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TMI Blog2018 (3) TMI 1690X X X X Extracts X X X X X X X X Extracts X X X X ..... r:- "1. Heard. The argument of Mr. Merchant, learned counsel appearing for the petitioner, is that this petition is maintainable in the form in which it is presented. This is a petition seeking issuance of Writ of Habeas Corpus to produce the husband of the petitioner, who is in detention. 2. The detention is termed as illegal by Mr. Merchant on the ground that Section 41-A of Code of Criminal Procedure, 1973 ('Cr.P.C.') inserted by Act No. 5 of 2009 with effect from 1st November 2010 and latter on substituted by Act No. 41 of 2010, contemplates notice of appearance before the police officer. 3. Since the petitioner asserts non-compliance with this provision, we deem it appropriate to reproduce it at this stage itself : "41- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner's husband to appear before him at such place as is specified in the notice. 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 sub-section 2 of Section 41-A contemplates issuance of such notice but such phrase would have to be construed as "service or execution of notice", else sub-section 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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to accept the notice referable to and styled as one under sub-section (1) of Section 41-A 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanama and related documents belie the contents of the notice and the alleged refusal on the part of the petitioner's husband. Once this was the position, then, the mandate of Article 21 is clearly flouted by this high handed action of the respondents. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Needless to clarify that the petitioner's husband does not enjoy any immunity from prosecution if he is a criminal. The police officials can also proceed against him, but strictly in accordance with law. We have found that their action is not in accordance with law resulting in the petitioner's husband's illegal detention and that is why this intervention. We, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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