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CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 16141 OF 2023
Amar Shamrao Kolekar Occu : Business, Age : 38,R/o 2225, Room No. B-001, Mari Aai Krupa Building, Datta Nagar, Ghansoli, Navi Mumbai, Presently lodged at Thane Central Jail. Petitioner
2. The Superintendent of Jail
Central Jail, Thane. Respondents
Mr. Niranjan S.Mundargi a/w. Mr. Raviraj Paramane and Ms. Keral Mehta i/ b. Mr. Raviraj R. Paramane, for the Petitioner.
Mr. K. V. Saste, APP for the Respondents -State.
Mr. D. D. Tele, ACD, Vashi Division, is present.
JUDGMENT
1. Rule. Rule is made returnable forthwith. rrpillai 2023:BHC-AS:26500-DB
2. By consent of the parties, the petition is taken up for final disposal.
3. This petition is filed seeking a writ in the nature of habeas corpus directing the respondents to produce the petitioner who, according to the petitioner, is in illegal custody of respondent no. 2.
4. For considering the submissions made on behalf of the petitioner, it is necessary to note the following relevant dates: 21st July 2012: CR No. 00/2012 came to be registered with the Lohmarg Police Station, Thane, for the offences punishable under section 394 read with section 34 of the IPC. 5th August 2012: FIR on transfer was re-registered as CR No. I-347/2012 with Rabale Police Station. 17th September 2012: Petitioner was arrested in connection with CR No. I-347/2012. 25th September 2012: Petitioner was released on bail pursuant to an order passed by the learned JMFC, Vashi, in connection with CR No.I- 347/2012. 12th December 2012: Charge-sheet was filed in connection with CR No. I-347/2012 by invoking the provisions of the MCOC Act against the petitioner and two other accused. 27th December 2022: The other two accused in the said CR No. I- 347/2012 were convicted and sentenced after pleading guilty before the trial Court. 3rd March 2023: Non-bailable warrant was issued against the petitioner by the learned Special Judge, Thane. 23rd July 2023: The petitioner came to be arrested in connection with another case, being CR No. I-122/2023 registered with Thane Nagar Police Station for the alleged offence punishable under section 379 of the IPC. 27th July 2023: On an application made for a production warrant before the Special Court Thane, a production warrant was issued and the same was made returnable on 4th August 2023 in connection with CR No. I- 347/2012 for the offence punishable under section 394, 411, 34 of the IPC and sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act. 28th April 2023: The petitioner was ordered to be released on bail in connection with CR No. I-122/2023. Accordingly, a release memo was received by the jail authorities. 4th August 2023: The petitioner was produced before the learned Special Judge, Thane, pursuant to the production warrant. The petitioner had made an application for cancellation of the production warrant, however, the same was rejected by the learned Special Judge by recording that the petitioner is already apprehended. 8th August 2023: The petitioner was put to notice regarding filing of an an application seeking cancellation of his bail granted in the year 2012 in connection with CR No. I-347/2012.
5. In view of the petitioner not being released in spite of his application for bail being granted, the petitioner, on 30th August 2023, filed the present petition seeking a writ of habeas corpus, as according to the petitioner, he was in illegal custody of respondent no. 2.
6. On 5th September 2023, we heard the learned counsel for the petitioner and the petition was adjourned for today to enable the learned APP to take instructions. In the meantime, the learned Judicial Magistrate First Class Court No. 11, Belapur, before whom the application was filed by the State for cancellation of the petitioner’s bail, was pending was directed not to pass any order till the next date.
7. The learned counsel for the petitioner, by referring to the aforesaid dates and events, submitted that there were two CRs registered against the petitioner; however, he was granted bail in both CRs. Learned counsel further submitted that in CR of the year 2012, the petitioner was released on bail on 25th September 2012.
8. The learned counsel further submitted that in CR No.I-122/2023, though the petitioner was ordered to be released on bail by an order dated 28th July 2023, and a release memo was also received by the jail authorities, the petitioner was illegally detained by respondent no. 2. Learned counsel submitted that thereafter, the petitioner was produced before the learned Special Judge on 4th August 2023. On that date, an application was filed on behalf of the petitioner for cancellation of the production warrant. The application was rejected only by recording that the petitioner was apprehended. Learned counsel submitted that the learned Special Judge passed no further orders. Learned counsel submitted that though the production warrant was executed and the petitioner was produced before the learned Special Judge, the petitioner was not released by respondent no.2 and was illegally detained, inspite of there being a release memo received by the jail authority.
