearest police station i.e. Versova ABC

DEF

G

H

APolice Station. After his arrest, he was produced before thejurisdictional Magistrate on 17[th] March, 2018 within the statutory period.The jurisdictional Magistrate gave the police custody of Rizwan AlamSiddique until 23[rd] March, 2018 after recording his satisfaction for suchpolice remand.

B5. The respondent, however, rushed to the High Court and filed awrit petition on 18[th]/19[th] March, 2018, being Writ Petition No.1353/2018praying for a direction to the appellants (respondents in the writ petition)to produce her husband before the Court and to justify his detention inaccordance with procedure established by law. Further relief claimedwas to set her husband Rizwan Alam Siddique at liberty. The writCpetition was moved on 20[th] March, 2018 when the Court in its orderrecorded as follows:

“4. Mr. Merchant would submit that once this notice is issued,then, in terms of sub-section (1), the police officer was satisfiedthat the arrest of the petitioner’s husband is not required and thatDthe matter falls under the provisions of sub-section (1) of Section41. He, therefore, was pleased to issue a notice directing thepetitioner’s husband to appear before him at such place as isspecified in the notice.

5. The factual argument is that this notice is dated 16th MarchE2018 and it informs the husband of the petitioner to appear beforethe officer signing this notice on 17th March 2018. Mr. Merchantwould submit that sub-section 2 of Section 41-A contemplatesissuance of such notice but such phrase would have to be construedas “service or execution of notice”, else sub-section 1 would beFrendered otiose. Therefore, until the person fails to comply withthe terms of notice or is unwilling to identify himself, the policeofficer may, subject to such orders as may have been passed bythe competent Court in this behalf, unable to arrest him for theoffence mentioned in the notice. If there was compliance withthe notice by the petitioner’s husband, then, no question arises,Gaccording to Mr. Merchant, of presentation of such petition, but itis the respondents’ assertion that when they sought to serve thisnotice on the petitioner’s husband, he refused. That is how thepanchanama is drawn.

6. Since Mr. Merchant says and on the basis of the pleadings inthe petition, that there was a panchanama drawn and a copy ofwhich is at pages 41 and 42 of the paper book, we have carefullyperused it. It is in Marathi.

7. The whole panchanama has been perused with the assistanceof Mr. Yagnik, learned APP, who with all his persuasive ability,could not find any sentence therein to the effect that the petitioner’shusband refused to accept this notice when it was served on himat his place of work/his office. In these circumstances andparticularly when the notice at page 42 also contains below thesignatures of panchas and the senior police inspector, the signatureof the accused, then, whether it is a signature acknowledging thenotice and it’s receipt or is it asserting, as is now stated across thebar by Mr. Yagnik, his refusal. Once such a statement is absent inthe panchanama, then, we prima facie find it very difficult to agreewith Mr. Yagnik.

8. However, Mr. Yagnik prays for time to produce thecontemporaneous record, which according to him, would indicatethat the noticee/husband of the petitioner refused to accept thenotice referable to and styled as one under sub-section (1) ofSection 41-A of Cr.P.C. On a query as to where is the originalrecord or the contemporaneous record, the answer of Mr. Yagnikis that today in the ongoing legislative assembly session, there is aquery and which has to be answered by the concerned Ministerand he requires the original documents so also officer’s presencein the legislature secretariat. That is how the whole record hasbeen taken to the legislative assembly secretariat. Mr. Yagnik,therefore, seeks time till tomorrow, which is 21st March 2018 at11.00 a.m.. We post this matter tomorrow, 21st March 2018 at11.00 a.m. only to enable Mr. Yagnik to produce such record andanswer the queries of the Court; else, all the consequences in lawshall follow.

9. This opportunity is granted to Mr. Yagnik only because thedocument at pages 41 and 42 denotes that not only the petitioner’shusband was present at his office but he and his staff handedover the articles and details of his e-mail identity, mobile and relatedinformation. The panchanama records that preparation of the same A

BC

DE

F

G

H

380SUPREME COURT REPORTS

[2018] 11 S.C.R.

Ahad commenced at 20.10 hours and ended at 22.10 hours on 16thMarch 2018.

10. Stand over to 21st March 2018 at 11.00 a.m.”

6. Again, the matter was listed on 21[st] March, 2018 when theDivision Bench of the High Court perused the record produced by theBPublic Prosecutor, including the entry in the police diary, the remandreport and other documents. It held that the said record did not shownecessary compliance of the mandate of law before the arrest of RizwanAlam Siddique. After recording that finding, it went on to observe thatsuch arrest infringes the valuable right guaranteed under Article 21 ofCthe Constitution and, therefore, acceded to the request of therespondent to set Rizwan Alam Siddique at liberty forthwith. At the sametime, the High Court went on to make scathing observations against thepolice officials as recorded in paragraphs 4-6 of the impugned judgment,which read thus:

D“4. A brief hearing today resulted in Ms. Pai seeking time to takeinstructions and after speaking to the Deputy Commissioner ofPolice. At her request, the matter was taken up at 1.00 p.m. andwhen it was called out, on instructions from the DeputyCommissioner of police, who is present in court, it is stated thatthe said Deputy Commissioner has no objection to the petitionerEbeing released, if so directed by this court.

5. Once we have noted, in terms of our earlier order and even attoday’s hearing that he is not obliging this court by making anystatement, then, he must admit that he has taken law in his handsand he would voluntarily proceed to release the petitioner’sFhusband from custody. This was the expectation from this policeofficer and if he had apologised genuinely and bonafide and soughttime to release the petitioner’s husband, we would not havedirected any action to be taken against him. However, he remainsadamant and persists that only if this court says that the petitioner’shusband should be released, he would have no objection to suchGrelease. He would bring now to the court, the proceedings beforethe Magistrate and the contents of the remand report, which,according to him, permit him to detain the petitioner’s husband incustody till 23rd March, 2018.

