High Court Issues Contempt Notice To Haryana Police For Detaining Man Sans Following SC Guidelines On S. 41-A CrPC Notice, Orders His Release

While declaring a detention "illegal and unjustified", the Punjab & Haryana High Court has issued a contempt notice to the Haryana Police for violating the Supreme Court directions issued in the case of Satender Kumar Antil vs. Central Bureau of Investigation & Anr [2022 LiveLaw (SC) 577].

A Habeas Corpus petition was filed late at night on Saturday, stating that a son and mother, namely Mrigank Malhotra and Gunjan Malhotra, were illegally detained by Haryana Police on account of a business-related dispute between the company run by the detainees and the complainant. The notice for the same was issued by the High Court before sunrise on Sunday.

The Court noted that the notice under Section 41-A CrPC which claimed to have been issued by the Police and allegedly refused by the Detenue neither bore any signature of the witness, nor any efforts were made to serve it.

Justice Harkesh Manuja said "this Court has been unable to comprehend that as to why such an important statutory requirement was never complied with through these means, in case of refusal by the accused. Nothing has come on record to suggest that any effort was ever made to comply with statutory requirement of Section 41-A Cr.P.C., either through affixation or postal means as mandated by 'Satender Kumar Antil's case (supra). The manner in which the compliance of Section 41-A Cr.P.C. has been projected by respondent No.1 is evidently illegal and improbable."

The Court further directed the City SHO Jatinder Singh and the Investigating Officer ASI Ramesh Kumar for the relevant day, to show why contempt proceedings be not issued against them for having violated the directions issued in 'Satender Kumar Antil's case.

While noting that the detenue were booked under Sections 406, 420, 506 IPC at Ambala Police Station, Haryana, the Court said "the FIR shows that the same was primarily recorded with the allegations of a commercial dispute between the parties, though with vague allegations of threat to life of the complainant from certain top police officials or ministers (without giving any details or particulars of those police officers). In view thereof, in the offences under Sections 406, 420, 506 IPC, the maximum sentence being 7 years, the compliance of Section 41-A Cr.P.C. was mandatorily required to be followed in terms of 'Satender Kumar Antil's case (supra)."

Justice Manuja also found that the notice issued by the ASI "was never meant to be served upon the alleged detenue i.e. Subhash @ Mrigank Malhotra."

The Court rejected the stand of the state that the notice was offered to Malhotara but he refused to receive it. "A perusal of the notice shows that the same does not bear signatures of any witness; neither it has been mentioned in the notice that whether any effort was made to serve this notice upon i.e. Subhash @ Mrigank Malhotra through any alternate mode nor any attempt to associate any independent witness was made or it could not be fructified on account of refusal by the independent person," it said.

Maintainability Of Habeas Corpus Petition After Taking Into Police Custody Under An FIR

Furthermore, the Court rejected the contentions of the complainant that once the petitioner has already been detained against the FIR and is in police custody, the petition for Habeas Corpus does not lie.

"In the humble opinion of this Court, the aforesaid proposition of law may not apply to the facts and circumstances of the present case, as there have been apparent and prima facie non-compliance of Section 41-A Cr.P.C. besides the specific directions issued by the Apex Court in 'Satender Kumar Antil's case," the Court said.

It added that "the conduct of the respondents speaks volumes about their misdeeds, "In case of refusal by the petitioner to sign the notice served him under 41-A Cr.P.C., it should have been served upon the detenues through an alternate mode or by pasting the same at some conspicuous place. Only when the directions specified therein were not followed by the petitioner, he would have been subjected to arrest, but merely non-signing of the same could not have been a ground to arrest the petitioner.

The Court noted that even in the arrest memo prepared in compliance with section 41-B CrPC, no reasons specifying the requirement for the arrest of the petitioner have been recorded which is in gross violation of not only section 41-A CrPC but also in contravention of guidelines issued in Satender Kumar Antil's case.

It pointed out that even the magistrate while allowing the police custody in the present case, failed to take notice of these violations.

To buttress its opinion the Court referred to Gautam Navlakha vs. National Investigation Agency, [2021(3) R.C.R. (Criminal) 314], wherein the Apex Court held, "If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus."

Directions To Release The Detenue

Stating that notice was "never offered to or served upon the alleged detenue", the Court said that, "the detention of said detenue becomes illegal and unjustified and accordingly, he is directed to be released forthwith on interim bail subject to his furnishing of adequate bail bonds/ surety bonds to the satisfaction of CJM/ Duty Magistrate/ Area Magistrate concerned."

The Court also noted the contention of the State concerning the other detenue Gunjan Malhotra that "she was never arrested."

In the light of the above, the Court issued a contempt notice to the police officers and directed their presence on December 12.

Advocates Amitabh Tiwari, Abhimanyu Tiwari, Siddhant Saroha, Angad Pahel, Ishan Puri appeared  for the petitioners.

Krishan K. Chahal, Addl. A.G., Haryana with Viney Phogat, D.A.G., Haryana for the state.

 Avinit Avasthi, Advocate for respondent No.2 & 3/complainant.

Case Title: Daggar Malhotra v. State of Haryana & Ors.

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