9. Learned counsel invited our attention to page nos. 55 and 56 of the additional compilation filed by him. He submitted that the case status of the petitioner’s case before the learned Special Judge recorded the absence of accused no.3 (petitioner) and thus issued a non-bailable warrant to the petitioner and notice was issued to the surety, and the next date of hearing assigned was 28th April 2023. He submitted that a non-bailable warrant was accordingly issued on 14th March 2023.
10. Learned counsel submitted that the said non-bailable warrant was never served upon the petitioner. Learned counsel submitted that in the meantime, there was an application filed before the trial Court for cancellation of the bail granted to the petitioner in the year 2012 in connection with CR No. I-347/2012. However, neither the non-bailable warrant was served upon the petitioner, nor was there any order passed cancelling the bail granted to the petitioner in the year 2012.
11. Learned counsel thus submitted that though the petitioner was already released on bail in connection with CR No. I-347/2012, and he was granted bail in connection with CR No. I-122/2023, respondent no. 2 illegally detained the petitioner. Learned counsel thus submitted that in view of the aforesaid, it is clear that the petitioner is in illegal custody of respondent NO. 2, and hence, a writ in the nature of habeas corpus be issued for producing the petitioner in this Court.
12. Learned APP did not dispute the aforesaid dates and events. However, he submitted that the charge sheet is already filed in connection with CR No. I-347/2012 by invoking the provisions of the MCOC Act against the petitioner. Learned APP submitted that when the petitioner was produced before the learned Special Judge, pursuant to the production warrant, an application dated 4th August 2023 was made before the learned Special Judge praying for permission to arrest the petitioner in connection with CR No. I- 347/2012, for investigating the case registered against the petitioner, after invocation of the MCOC Act.
13. Learned APP further submitted that a remand report dated 4th August 2023 was also submitted before the learned Special Judge, seeking police custody of the petitioner for investigation of the charges under the MCOC Act levelled against the petitioner in connection with CR No. I-347/2012.
14. Learned APP, on instructions of the investigating officer present in the Court today, submitted that though the aforesaid application, as well as remand report, was submitted before the learned Special Judge, the same were not taken on record and oral directions were issued by the learned Special Judge directing the police to apply for cancellation of the bail before the learned Magistrate who had granted bail to the petitioner in connection with CR No. I-347/2012. Learned APP has placed on record copies of the said application, as well as the remand report.
15. Learned APP submitted that though the petitioner is granted bail in connection with both the CRs, the police are entitled to arrest the petitioner and seek remand to police custody regarding investigating the charges levelled against the petitioner under the MCOC Act. Hence, the necessary application, as well as the remand report, was tendered before the learned Special Judge. However, since the application and the remand report were not taken on record, the police, as per the oral direction of the learned Special Judge, have already filed the necessary application for cancellation of bail granted to the petitioner in connection with CR No. I-347/2012 before the learned JMFC, Belapur.
16. Learned APP thus submitted that in view of the invocation of sections under the MCOC Act against the petitioner, the police are entitled to seek custody of the petitioner. Learned APP submitted that as the petitioner was taken in custody pursuant to the subsequent CR No. I-122/2023, the custody of the petitioner cannot be termed as illegal custody. The learned APP thus submitted that respondent no. 2 has not illegally detained the petitioner as sought to be contended in the present petition.
17. We have considered the submissions made by both the parties. A perusal of the aforesaid dates and events clearly shows that so far as the first FIR being CR No. I-347/2012 is concerned; there is no dispute that the petitioner was released on bail on 25th September 2012. It is further not disputed that thereafter, there was no order passed against the petitioner cancelling bail granted in favour of the petitioner or any order for taking the petitioner into custody. Neither were there any attempts made to arrest the petitioner pursuant to the addition of sections under the MCOC Act to the said CR. It is also not disputed that after the petitioner was arrested in connection with the subsequent CR No. I-122/2023, the petitioner is granted bail on 28th July 2023 and the release memo is also received by the jail authorities regarding the release of the petitioner in connection with CR No. I-122/2023.
