Unlawful detention in violation of fundamental rights under Article 21 of the Constitution and non-compliance with the provisions of Section 41-A of Cr.P.C.

JUDGMENT

1. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks issuance of a writ of habeas corpus directing the respondents to produce her husband, as, according to the petitioner, he is detained illegally and unlawfully.

2. After the brief hearing on 20th 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 deem it appropriate to reproduce it at this stage itself :

"41-A.- Notice of appearance before police officer.-

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."

4. Mr.Merchant would submit that once this notice is issued, then, in terms of subsection (1), the police officer was satisfied that the arrest of the petitioner''s husband is not required and that the matter falls under the provisions of subsection (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, 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, 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.

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 there