Telangana High Court

Amudhala Bindu Sri vs The State Of Telangana on 7 June, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

       HONOURABLE SRI JUSTICE K. LAKSHMAN
                      AND
      HONOURABLE SMT. JUSTICE P. SREE SUDHA

    WRIT PETITION NOs.28067/2023 AND 388 OF 2024


COMMON ORDER:

(Per Honourable Sri Justice K. Lakshman)

Since the lis involved in both the writ petitions and the

parties are one and the same, both the writ petitions were heard

together and decided by way of this common order:-

2. Heard Sri C.V.Srinath, learned counsel for the petitioner

and Sri T.Rajinikanth Reddy, learned Additional Advocate General

appearing for respondents.

3. The petitioner, wife of Sri Ganesh Rajesh, filed these two

writ petitions. She has filed W.P.No.28067 of 2023 contending that

01.10.2023 around 19.00 hours, while she and her husband were at

their residence, her husband received a call asking him to appear in

person before the Station House Officer of Gopalaupuram Police

Station i.e. 4th respondent. Accordingly, he went to 4th respondent

police station. Since then, she had no contact of any sort with her

husband. From then, he was kept in illegal custody of 4th

respondent without informing any reasons or without any authority.

4. After hourly gap around 10.30 p.m., a person claiming to

be from Gopalapuram Police Station, informed her that her

husband was detained in Police Station. Despite her request, that

person did not furnish any more information and instructed her to

come to Gopalapuram Police Station on the next day and meet her

husband. She immediately went to 4th respondent police station and

found her husband sitting on the floor. One of the persons

introduced himself as Inspector of Police, Gopalapuram Police

Station. He snatched her handset. Others forcibly took her

undertaking to release her husband on condition to produce him

before 4th respondent as and when required. They have also

obtained her signatures. They asked her to leave the premises

immediately. When she tried to enquire about her husband, they

did not respond. She requested 4th respondent to release her

husband in view of the undertaking given by her but he did not

release her husband. Her husband's mobile bearing

No.90000104001 was initially rang but later from 02.10.2023 it

was switched off by the officials.

5. It is further contended that on 02.10.2023, she received a

call from unknown number 8112660209 at about 5.18 p.m.

disclosing his identity as Mr. Deekshit Reddy, Sub Inspector of

Police, Gopalapuram Police Station, asking her to come to his

office. She along with her sister-in-law went to Police Station. Her

husband was manhandled by the officials of the 4th respondent.

Then she was allowed to interact with her husband. Her husband

informed her that an incident occurred in the 3rd basement of their

business premises i.e. D-Mart, Secunderabad and a person died. On

suspicion, 4th respondent detained him. She went to 4th respondent

constantly from 01.10.2023, but they have not released her

husband. According to her, 4th respondent detained her husband

illegally and manhandled. She was also instructed to provide food

and basic necessities to her husband.

6. She has filed W.P.No.388 of 2024 alleging that on

03.01.2024 at about 5.30 P.M. while she and her husband were at

their business place i.e. GR Convention Hall, two persons came as

customers and enquired about her husband with regard to

availability of convention centre and video-recorded the entire

Convention Hall. Suddenly a group of 5 members entered into

their house and caught hold of her husband shirt caller, dragged

him and snatch away his mobile. When she tried to record the

incident, one of the persons snatched away her handset. On

enquiry, she came to know that the said persons are North Zone

Task Force and they are acting on the instructions of their superior

officers. She has informed the said fact to her Advocate Mr. Ankit

Kapoor who posted on social media platform. She has recorded a

small video clip of the episode. She was informed to appear in

person before North Zone Task Force. She had no contact of any

sort with her husband.

7. Her husband received a notice on 01.01.2024 wherein it

was mentioned that Dr.P.Gurumurthy, submitted a petition alleging

that her husband has encroached and entered into second floor of

D-Mart premises and forcibly took cell phones of their staff and

two sweepers and sent them out of premises. The said

Dr.P.Gurumurthy is landlord and her husband took the commercial

space i.e. on 2nd floor of D-Mart, Secunderabad, on lease and

running the aforesaid convention centre. Her husband was

implicated in a false case and sent to judicial custody on

06.10.2023. While he was in judicial custody, Mr.Deekshith

Reddy, Sub Inspector of Police, Gopalapuram Police Station, had

come to the convention centre and asked her Manager, to lock the

office, threatened not to open until further orders, took away keys

and in collusion with the landlord, he gave the keys to the landlord

who opened the Convention Centre. Therefore, according to her,

the police have detained her husband illegally from 03.01.2024.

