Bombay High Court
Asma @ Seema Mohd. Ibrahim vs State Of Maharashtra And Anr on 14 October, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:41402-DB
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK
JADHAV
JADHAV
Date:
2024.10.18
1/14 Judgement-Wp-St-19540-2024.doc
14:53:12
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 19540 OF 2024
Asma @ Seema Mohd. Ibrahim,
Age : 31 Years, Occu.: Business,
R/at : Toli Chowki, Nizam Colony, Near
Toyota Showroom, Hyderabad,
Telangana.
.. Petitioner
Versus
1. The State of Maharashtra
(At the instance of Kashigaon Police
Station, Thane.)
2. Commissioner of Police, Thane. .. Respondents
...
Mr. Zaid A. Qureshi a/w Mr. Uday Kanojia, for the Petitioner.
Mr. D. J. Haldankar, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 14th OCTOBER, 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
1. Rule. Rule made returnable forthwith with the
consent of the parties.
2. The Petitioner has approached this Court invoking
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Article 226 and 227 of the Constitution of India and Section
482 of the Code of Criminal Procedure ("Cr.P.C."), for issuance
of Writ of Habeas Corpus against the Respondents-Authorities
for production and release of the Petitioner from the alleged
illegal detention pursuant to her arrest.
3. It is the contention of the Petitioner that, she has
been arraigned as accused in C.R. No. 38 of 2024, registered
with Kashigaon Police Station, Thane, on 15.04.2024, for
alleged commission of offence punishable under Sections 420,
406, 465, 467, 468, 471 read with Section 34 of the Indian
Penal Code, 1860 ("I.P.C.").
According to the complainant in C.R. No. 38 of
2024, the Leave and Licence Agreement was executed
between the accused No.1 i.e. the present Petitioner and the
complainant on 27.11.2023. An amount of Rs.4,000/- was paid
to the complainant through a broker. On 29.11.2023 the
accused No.1 deposited Rs.75,000/- as deposit and Rs.20,000/-
as rent in the complainant's bank account. The accused has
sincerely paid the rent for month of January, however
thereafter in the month of February, no rent was paid, hence
the complainant visited the said rented flat on 23.03.2024.
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Upon inquiry, it was disclosed that the accused
No.1 had sublet the said flat on rent. A heavy deposit of
Rs.11,00,000/- was charged for the same and the accused
herself was not staying there. The occupant lady namely,
Shahnaz Ansari has shown the deposit document to the
complainant. The complainant realized that she was duped.
Even before entering into the leave and licence agreement, the
accused has parted with the said flat, on a heavy deposit from
third party namely Shahanaz Ansari. The complainant
realized that, the accused posed herself to be the owner of the
flat and had shown false ownership documents. The accused
has gained trust and has falsely claimed that, she herself was
the owner of the said flat, thereby cheated the complainant.
On the aforesaid background C.R. No. 38 of 2024 came to be
registered against the accused No.1 alongwith the other
accused on 15.04.2024.
4. The Petitioner has contended that, the
Investigating Officer reached at Hyderabad on 10.09.2024, and
arrested her at mid-night which is in direct violation of the
rights of the Petitioner. She being a woman, is entitled for
protection as envisaged under Section 46(4) of the Cr.P.C., she
could not have been arrested after sunset without following
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mandate of law. The Investigating Officer has flouted the
provisions of the law by taking custody of the Petitioner and
bringing her to Mumbai, in direct violation of her rights. She
has been brought from Hyderabad without obtaining any
transit warrant by the Investigating Officer. According to the
Petitioner, the Investigating Officer has violated the
mandatory conditions, while effecting her arrest as mandated
by the Cr.P.C. and interpreted by the Hon'ble Apex Court. As a
result, the arrest of the Petitioner is nothing less than
wrongful arrest resulting in illegal detention. Hence, the
Petitioner has filed the present Writ Petition, seeking writ of
habeas corpus, seeking direction of her release.
5. It is the contention of the Petitioner that, the
Petitioner has been falsely implicated in the present offence.
The allegations in the complaint are totally false and baseless.
It is also the contention of the Petitioner that, when
the investigating agency has reached Hyderabad for
investigating the crime which is registered at Kashigaon Police
Station on 10.09.2024, they have directly reached the
residence of the Petitioner between 11.30 p.m. and 12.00 a.m..
The custody of the Petitioner has been taken by the
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investigating authority illegally at midnight. The procedure
while effecting the arrest of a woman is disregarded to the
extent that, no woman police officer has accompanied the
Investigating Officer, while effecting arrest of the Petitioner
between sunset and sunrise. There was only one woman
constable accompanied, by the Investigating Officer. Even after
her arrest, the investigating agency has not taken efforts to
produce her before the local Magistrate in order to obtain a
transit remand. The Investigating Officer has hastily directed
the family member of the Petitioner to book a flight for him and
the officers accompanying him, alongwith the Petitioner, for
their travel to Mumbai. The said flight departed from
Hyderabad at 4.00 a.m. on 11.09.2024 and landed in Mumbai
at 5.30 a.m..
