2018 (3) TMI 1690 - HC - Indian Laws

Illegal detention - writ of habeas corpus directing respondent to produce the detenu - Held that - No 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. 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. The husband of the petitioner shall be released from custody by 5.00 p.m. today. Petition disposed off.

Issues:
1. Writ petition under Article 226 seeking issuance of a writ of habeas corpus.
2. Compliance with Section 41-A of the Code of Criminal Procedure, 1973.
3. Allegations of unlawful detention and refusal to accept notice.
4. Examination of panchanama and absence of refusal statement.
5. Request for time to produce contemporaneous record.
6. Lack of compliance with the mandate of law and violation of Article 21.
7. Police officer's refusal to release the petitioner's husband.
8. Direction for immediate release of the petitioner's husband.
9. Initiation of disciplinary proceedings and potential civil and criminal actions against the police officer.

Analysis:
1. The petitioner filed a writ petition seeking a writ of habeas corpus, alleging the illegal and unlawful detention of her husband. The petition was based on the non-compliance with Section 41-A of the Code of Criminal Procedure, 1973, regarding the issuance of a notice before arrest.

2. The petitioner's counsel argued that the notice was issued to the petitioner's husband, directing him to appear before the police officer, and non-compliance with this notice led to the alleged illegal detention. The court examined the panchanama and noted the absence of any statement indicating the husband's refusal to accept the notice.

3. The court granted time to the respondents to produce the contemporaneous record to support their claim of the husband's refusal to accept the notice. The court emphasized the importance of following legal procedures and ensuring compliance with the law to prevent unlawful detentions.

4. Upon further examination of the records and police actions, the court found a clear violation of the mandate of law and a flouting of Article 21 due to the high-handed actions of the respondents. The court directed the immediate release of the petitioner's husband.

5. Despite the court's direction for release, the police officer refused to comply unless specifically ordered by the court. The court criticized the officer's behavior and directed the initiation of disciplinary proceedings against him, along with the possibility of civil and criminal actions by the petitioner and her husband.

6. The court clarified that while the petitioner's husband was to be released immediately, he was not immune from prosecution if found to have violated the law. The court emphasized the need for all actions to be strictly in accordance with the law, highlighting the importance of upholding legal procedures and protecting individuals from unlawful detention.

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