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TMI Blog2018 (9) TMI 1782X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed 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. 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. 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 strictly in accordance with law and not merely because the impugned order has been set aside - appeal allowed. - Criminal Appeal No. 1124 of 2018 (Arising out of SLP (Crl.) No. 2846/2018) - - - Dated:- 5-9-2018 - Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ. For Appellant: Nishant R. Katneshwarkar, Adv. For Respondents: C.A. Sundaram, Sr. Adv., Nikhil Singhvi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 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 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 41-A of Code of Criminal Procedure 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 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 4-6, reproduced earlier, it is submitted that the said observations were wholly unwarranted as the concerned Deputy Commissioner of Police who was present in Court, 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 proc ..... 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