THE STATE OF MAHARASHTRA & ORS.versusTASNEEM RIZWAN SIDDIQUEE

374                      [2018]REPORTS
               SUPREME COURT   11 S.C.R. 374               [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 arrested
      by police in connection to an offence under investigation –
C
      Thereafter, Magistrate remanded him to police custody – 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 offence under
      investigation – High Court held that husband of respondent was
D     illegally and unlawfully detained by the police and made scathing
      observations against the police officials – On appeal, held: In instant
      case, admittedly, when the writ petition for issuance of a writ of
      habeas corpus was filed by the respondent in the High Court,
      husband of respondent during this time was in police custody
      pursuant to an order passed by the Magistrate granting his police
E
      custody in connection with FIR – Further, writ petition was filed
      without challenging the order of the Magistrate – 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
F     a criminal case – No writ of habeas corpus could have been issued
      – Thus, High Court erred by entering upon the merits of the arrest
      in absence of any challenge to the judicial order passed by the
      Magistrate – Furthermore, the High Court wrongly made scathing
      observations against the police officials without giving them
      opportunity to offer explanation on affidavit – Accordingly, order
G
      of the High Court set aside – Penal Code, 1860 – ss.420, 201, 171,
      467, 468 and 120-B – Code of Criminal Procedure, 1973 – ss.160
      and 41-A – Information Technology Act, 2000 – ss.66, 72 and 72(a)
      – Indian Telegraphs Act, 1885 – s.26.

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                                     374
  STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWAN                         375
                   SIDDIQUEE

       Allowing the appeal, the Court                                   A
       HELD: 1. In the present case, admittedly, when the writ
petition for issuance of a writ of habeas corpus was filed by the
respondent and subsequently, decided by the High Court her
husband was in police custody pursuant to an order passed by
the Magistrate granting his police custody in connection with           B
FIR. 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          C
criminal case. Resultantly, no writ of habeas corpus could be
issued. [Para 9][381-H; 382-A-C]
       2. The impugned order of the High Court was passed
notwithstanding the judicial order of remand was still in operation.
The High Court, should not have taken umbrage to the                    D
submission made on behalf of the Deputy Commissioner of Police
that the respondent’s husband could be released if so directed
by the Court. The DCP 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 to have made scathing                   E
observations even against the Investigating Officer without giving
him opportunity to offer his explanation on affidavit.
[Para 10] [382-F-G]
       3. Since no writ of habeas corpus could be issued in the fact
situation of the present case, the High Court should have been          F
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 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. v.
                                                                        G
N.M.T. Joy Immaculate deprecated passing of disparaging and
strong remarks by the High Court against the Investigating
Officer and about the investigation done by them. Accordingly,
the observations made in paragraphs 4 to 6 of the impugned
judgment against the concerned police officials in the facts of the
present case are expunged. [Para 11] [382-H; 383-A-C]                   H
376            SUPREME COURT REPORTS                         [2018] 11 S.C.R.


A           Saurabh Kumar through his father v. Jailor, Koneila
            Jail and Anr. (2014) 13 SCC 436 : [2014] 8 SCR
            909 ; Manubhai Ratilal Patel v. State of Gujarat and
            Ors. (2013) 1 SCC 314 : [2012] 8 SCR 993 ; State
            represented by Inspector of Police and Ors. v. N.M.T.
            Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl.
B
            SCR 71 – relied on.
                               Case Law Reference
            [2014] 8 SCR 909                relied on            Para 9
            [2012] 8 SCR 993                relied on            Para 9
C
            [2004] 2 Suppl. SCR 71          relied on            Para 11
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1124 of 2018.
            From the Judgment and Order dated 21.03.2018 of the High Court
D     of 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, Abhishek
      Gupta, Advs. for the Respondent.
E           The 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 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
F     the respondent, for issue of writ of habeas corpus directing the
      appellants to produce her husband who, according to the respondent,
      was illegally and unlawfully detained by the police in connection with
      FIR No.I-31/2018.
             3. The decision of the High Court is assailed essentially on two
G     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
H     police officials and the said remarks should be expunged.
  STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWAN                                377
          SIDDIQUEE [A. M. KHANWILKAR, J.]

       4. Briefly stated, the facts leading to the filing of this appeal are   A
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
                                                                               B
Report, bearing No.I-31/18 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 120-B
of IPC were added. Later on, police arrested one Prasant Palekar and           C
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
                                                                               D
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 police after 22nd February, 2018. As assured, Rizwan Alam           E
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
                                                                               F
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 Cr.P.C. which notice was attempted to be served but refused by
Rizwan Alam Siddique. Further, when the Investigating Officer along            G
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 nearest police station i.e. Versova
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378             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     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.
B            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
C     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 sub-section (1), the police officer was satisfied
            that the arrest of the petitioner’s husband is not required and that
D           the matter falls under the provisions of sub-section (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.
            5. The factual argument is that this notice is dated 16th March
E           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
F           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,
G           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.

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STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWAN                                379
        SIDDIQUEE [A. M. KHANWILKAR, J.]

  6. Since Mr. Merchant says and on the basis of the pleadings in            A
  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,           B
  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          C
  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                       D
  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 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      E
  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           F
  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
                                                                             G
  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 e-mail identity, mobile and related
  information. The panchanama records that preparation of the same

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380            SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A           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
B     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. After recording that finding, it went on to observe that
      such arrest infringes the valuable right guaranteed under Article 21 of
C     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 4-6 of the impugned judgment,
      which read thus:

D           “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
E           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
F           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
G
            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.

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     STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWAN                            381
             SIDDIQUEE [A. M. KHANWILKAR, J.]

       6. We do not think any assistance can be derived from the entries      A
       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
                                                                              B
       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    C
       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   D
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          E
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,                F
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
                                                                              G
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
1
    (2014) 13 SCC 436
2
    (2013) 1 SCC 314                                                          H
382             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     the writ petition for issuance of a writ of habeas corpus was 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.I-31 vide order dated
      17th March, 2018 and which police remand was to enure till 23rd March,
B
      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
C     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
D     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 proceeded to make observations without
      giving any opportunity, whatsoever, to the concerned police officials to
E     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
F     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
G     a judicial order in force. The High Court ought not 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
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     STATE OF MAHARASHTRA & ORS. v. TASNEEM RIZWAN                                383
             SIDDIQUEE [A. M. KHANWILKAR, J.]

have been loath to enter upon the merits of the arrest in absence of any          A
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
                                                                                  B
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.
       12. As aforesaid, even though this appeal succeeds, since the              C
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.I-
31/2018 strictly in accordance with law and not merely because the
impugned order has been set aside. We may not be understood to have               D
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.

                                                                                  E
Ankit Gyan                                                      Appeal allowed.




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3
    (2004) 5 SCC 729

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