18. We have perused the application for a production warrant and the order issuing production warrant. Perusal of the application for production warrant shows that though there is a reference made in the application that on 13th December 2012, an application was filed for cancellation of bail on the ground of invocation of the sections under the MCOC Act and that the petitioner was absconding after releasing him on bail, there is no reference as to any steps taken for arresting the petitioner and/or issuance of any proclamation. The application for issuance of a production warrant refers to the petitioner being in custody in connection with the second CR No.I- 122/2023 and, therefore, seeks production of the petitioner before the learned Special Judge, Thane. The production warrant directs the petitioner's production before the learned Special Judge, Thane on 4th August 2023 in connection with CR No. I-347/2012 for the offences punishable under sections 394, 411 and 34 of the Indian Penal Code and under sections 3(1) (ii), 3(3), 3(4) of the MCOC Act.
19. Learned Judge on the application filed by the petitioner for cancellation of production warrant has passed an order rejecting the application by stating that “Since, the accused is already apprehended thus, the application rejected”. Thus, perusal of the said order indicates that on the production of the petitioner before the learned Special Judge on 4th August 2023, except aforesaid order, there was no order passed by the learned Special Judge either for arrest of the petitioner or for remanding the petitioner to custody in connection with the MCOC case.
20. A perusal of the application filed for cancellation of bail indicates that notice is issued to the petitioner calling upon him as to why the bail should not be cancelled. We are informed that the application for cancellation of bail is still pending. Thus, it is clear that there is no order passed against the petitioner for continuing his police custody in either of the two CRs. Thus, there is no manner of doubt that the petitioner is illegally kept in custody after the jail authorities received the release memo on 28th July 2023 in connection with CR No. I-122/2023.
21. Despite the release order being served upon the jail authorities, the petitioner is wrongfully detained by respondent no. 2 without any lawful justification. Mere issuance of a production warrant will not give any authority to the police to detain the petitioner in spite of him being granted bail and the jail authorities being served with the release memo. Thus, neither the issuance of production warrant nor the filing of the application for cancellation of bail can be construed as an authorisation for detaining the petitioner.
22. So far the submission made by the learned APP that an application for permission to arrest and a remand report was tendered on 4th August 2023 before the learned Special Judge is concerned, though the copy of an application and remand report is shown to us, there is nothing produced in support of the said submission that it was tendered on that date. It is always a practice followed in all the courts in Maharashtra that when any application is tendered, the same is taken on record. If the application and remand report were actually tendered and were not taken on record, it was open for the prosecution to make an application for taking the same on record. However, it is not the case of the prosecution that any such application was made. If according to the prosecution such a oral request to take the application and remand report on record was made, then it was incumbent on the learned Special Judge to take the same on record and pass appropriate order, as he may deem so fit.
23. It is well-settled principle of law that no person can be illegally detained even for a single day in the absence of any authority with the police to detain the person even though there are criminal proceedings initiated and pending against the person. Once the petitioner was ordered to be released on bail, respondent no. 2 had no authority to detain the petitioner even for a single day. For what is at stake is the personal liberty of a citizen guaranteed to him by the Constitution and of which he cannot be deprived except for reasons laid down by the law. Thus, for the reasons stated aforesaid, the petition is allowed and we pass the following order: ORDER i) The Petition is allowed; ii) The petitioner – Amar Shamrao Kolekar, who is currently lodged in Thane Central Prison, be released forthwith. iii) The petitioner shall furnish his current address and mobile contact number to the concerned Investigating Officer (C.R. No. I- 347 of 2012) within 24 hours of his release; iv) The statement made by the learned counsel for the petitioner, on instructions, that the petitioner will contest his application seeking cancellation of bail and will not seek any adjournment before the concerned Court is accepted. v) The interim stay granted by this Court stands vacated. The learned Magistrate to decide the application seeking cancellation of the petitioner’s bail, on its own merits, in accordance with law, uninfluenced by the order passed today. All concerned to act on the authenticated copy of this order.