'Being A Premier Agency NIA Is Expected To Follow Legal Procedure': Telangana HC Orders Man’s Release Arrested Sans Following ‘DK Basu Guidelines'

The bench of Justice K. Lakshman and Justice K. Sujana made this observation as it concluded that while arresting the detune, the NIA had violated the procedure laid down under the law including the arrest guidelines laid down by the Apex Court in the case of DK Basu vs. State of West Bengal.

It may be noted that in the 1996 judgment delivered in the DK Basu case, the Top Court had issued elaborate guidelines to ensure that the power of arrest is not abused and to prevent custodial torture.

The case in brief

The bench was essentially dealing with a habeas corpus petition filed by the wife of a man who was picked up by plain-clothed people on June 18, 2022, from an examination hall in Siddipet (Telangana) without disclosing their identity and other particulars etc.

Thereafter, the petitioner-wife received a phone call from her husband on the intervening night of June 18 informing her that he was kept in the Mulugu Police Station and now he was being taken to Raipur (Chhattisgarh).

In her plea, a specific contention was raised by the petitioner that the police officials did not follow the legal requirements while arresting the husband of the petitioner as she was not served with the grounds of arrest and in the arrest memo and remand report, there was no mention of service of the same either on the petitioner or on her relatives.

Further, she also expressed an apprehension that her husband would be killed in a bogus encounter branding him as a Maoist thus, she prayed that he be produced before the High Court.

On the other hand, filing a counter affidavit in the matter, the NIA claimed that it arrested the detune (while probing a 2021 case) on the allegations of him working as a courier for the CPI (Maoist) organization and that he used to visit its cadres in the forest (Cora area) of CPI (Maoist).

It was further apprised to the bench that the NIA first issued a notice to him under Section 41-A of CrPC and once he appeared in the NIA Camp Office (Vijayawada, Andhra Pradesh) for inquiry, it was ascertained that he was involved in the crime and thereafter, he was arrested following due procedure of law.

High Court’s observations

Upon perusing the record in the matter, the Court noted no explanation was forthcoming from the NIA as to why a Section 41A CrPC notice was issued to the detenue despite the fact that the punishment prescribed for the alleged offences is more than 7 years.

The Court further noted in the NIA’s reply, there was no mention of the date, time and place of service of the said notice on the detenue.

The Court also noted that since it was proved that the detenue was taking exams on the day when it was claimed he appeared before the IO in the NIA Camp, therefore, the Court said that it was clear that the respondents created the said story including issuing a notice under Section - 41A of CrPC to the detenue and arrest memo etc, only to cover up their illegal action.

Against this backdrop, the Court concluded that respondents Nos.5 and 6/NIA officials had violated the entire procedure laid down under the law and also the requirements laid down by the Apex Court in D.K. Basu while apprehending the husband of the petitioner.

Hence, stressing that the right to live is a precious right guaranteed by the Constitution of India to a citizen, the Court declared the arrest of the husband of the petitioner to be in violation of Article - 21 of the Constitution of India and thus, the same was termed as illegal detention.

With this, the habeas corpus plea was found to be maintainable and the Superintendent, District Jail, Jagdalpur, was directed to release the detenue.

Further, respondents Nos.5 and 6 were also directed to strictly follow the procedure laid down under the law while conducting the investigation in the case.