8. On 06.10.2023, when the W.P.No.28067 of 2023 came up

for hearing, learned Assistant Government Pleader informed this

Court about the registration of Cr.No.309 of 2023 against the

husband of the petitioner for the offence punishable under Section

302 of IPC and the same is pending. It is also informed that

petitioner's husband was arrested on the same day i.e. 06.10.2023

at 10.00 a.m. Learned counsel for the petitioner disputed the same.

Therefore, this Court directed 4th respondent to file counter.

9. Vide order dated 19.10.2023, this Court directed 4th

respondent to preserve and produce CCTV footage of his office

and parking area of his office from 01.01.2023 to 06.10.2023 along

with the counter.

10. Accordingly, 4th respondent has filed counter stating that

they never arrested and detained husband of the petitioner from

01.10.2023 onwards as alleged by the petitioner. He is an accused

in Cr.No.309 of 2023 and they have arrested him on 06.10.2023

and produced before learned X Additional Chief Metropolitan

Magistrate, Secunderabad. They never harassed him and inflicted

bodily injuries as alleged. After taking into custody, he was taken

to Secunderabad Railway Station car parking area. Prior to

producing him before learned Magistrate, he underwent medical

examination. The Casuality Medical Officer, Gandhi Hospital,

Secunderabad examined the alleged detenu and issued certificate

dated 06.10.2023 opining that the patient has no co-morbidities. He

is fit and ready to be produced before the Court.

11. The versions of the petitioner are contradictory. At one

place, she stated that she did not meet her husband and at other

place, she has stated that she had seen her husband sitting on the

floor in Police Station. They never took undertaking from the

petitioner. They never directed or instructed the petitioner to

provide food and other amenities. They never snatched her handset.

TATA NEXON car bearing No.TS- 09-EB-2749 and mobile phone

were seized from the possession of the husband of the petitioner.

Other 4 vehicles were also seized. The details of the same are

mentioned in paragraph No.14 of the counter affidavit. According

to him, the Investigating Officer has conducted investigation

strictly in accordance with law. Further in paragraph No.15, he has

stated that CCTV footages are under repair and not in working

condition from 26.09.2023 to 12.10.2023. Therefore, he is not in a

position to submit CCTV footage.

12. In the light of the said counter, considering the directions

issued by the Apex Court in Paramvir Singh Saini vs. Baljit

Singh 1, vide order dated 16.11.2023, this Court directed 2nd

respondent i.e. Commissioner of Police, Hyderabad, to conduct

detailed enquiry and submit report to this Court and also take

action in accordance with law. This Court also directed 2nd

respondent to file counter with regard to violations of the directions

(2021) 1 SCC 184

issued by the Apex Court in Paramvir Singh Saini (supra). This

Court also directed the Investigating Officer in the said crime to

collect call data from mobile No.9000086002 of the petitioner's

husband from 01.10.2023 to 17.10.2023 and also directed the

Investigating Officer to conduct investigation in Cr.No.309 of 2023

strictly in accordance with law.

13. This matter came up for hearing on 28.12.2023, on

which date the learned counsel for the petitioner informed this

Court that Mr. Deekshith Reddy, Sub Inspector of Police, went to

the function hall, directed the petitioner to close it, lock it and hand

over the key to 4th respondent. Accordingly, the petitioner locked

the function hall and handed over the key to him. The learned

Special Govt.Pleader disputed the said fact.

14. In compliance of the said order, 2nd respondent has

conduced an enquiry, filed report and counter. His investigation

reveals the following facts :-

i. The allegations of illegal detention of Sri Ganesh Rajesh from 01.10.2023 to 06.10.2023 are not proved. The Accused No.1 petitioner's husband Sri Ganesh Rajesh was taken into custody only on 06.10.2023 at 03.50 hours and produced for remand before the learned X Additional Chief

Metropolitan Magistrate, Secunderabad on the same day i.e. on 06.10.2023 within 24 hours and the learned Magistrate after duly satisfying herself that there was no illegal detention and no physical torture, accepted the remand at 18:00 hours as seen in Court Records.

ii. I further state that the Sub Inspector of Police Sri P. Deekshith Reddy visited G.R. Convention Hall, 2 Floor of D-Mart Building (Alliance Bay) on 02.11.2023 only for the purpose of summoning the Manager of the said Convention Hall in connection with Crime No.309/2023 on the instructions of the Investigating Officer. The CD File also reveals that the said fact is true in as much as on 02.11.2023, the statement of the Manager of G.R Convention Hall, 2nd Floor of D-Mart Building (Alliance Bay) was recorded under Section 161 of Cr.P.C.

iii. I have also verified the records in the Police Station and also with reference to the functioning of CCTVs during the relevant period. It is found that the CCTV cameras stopped functioning from 26.09.2023 to 12.10.2023. The enquiry revealed that the SHO made efforts to repair, however, I am of the opinion that there is a lapse on the part of the SHO in getting the CCTV Cameras repaired expeditiously and ensure that they function without delay. To that effect, appropriate departmental action had been initiated against the SHO, Gopalapuram PS for his lapse and it is pending for his explanation.

iv. As seen from the record and evidence, the litigants to this property i.e. G.R. Convention hall, 2nd floor of D-Mart Building (Alliance Bay) are fighting over it in spite of the fact that the said property is vested with Enforcement

Directorate under confirmed attachment and further this Court has been misled by the petitioner by deliberately suppressing the above fact.

