Firdos Bano vs State Of Chhattisgarh
2022 Latest Caselaw 4868 Chatt

                                                     WPHC No. 10/2022, WPHC No. 13/2022
                                  -1-



                                                                     NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR
                           WPHC No. 10 of 2022
                                Judgment Reserved on 08.07.2022

                                Judgment Delivered on 29.07.2022


•   Firdos Bano D/o Rafi Ali, aged about 30 years, R/o Vill. Lodhma
    Post-Lodhma Tah.- Kunkuri Distt. Jashpur, Chhattisgarh
                                                         ------Petitioner

                                 VERSUS
1. State of Chhattisgarh through Secretary Home Department, D.K.S.
   Bhawan, Mantralaya, Raipur, Chhattisgarh 492001
2. Director General of Police, Police Headiuarter, Sector-19, Atal
   Nagar, Raipur, Chhattisgarh
3. Inspector General     of   Police,   Ambikapur,     District    Surguja,
   Chhattisgarh
4. Superintendent of Police Jashpur District- Jashpur, Chhattisgarh
5. Bhaskar Sharma S.H.O. Police Station- Kunkuri, District Jashpur,
   Chhattisgarh
                                                     -------Respondents

WITH

WPHC No. 13 of 2022

• Rafi Ali, aged about 52 years, S/o Late Shri Salim Ali R/o Vill. Lodhma Post-Lodhma Tah.- Kunkuri Distt. Jashpur, Chhattisgarh

------Petitioner

VERSUS

1. State of Chhattisgarh through Secretary Home Department, Mahanadi Bhawan, Mantralaya, Raipur, Chhattisgarh 492001

2. Director General of Police, Police Headiuarter, Sector-19, Atal Nagar, Raipur, Chhattisgarh

3. Inspector General of Police, Ambikapur, District Surguja, Chhattisgarh

4. Superintendent of Police Jashpur District- Jashpur, Chhattisgarh

5. Bhaskar Sharma S.H.O. Police Station- Kunkuri, District Jashpur, Chhattisgarh

6. Manish Kunwar aged about 32 years, S/o Late Shri Shyam Nath Kunwar, Presently posted as the S.D.O. Police Kunkuri, District Jashpur, Chhattisgarh

-------Respondents

For Petitioners : Mr. Syed Ishhadil Ali, Advocate For Respondent 1 to 4 : Mr. Raghvendra Pradhan, Addl. Adv. Gen. WPHC No. 10/2022, WPHC No. 13/2022

Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge C.A.V. JUDGMENT

1. As both the writ petition are interconnected they are being

disposed of by this common order.

2. Petitioner Firdos Bano has fled Writ Petition (Habeas Corpus) No.

10/2022 seeking direction to Respondents for release of Rafi Ali

(Father) and Md. Wasim Akram (Brother) from unlawful custody of

Respondents-authority. And Rafi Ali fled Writ Petition (Habeas

Corpus) No. 13/2022 seeking direction to Respondents to release

Faiz Akram from unlawful custody of Respondents-authorities and to

take strict action against the ofcer.

3. Mr. Ishhadil Ali, learned counsel for petitioner would submit that

Respondent No. 5 arrested father and the brother of petitioner

Firdos Bano on 17.05.2022 from her house without any information

or intimation to her or any other family members. When petitioner

reached the police station, she was not informed as to under what

authority and under which provisions of law her father and brother

were arrested. Both the persons were not produced before the

jurisdictional Magistrate even after lapse of more than 24 Hours of

arrest. They were arrested without registering any crime and were

being assaulted by Respondent No. 5. He contended that the

detention of father and brother of petitioner was illegal. Their

detention was in violation of Article 21 of the Constitution of India.

4. Writ Petition (Habeas Corpus) No. 13 of 2022 is fled by Rafi Ali

after his release on bail mentioning therein that his son Mohd. Faiz

Akram was arrested by Respondent-authority on 18.05.2022 but till

date he had not been produced before any Court nor any intimation

was given to them. It is stated that the fact of his arrest is pleaded

in paragraph 5 of the reply afdavit dated 30.05.2022 fled by WPHC No. 10/2022, WPHC No. 13/2022

Respondent No. 6 before the High Court in WPHC No. 10/2022.

5. Mr. Raghvendra Pradhan, learned State counsel would submit that

the facts narrated in the writ petition with regard to date of arrest of

Rafi Ali and Wasim Akram are not correct. He contended that

initially complaint was lodged by one Mohd. Nasim against Mohd.

Faiz Akram (younger brother of petitioner Firdos Bano), based upon

which crime bearing No. 0079/2022 was registered for commission

of ofence under Section 366, 376(2)(n) of IPC and Sections 4, 5(I)

and 6 of POCSO Act, 2012 vide F.I.R. dated 07.05.2022 against

Mohd. Faiz Akram. In connection with the aforementioned crime

Rafi Ali and Mohd. Wasim Akram were arrested on 18.05.2022.

Their arrest memo is also available in the case diary. After their

arrest, both the persons were produced before the jurisdictional

Court and their remand was taken. Copy of Remand Form is fled as

Annexure R-1, Remand Form bears endorsement of jurisdictional

Court permitting judicial remand of the said persons. He also

pointed out that the State has fled an application for correction in

the reply fled by them stating that inadvertently name of Faiz

Akram is also shown to be arrested on 18.05.2022. In fact, in the

remand form itself it is mentioned that Faiz Akram was absconding.

