2018 (3) TMI 1690

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.... March, 2018, we passed the following order:- "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 de....

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....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 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, subjec....

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....or time to produce the 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 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 ....

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....ies require the petitioner's husband to remain present on 17th March, 2018, but he has been arrested on 16th March, 2018 at 22.10 hours. The panchanama 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 Commissio....