The Petitioner was thereafter produced before the
Judicial Magistrate First Class, Thane and without giving any
opportunity of being heard, she was remanded to police
custody. Therefore, the Petitioner is challenging the said arrest
and remand orders issued from time to time.
6. When we have called upon the learned A.P.P. for the
Respondent-State, he has taken us through the reply-affidavit
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which was filed pursuant to the order dated 20.09.2024. The
said reply-affidavit has been filed by Mr. Kiran S. Baghdane,
Police Sub-Inspector, Kashigaon Police Station, Mira-Bhyander,
Vasai-Virar Police Commissionerate, who is the Investigating
Officer of the present crime.
The Investigating Officer has stated that, after he
was handed over the investigation of the said crime, he came
to know that the accused No.1 i.e. the Petitioner is residing at
Hyderabad in Telangana State. He thereafter has obtained
written permission from the DCP, Zone-I, MBVV for visiting
Hyderabad and investigating the said matter. He reached
Hyderabad alongwith his two colleagues on 10.09.2024 at 4.00
a.m.. He alongwith his team members initially met one Faisal
Ahmed at 1.50 p.m., at his office, who in turn had provided
them with the address of the Petitioner and was also kind
enough to show the house of the Petitioner. It was 4.00 p.m.
when the Investigating Officer alongwith his other colleague,
reached the house of the Petitioner.
7. It is stated by the Investigating Officer that, he met
the Petitioner at her residence at about 4.00 p.m. (16.00
hours) on 10.09.2024 and has informed her about the offence
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registered against her. When the information was given to the
Petitioner about the offence registered against her, she has
shown her willingness to accompany the investigating officer
to Mumbai. Thereafter, she called upon one of her relatives to
come to her residence and has requested the said person to
take care of her father. The Petitioner has also shown her
willingness to show the house of the accused No.2, (her fiance).
Initially accused No.2 was not at his residence
when they reached there at 20.00 hours on 10.09.2024. After
his arrival, the accused No.2 informed about the FIR
registered against him in presence of his Advocate and
relatives. He has also shown his willingness to accompany
them to Thane, Maharashtra.
8. A categorical statement is made by the
Investigating Officer that, the Petitioner has informed him that
she is coming to Mumbai, by morning flight on the next day i.e.
11.09.2024 and suggested that, he alongwith his team
members should also travel with them by flight instead of
going by train. The Investigating Officer has contacted a
booking agent whose cellphone number was provided by the
Petitioner to whom he has made payment for his tickets by
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cash in presence of Advocate for the Petitioner and accused
No.2. When they boarded the plane, they were seated
separately. After reaching Mumbai Chatrapati Shivaji
Maharaj International Airport at 6.30 a.m. on 11.09.2024, the
Investigating Officer reached Kashigaon Police Station at 8.15
a.m.. Advocate Mohd. Mustaque and the two accused persons
also came to the police station and they were seated in the
open passage of the police station. There was no restraint on
the said persons.
9. The Investigating Officer started inquiry about the
documents which the accused No.1 had allegedly prepared for
leasing the said flat to the Shahanaz Anasari. The Petitioner
accepted that fake documents were prepared for leasing the
property. According to the Investigating Officer, he has made
Station Diary Entry No.12 on 11.09.2024 at 12.00 noon and
thereafter prepared panchanama and arrested the accused.
Information of their arrest was given to Advocate Mohd.
Mustaque and father of both the the accused. It is categorically
stated that the Advocate Mohd. Mustaque was very much
present at the time of arrest and his statement dated
11.09.2024 is also recorded in respect of the events which
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occurred from visit of the Investigating Officer to Hyderabad
till his return to Mumbai and arrest at Thane, which has been
acknowledged by Advocate. The statement of the Advocate has
been annexed to the reply-affidavit at Exh-"E".
10. According to the Investigating Officer no illegality
as such has been committed by him while arresting the
Petitioner. The Investigating Officer has followed the due
procedure of law while arresting the Petitioner. The Petitioner
has been arrested by the Investigating Officer on 11.09.2024
at 12.00 in noon. The arrest panchanama was conducted on
which signature of the Petitioner has been obtained and notice
under Section 50 of the Cr.P.C. has also been addressed to the
Advocate for the Petitioner.
11. We have heard the learned counsel for the
Petitioner and the learned A.P.P. for the Respondent-State. The
respective counsel have taken us through the memo of the
Petition as well as reply-affidavit filed by the Investigating
Officer, so also the documents annexed thereto.
12. First contention of the Petitioner is that since she
has been arrested at 12.00 midnight, it is against the Section
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46(4) of the Cr.P.C., which requires that while arresting a
woman between sunset and sunrise, it is necessary that the
arrest shall be made by woman police officer after obtaining
special permission of the Judicial Magistrate First Class,
within whose local jurisdiction the offence is committed or the
arrest is made.