15. Thus, according to the 2nd respondent, the Station House

Officer of Gopalapuram Police Station has made efforts to get

repairs of the said CCTVs. There is lapse on the part of the SHO in

getting CCTV cameras expeditiously and ensure functioning

without any delay. To that effect, 2nd respondent initiated

departmental action for his lapse and the same is pending for his

explanation.

16. In the counter, 2nd respondent also specifically stated that

about addressing a letter on 26.09.2023 to M/s Eternal Consulting

India Private Limited, the designated contractor for maintenance of

CCTV cameras for Telangana State to replace/repair the CCTV

cameras. However, he has issued charge memo to SHO, dated

04.01.2024 and his explanation is pending. During the course of

hearing, it is brought to the notice of this Court that the 2nd

respondent has placed two officers under suspension including the

Station House Officer/Sub Inspector of Police, Gopalapuram

Police Station.

17. Perusal of the counters filed by the respondents 2 and 4

would reveal that the husband of the petitioner was also involved in

servral crimes i.e. Cr.No.94 of 2019, Cr.No.27 of 2020, Cr.No.40

of 2022, Cr.No.343 of 2023 and Cr.No.4 of 2024 including the

subject crime.

18. Respondents 2 and 4 have also filed counters in

W.P.No.388 of 2024 stating that on 03.01.2024 Sri G.Naveen, Sub

Inspector of Police, City Task Force, received reliable information

from his source that one rowdy sheet of Chilkalguda Police Station

i.e. husband of the petitioner, is frequently visiting GR Convention

and making settlements by putting the local people in fear. On that,

along with his staff went to G.R. convention centre and introduced

themselves as Task Force Police. Even then, the petitioner's

husband abused them in filthy language, pushed them and

assaulted the Sub Inspector.

19. Meanwhile, his staff tried to stop him, but he assaulted

one police constable and twisted his hand. He has also created

nuisance on the road. Therefore, on the complaint lodged by the

said Naveen, Sub Inspector of Police, Cr.No.4 of 2024 for the

offences punishable under Sections 353, 504 and 323 of IPC is

registered against the petitioner's husband and the same is pending.

They have also effected his arrest by following the due procedure

laid down under law and produced him before the concerned

Magistrate. They never detained the husband of the petitioner and

never harassed him as alleged by the petitioner. It is further stated

by them that the Enforcement Directorate has attached the said

G.R.Convention Hall in respect of investigation in a case.

20. Thus, according to the petitioner, Police Gopalapuram

Police Station have arrested, detained, harassed her husband in

both the writ petitions without following due procedure laid down

under law. Therefore, she sought to declare the said detention as

illegal.

21. In the light of the aforesaid discussion, it is relevant to

note this is a writ of Habeas Corpus. The proceedings in a writ of

Habeas Corpus are summary in nature. It is a writ of right and not a

writ of course and may be granted only on reasonable ground or

probable cause being shown. We have to decide the same basing

on the affidavits filed by the parties. In the present writ petition, we

have to consider as to whether the petitioner's husband is in illegal

custody of 4th respondent as alleged by the petitioner.

22. Habeas Corpus proceedings are not to justify or examine

the legality of the custody. The Habeas corpus proceedings is a

medium through which custody of the detenu is addressed to the

discretion of the Court. Habeas Corpus is a prerogative writ which

is an extra ordinary remedy and the writ is issued in the

circumstances of a particular case where ordinary remedy provided

by the law is either invaluable or is ineffective, otherwise a writ

will not be issued in child custody matters. The power of High

Court in granting writ is qualified only in cases where the detention

of minor is to a person who is not entitled to his legal custody. In

view of the same, writ of Habeas Corpus is maintainable where it is

approved that the detention is illegal without any authority of law.

23. The High Court may invoke extra ordinary jurisdiction to

determine the legality of the detention. The High Court has to

examine each case basing on its own facts and circumstances on

case to case basis. There will not be any straitjacket formula in

deciding the custody matters. Finally, the High Court has to decide

whether the custody is lawful.

24. The primary purpose of the writ of habeas corpus is to

secure the production of an individual before a Court or Judge.