H

STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWANSIDDIQUEE [A. M. KHANWILKAR, J.]

6. We do not think any assistance can be derived from the entriesin the diary or the remand proceedings. We do not think that theorder of the Magistrate remanding the petitioner’s husband topolice custody till 23rd March, 2018 can bind this court and if thetrue and correct facts had been brought to the notice of theconcerned judicial officer, possibly, he would not have passed theorder on the request of this police officer. Therefore, while wedirect, after holding that the petitioner’s husband was unlawfullydetained, his release from the custody forthwith, we also directthe superior police officials, particularly the functionary in theDepartment of Home, Government of India to launch disciplinaryproceedings and the petitioner and her husband may initiate or filecivil suit and criminal prosecution against this police officer fortaking the law in his hands. Such prosecution shall continueuninfluenced by any proceedings that may be initiated against thepetitioner’s husband for having violated the law.”

7. Aggrieved by this decision, the appellants have filed the presentappeal on two counts, as already indicated in paragraph 3 above. Therespondent, on the other hand, has supported the decision of the HighCourt and submits that the appeal is devoid of merit. It is also brought toour notice that Rizwan Alam Siddique has already been released afterthe impugned judgment. In response to this submission, counsel for theappellants would submit that the appellants are more concerned aboutthe scathing observations made by the High Court against the policeofficials and would be more than content if liberty is granted to thepolice to proceed against the said Rizwan Alam Siddique in accordancewith law.

8. We have heard Mr. Nishant Ramakantrao Katneshwarkar,learned counsel for the appellants and Mr. C.A. Sundaram, learnedsenior counsel appearing for the respondent.

9. The question as to whether a writ of habeas corpus could bemaintained in respect of a person who is in police custody pursuant to aremand order passed by the jurisdictional Magistrate in connection withthe offence under investigation, this issue has been considered in thecase of Saurabh Kumar through his father Vs. Jailor, Koneila Jailand Anr.,[ 1] and Manubhai Ratilal Patel Vs. State of Gujarat andOrs.[2] It is no more res integra. In the present case, admittedly, when 1(2014) 13 SCC 436

2(2013) 1 SCC 314

AB

C

DE

F

G

H

Athe writ petition for issuance of a writ of habeas corpus was filed by therespondent on 18[th]/19[th] March, 2018 and decided by the High Court on21[st] March, 2018 her husband Rizwan Alam Siddique was in policecustody pursuant to an order passed by the Magistrate granting hispolice custody in connection with FIR No.I-31 vide order dated17[th] March, 2018 and which police remand was to enure till 23[rd] March,B2018. Further, without challenging the stated order of the Magistrate, awrit petition was filed limited to the relief of habeas corpus. In that viewof the matter, it was not a case of continued illegal detention but theincumbent was in judicial custody by virtue of an order passed by thejurisdictional Magistrate, which was in force, granting police remandCduring investigation of a criminal case. Resultantly, no writ of habeascorpus could be issued.

10. Reverting to the prayer for expunging the scathingobservations made in the impugned judgment, in particular paragraphs4-6, reproduced earlier, it is submitted that the said observations wereDwholly unwarranted as the concerned Deputy Commissioner of Policewho was present in Court, could not have given concession to releaseRizwan Alam Siddique in the teeth of a judicial order passed by theMagistrate directing police remand until 23[rd] March, 2018. Moreover, itis evident that the High Court proceeded to make observations withoutgiving any opportunity, whatsoever, to the concerned police officials toEexplain the factual position on affidavit. The writ petition was filed on18[th]/19[th] March, 2018 and was moved on 20[th] March, 2018 when theCourt called upon the Advocate for the appellants to produce the recordon the next day i.e. 21[st] March, 2018. The impugned order came to bepassed on 21[st] March, 2018, notwithstanding the judicial order ofFremand operating till 23[rd] March, 2018. The High Court, in our opinion,should not have taken umbrage to the submission made on behalf of theDeputy Commissioner of Police that the respondent’s husband could bereleased if so directed by the Court. As aforesaid, the DCP has had noother option but to make such a submission. For, he could not havevoluntarily released the accused who was in police custody pursuant toGa judicial order in force. The High Court ought not to have madescathing observations even against the Investigating Officer without givinghim opportunity to offer his explanation on affidavit.

11. Suffice it to observe that since no writ of habeas corpus couldbe issued in the fact situation of the present case, the High Court shouldH

have been loath to enter upon the merits of the arrest in absence of anychallenge to the judicial order passed by the Magistrate granting policecustody till 23[rd] March, 2018 and more particularly for reasonsmentioned in that order of the Magistrate. In a somewhat similarsituation, this Court in State represented by Inspector of Police andOrs. Vs. N.M.T. Joy Immaculate[3] deprecated passing of disparagingand strong remarks by the High Court against the Investigating Officerand about the investigation done by them. Accordingly, we have nohesitation in expunging the observations made in paragraphs 4 to 6 ofthe impugned judgment against the concerned police officials in the factsof the present case.

12. As aforesaid, even though this appeal succeeds, since therespondent’s husband Rizwan Alam Siddique has already been releasedafter the impugned judgment, the Investigating Officer may proceedagainst him in connection with the stated crime registered as FIR No.I-31/2018 strictly in accordance with law and not merely because theimpugned order has been set aside. We may not be understood to haveexpressed any opinion regarding the guilt or otherwise of the respondent’shusband or correctness of the charges levelled against him.

13. Accordingly, this appeal is allowed in the aforementioned terms.

Ankit Gyan

Appeal allowed.

3(2004) 5 SCC 729

A

B

C

D

E

F

G

H