In the present case, the allegations regarding
arrest caused at mid-night is totally denied by the
Investigating Authority. According to the Investigating Officer,
the Petitioner herself has shown willingness to accompany the
team of the Investigating Officer to Mumbai and has also made
available the contact number of booking agent through whom
the Investigating Officer has booked tickets.
It is further stated that upon reaching Mumbai
when the accused has arrived at the police station, inquiry was
made with her. She has admitted to have prepared fake
documents of ownership of the flat of the complainant. Only
after taking an entry No.12 in the Station Diary at 12.00 noon,
the arrest panchanama was prepared and given to the
Petitioner and the arrest was made at 12.00 noon. The
intimation about the arrest was also given to the Advocate
Mohd. Mustaque who had accompanied her.
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13. The learned A.P.P. has drawn our attention to the
statement of Advocate Mohd. Mustaque, which is recorded on
11.09.2024, which is at Exh-"E" to the reply-affidavit. In his
statement, he has categorically stated that, he had received
information from Mohd. Laiek that the accused No.1 Mohd.
Ibrahim has allegedly committed a crime and the police are
taking him into their custody. Upon reaching his residence, he
was introduced to the police officers. On coming to know about
the registration of FIR, he has shown his willingness to
accompany them.
He has further stated that, the Investigating Officer
has suggested him that he should take accused Nos.1 and 2 to
Hussaini Alam Police Station and after taking the accused
Nos.1 and 2 to the said Police Station, he should accompany
the accused persons to the Magisterial Court at Hyderabad
and thereafter taking a train they should reach Mumbai.
However, he has requested the Investigating Officer that, they
should immediately take a flight to Mumbai in the morning at
4 o'clock and produce the accused before the Court
immediately.
Accordingly he has introduced the booking agent
and he has also stated that the Investigating Officer has paid a
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cash of Rs.16,200/- to the booking agent in his presence and
they all have taken a flight on 11.09.2024 in the morning at
4.00 a.m. to Mumbai and reached police station at 9.00 a.m..
After making inquiry with the accused, they were arrested
and thereafter produced before the Court at 13.00 hours.
14. In view of the statement of the Advocate Mohd.
Mustaque, it is apparent that the Petitioner has not been
arrested in the night as alleged by her, but she has been
arrested at 12.00 noon on 11.09.2024 at Mumbai and
thereafter she has been immediately produced before the
Magistrate between 1.30 p.m. to 2.00 p.m., as can be seen from
the order passed below PCR Application dated 11.09.2024 in
CR. No. 38 of 2024.
15. The learned 6th Judicial Magistrate First Class,
Thane, has observed in his order that the accused Nos.1 and 2
have been produced before him at 2.00 p.m. by the PSI,
Kashigaon Police Station, Thane. The remand order also
disclose that the Petitioner has been arrested at 12.00 noon.
The Remand Application was served on the Petitioner. It was
also opposed by the Advocate. The learned JMFC has granted
five days of police custody to the Investigating Officer vide
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order dated 11.09.2024 and thereafter on 16.09.2024 on
second Remand Application, the Police Custody of the accused
was granted till 19.09.2024.
Though it is alleged that the opportunity of being
heard through the legal representative was not given to the
Petitioner, however the remand order dated 11.09.2024 and
also the statement of the Advocate Mohd. Mustaque, discloses
that the said Advocate had accompanied the Petitioner from
Hyderabad to Mumbai and even in the police station.
Since the Petitioner has been arrested at 12.00
noon and immediately produced before the learned Magistrate
between 1.30 p.m. to 2.00 p.m., we do not find that there is any
illegality or irregularity committed by the Investigating
Officer, while arresting the Petitioner.
16. The Petitioner has placed reliance on the Judgment
of this Court in case of Kavita Manikikar of Mumbai V/s.
Central Bureau of Investigation BS & FC, Mumbai (Writ
Petition No. 1142 of 2018 dated 10.05.2018), in support of the
contention of the Petitioner that, there is contravention of
Section 46(4) of the Cr.P.C., while making arrest of the
Petitioner, since the Petitioner was arrested after sunset and
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before sunrise. She ought to have been arrested by a woman
police officer by making written report and obtainng prior
permission of the Magistrate, within whose local jurisdiction
the offence is committed or the arrest is made.
17. We have gone through the said Judgment of this
Court, however since the facts of the present case are different
from that of the cited Judgment, we do not think that ratio of
the said Judgment is applicable to the facts of the present case.
Since the arrest of the Petitioner itself is made during the
afternoon, there is no question of adhering to the procedure
prescribed under Section 46(4) of the Cr.P.C.
18. Having considered the documents on record and
submission of the respective parties, we do not find that the
Petitioner has made out a case for grant of any relief as prayed
in the Writ Petition as there is no irregularity or illegality
committed while arresting the Petitioner.
Hence, the Writ Petition fails and the same is
dismissed.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Chaitanya