Habeas corpus safeguards the liberty of the subject by providing

immediate relief from unlawful or unjustifiable detention, whether

in prison or private custody. This writ holds such sovereign and

transcendent authority that no privilege of power or position can

withstand it. It serves as a potent safeguard against arbitrary acts

not only by private individuals but also by the Executive, making it

the paramount protector of personal liberty.

25. The observations made in the Constitution Bench

decision of the Apex Court in Kanu Sanyal vs. District

Magistrate Darjeeling2 with regard to the nature and scope of a

writ of habeas corpus are extracted below.

"4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command

1973 INSC 165

addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice- immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody-together with the day and cause of his being taken and detained to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf".

The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes, "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end."

26. In Ram Narayan Singh v State of Delhi,3 the Apex

Court has observed that a writ of habeas corpus is with respect to

legality of detention at the time of return of rule and not to the date

of institution and that if on the date of return i.e. the return of the

rule, the detention is not illegal and is duly authorised by a

Competent Magistrate by remand orders then the writ of habeas

corpus will not lie. In this context, it would be apposite to

reproduce the relevant paragraph i.e. paragraph No. 4 which reads

thus :

"4. It has been held by this Court that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings..."

27. In Manubhai Ratilal Patel. vs State of Gujarat, 4 the

Apex Court in paragraph No.32 has observed as under :

"32. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of the order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation

(1953) 1 SCC 389

2012 INSC 438

could only have bearing on the action of the investigating agency.

The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B.Ramachandra Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial

order passed by the Magistrate remanding the accused to custody is valid in law."

28. In Saurabh Kumar v. Jailor, Koneila Jail & Anr5, the

Apex Court in paragraph Nos.21 and 22 observed as under :

"21. Two things are evident from the record : Firstly, the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody; Secondly, the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail.

22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody"

2014 INSC 502

29. In State of Maharashtra v. Tasneem Rizwan

Siddiquee6 the issue of whether a writ of habeas corpus can be

maintained for a person in police custody under a remand order by

the jurisdictional Magistrate during investigation has been

addressed by the Apex Court which is as follows:-

"10. 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 the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 : (2014) 5 SCC (Cri) 702 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 : (2013) 1 SCC (Cri) 475 . It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18- 3-2018/19-3-2018 and decided by the High Court on 21-3- 2018 [ Tasneem Rizwan Siddiquee v. State of Maharashtra, 2018 SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee 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 17-3-2018 and which police remand was to enure till 23-3-2018. 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

2018 INSC 783

custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued." (emphasis provided)

30. In Serious Fraud Investigation Office and Ors. Vs.

Rahul Modi and Ors. 7, the Apex Court held as follows:-

"(19) The law is thus clear that in habeas corpus proceedings a court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.

(21) The act of direction remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition."

31. As discussed supra, in the present case, the petitioner's

husband was produced before the learned Magistrate after

conducting medical examination. There is no complaint by the

husband of the writ petitioner to the learned Magistrate about his

illegal detention and ill-treatment/harassment. On the request made

by the police, custody was given to them. There is no challenge to

the said orders.

2019 INSC 408

32. It is the fundamental principle that a writ of habeas

corpus can only be issued in cases where the detention is unlawful.

Challenges to remand orders on substantive grounds must adhere to

statutory procedures, while instances of non-compliance may

warrant invocation of extraordinary jurisdiction. Generally, an

order of remand by a judicial officer, arising from a judicial

function, is not subject to challenge via a writ of Habeas Corpus.

Rather, individuals aggrieved by such orders may seek recourse

through other statutory remedies. However, instances of non-

compliance with mandatory provisions or a complete absence of

judicious consideration may warrant consideration for a writ of

Habeas Corpus, albeit in a challenge capacity.

33. It is relevant to note that in both the crimes viz:

Cr.No.309 of 2023 and 4 of 2024, it is the specific contention of

the Investigating Officers that they have produced the husband of

the petitioner before the concerned Magistrate after conducting

medical examination. They have also produced certificate. Learned

Magistrate enquired with the husband of the petitioner as to

harassment or assault, if any, in the hands of the police, but he has

not complained anything against any of them. There are specific

assertions to the said effect in the counters filed by respondents 2

and 4 in both the writ petitions. Even then, the petitioner did not

file any rejoinder adverting to the said contentions.

34. As discussed supra, this Court has to decide writ of

habeas corpus conducting summary proceedings basing on the

affidavits filed by the parties.

35. The petitioner filed these writ petitions without

contesting the order of the learned Magistrate. However, the

petitioner's husband was in judicial custody pursuant to an order

by the jurisdictional Magistrate. Custody was also given to the

police on the application filed by them.

36. Throughout the proceedings, the petitioner neither

challenged the judicial remand order nor made pleadings to the

said effect. The arrest of the petitioner's husband does not appear

prima facie illegal.