He also submitted that taking advantage of inadvertent mistake in

the reply afdavit, Rafi Ali (Father of petitioner), after his release,

has fled the Writ Petition (Habeas Corpus) seeking direction to

Respondents-authorities for release of Faiz Akram pleading therein

that he is also under unlawful custody, which is absolutely incorrect.

He contended that when the information of arrest of father and

brother of petitioner was being given to petitioner Firdos, she

refused to accept written intimation and panchanama to this efect

was prepared on 18.05.2022 which is also part of case diary. He

submitted that in view of the aforementioned facts of the case

when Rafi Ali and Mohd. Wasim Akram were arrested on WPHC No. 10/2022, WPHC No. 13/2022

18.05.2022 in connection with crime registered in police station and

produced before the jurisdictional Court it cannot be said that

father and the brother of petitioner were under unlawful custody or

illegally detained.

6. At this stage, learned counsel for petitioner would submit that

father and the brother of petitioner were taken away by Respondent

No. 5 from her house on 17.05.2022 at about 09:00 AM and they

have been now shown to be arrested on 18.05.2022. The writ

petition was fled on 18.05.2022. The detenues were not produced

before jurisdictional Court within 24 hours, and hence, Rafi Ali and

Mohd. Wasim Akram were in illegal detention of Respondent No. 5.

7. We have heard learned counsel for the parties and also perused the

case diary produced by State counsel before this Court during

course of hearing.

8. As far as WPHC No. 10/2022 fled by Firdos Bano is concerned,

perusal of the case diary would show that F.I.R. bearing crime No.

0079/2022 dated 07.05.2022 is registered at about 16:10 Hours for

ofence under Section 366, 376(2)(n) of IPC and Section 4, 5(I) and

6 of POCSO Act against Mohd. Faiz Akram son of Rafi Ali on

complaint of Mohd. Nasim (father of prosecutrix). Statement of

prosecutrix and other witnesses is also available. Copy of written

report dated 07.05.2022 is also available. As per the arrest memo

available on record, Rafi Ali and Wasim Akram were shown to be

arrested on 18.05.2022 at about 11:10 AM and 11:50 AM

respectively. Remand paper which is placed by counsel for

Respondents is also available mentioning that both the persons

were sent to Court on 18.05.2022 and the jurisdictional Court

granted judicial remand till 01.06.2022.

9. In the pleadings of the writ petition, there is no specifc pleading WPHC No. 10/2022, WPHC No. 13/2022

with regard to the time of arrest but it is only mentioned by

handwriting in the synopsis fled along with memo of petition which

is prepared at a later point of time. Synopsis is not part of pleading

of the writ petition. In absence of specifc pleading in the facts of

the case, we fnd it difcult to accept the submissions made by

counsel for petitioner that her father and brother were arrested on

17.05.2022.

10. From the aforementioned facts and circumstances of the case,

submissions of counsel for petitioner that Rafi Ali and Wasim

Akram, Father and the brother of petitioner in WPHC No. 10/2022,

to be in unlawful custody is not sustainable.

11. For the foregoing discussion, where the Respondent No. 5 arrested

Rafi Ali and Mohd. Wasim Akram in connection with crime bearing

No. 0079/2022, Police Station Kunkuri, District Jashpur, Chhattisgarh

and produced before jurisdictional Court on the same day, we do

not fnd any merit in WPHC No. 10/2022, and as much the same is

liable to be and is hereby dismissed.

12. So far as WPHC No. 13/2022 fled by Rafi Ali is concerned, this

petition is fled only on the basis of some pleadings made in the

reply afdavit fled from the some of Respondents. After fling of

writ petition, an application was fled on behalf of Respondents for

correction in the reply afdavit fled in WPHC No. 10/2022 that due

to inadvertent mistake, Faiz Akram, son of Rafi Ali is also

mentioned to be arrested on 18.05.2022. In fact, in the remand

form dated 18.05.2022 itself there is specifc mention that Faiz

Akram is absconding. Police of police station Kunkuri are already in

search of Faiz Akram in connection with Crime No.79/2022

registered for commission of ofence under Sections 366, 376 (2)

(n) of the IPC and Sections 4, 5(1) and 6 of the POCSO Act.

WPHC No. 10/2022, WPHC No. 13/2022

13. In view of the fact that in the remand form of Rafi Ali and Mohd.

Wasim Akram, there is clear mention that Faiz Akram is absconding,

this Court fnds that the submission made by counsel for the State

in view of the contents of remand form as well as the application for

correction of reply afdavit mentioning arrest of Faiz Akram (who in

fact was absconding), we are satisfed that on the date of fling of

writ petition, Faiz Akram was not under the unlawful custody of

Respondents-authority. Hence, no relief as prayed for can be

granted to petitioner in WPHC No. 13/2022.

14. This writ petition also fails as being devoid of any substance which

is liable to be and is accordingly dismissed.

15. Conseiuently, both the writ petitions stand dismissed.

                Sd/-                                            Sd/-
        (Arup Kumar Goswami)                           (Parth Prateem Sahu)
           CHIEF JUSTICE                                     JUDGE




.P.a.w.a.n.