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2020 DIGILAW 875 (AP)

Makireddy Ramanamma v. State of Andhra Pradesh

2020-12-30

D.RAMESH, RAKESH KUMAR

body2020
ORDER : Rakesh Kumar, J. 1. The petitioner, wife of detenue, approached this Court by filing the present Writ Petition, under Article 226 of the Constitution of India, with a prayer to direct the respondents to produce her husband namely Makireddy Narasimha Murthy, aged about 61 years, before this Court, and set him free by declaring the action of respondent Nos. 4 and 5 i.e., the Station House Officer, Prathipadu Police Station, and Sri Sri K. Sudhakar, Sub-Inspector of Police, Prathipadu Police Station, East Godavari district, respectively, in searching the house of the petitioner and arresting her husband in violation of Sections 165, 100 and 50 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') and also in violation of Article 226 of the Constitution of India. The petitioner further prayed to direct the respondent Nos. 2 and 3 i.e., Director General of Police, State of Andhra Pradesh, and the Superintendent of Police, East Godavari District, respectively, to initiate action against the concerned official for indulging in the impugned illegal detention and searching the house of the petitioner. 2. In the Writ Petition it has been asserted that the husband of the petitioner, who is made an accused as abettor in FIR No. 270 of 2020, has filed a quash application, under Section 482 of Cr.P.C., vide Criminal Petition No. 4786 of 2020, before this Court challenging the FIR, wherein a single Bench of this Court by order, dated 22.10.2020, granted interim protection directing the respondent No. 4 not to take any coercive steps against the petitioner of quashing application i.e., husband of the present Writ Petitioner. The petitioner, in the Writ Petition, accepts that though order was passed on 22.10.2020, due to Dussehra vacation the order was not made ready by the Registry of this Court. A plea has been taken that some of the accused in the said FIR had filed separate Criminal Petitions and they were all granted interim orders by this Court and they had communicated the orders to respondent No. 4. A plea has been taken that some of the accused in the said FIR had filed separate Criminal Petitions and they were all granted interim orders by this Court and they had communicated the orders to respondent No. 4. On the preceding evening i.e., on 27.10.2020 at about 08:30 P.M., as alleged in the Writ Petition, while the interim order granted by this Court was subsisting, respondent No. 5, trespassed into the house of the petitioner along with ten (10) other Police officials and arrested her husband and without any warrant searched the entire house including washroom etc., for about one hour. After arresting, the husband of the petitioner was kept in Prathipadu Police Station. It has been reiterated that respondent No. 5, who was conscious of the fact that this Court had granted interim order against arrest of husband of the petitioner, however, excluding the order of this Court as well as in breach of Sections 50, 165 and 100 of the Cr.P.C. the house of the petitioner was searched and her husband was arrested. It has been alleged that no procedure was followed by the Police and much before production of the detenue before the Magistrate, the Police/respondents were intimated even through WhatsApp about the interim order passed by this Court in quashing application i.e., Criminal Petition No. 4786 of 2020. 3. In the case respondent No. 5 has filed an affidavit in his individual capacity and a plea has been taken that on the date of arrest, he was on bandobust duty and he simply stated that he was not connected with either arrest of the husband of the petitioner or production of the accused before the Magistrate. 4. In this Writ Petition, respondent No. 2, Director General of Police, himself has filed an affidavit and stated that none of the respondents/Police officials were aware about the order passed by this Court. Respondent No. 2 has further stated in its counter-affidavit that within 24 hours of the arrest of the husband of the petitioner, he was produced before the learned Magistrate on 28.10.2020 at about 02:30 P.M. and his detention was authorized by order of remand, passed by the learned Magistrate, and he was thereafter in judicial custody. Respondent No. 2 has further stated in its counter-affidavit that within 24 hours of the arrest of the husband of the petitioner, he was produced before the learned Magistrate on 28.10.2020 at about 02:30 P.M. and his detention was authorized by order of remand, passed by the learned Magistrate, and he was thereafter in judicial custody. Respondent No. 2 has also brought on record through its counter-affidavit that while the alleged detenue was in judicial custody, an application was filed under Section 482 of Cr.P.C. in this High Court with a prayer to pass an order by suspending order, dated 28.10.2020, passed by learned Judicial First Class Magistrate, Prathipadu, on the remand report in FIR No. 270 of 2020, whereby the alleged detenue was remanded to judicial custody. By order dated 06.11.2020, the said quashing application was disposed of with certain direction to the Court below and for release of the detenue on bail. The order dated 06.11.2020, passed in Criminal Petition No. 5041 of 2020, is reproduced herein below: "This petition is filed seeking suspension of the order dated 28.10.2020 of the learned Judicial Magistrate of First Class, Prathipadu, remanding the petitioner to judicial custody in Crime No. 270 of 2020 of Prathipadu Police Station. Adverting to the prayer sought by the petitioner, it requires mention of few peculiar facts relating to this petition and the incidents took place relating to this matter. The petitioner is accused No. 4 in Crime No. 270 of 2020 of Prathipadu Police Station. A case under Sections 409, 419, 420, 468, 471, 477-A, 109 r/w. Sec. 34 of IPC was registered against him along with other accused. The petitioner filed a petition under Section 482 Cr.P.C. before this Court seeking quash of the said F.I.R. Alongside the said petition, the petitioner has also filed a petition seeking stay of further proceedings pursuant to registration of the said F.I.R. This Court in Crl.P. No. 4786 of 2020 after hearing the learned Public Prosecutor for the State and while issuing notice to the 2nd respondent, who is the de facto complainant, directed the police not to take any coercive steps against the petitioner in Crime No. 270 of 2020 of Prathipadu Police Station, East Godavari District till 09.11.2020. The said order was passed by this Court on 22.10.2020. The said order was passed by this Court on 22.10.2020. Thereafter, police have arrested the petitioner on 27.10.2020 at 9.45 P.M. and he was produced before the learned Magistrate on the next day i.e. 28.10.2020 and the petitioner was remanded to judicial custody by the learned Magistrate. Learned counsel for the petitioner would submit that despite the order dated 22.10.2020 passed by this Court not to take any coercive steps which includes not to arrest the petitioner, police have deliberately arrested the petitioner in violation of the aforesaid order of this Court. Learned Public Prosecutor would submit that police have no knowledge of passing the aforesaid order passed by this Court directing them not to take any coercive steps and as such, they did not violate the said order of the Court. Although learned counsel for the petitioner has produced copies of the messages said to have been sent to the Investigating Officer informing him about passing of the aforesaid order by this Court, a perusal of the same shows that these messages relate to subsequent to the time of arrest. At this stage, there is no valid material before this Court to arrive at a conclusion that police got intimation of the order passed by this Court prior to the arrest of the petitioner at 9.45 P.M. on 27.10.2020. Therefore, the said aspect requires examination in the main Criminal Petition as to whether the police got knowledge of the aforesaid order passed by this Court and thereafter arrested the petitioner deliberately in violation of the order of the Court or not. However, the fact that remains established is that there was an order of this Court not to take any coercive steps. Despite passing of such order, the petitioner was arrested in this case. So, the very sanctity of the order passed by this Court has been lost. In the said circumstances, to give effect to the aforesaid order passed by this Court, appropriate order is required to be passed under Section 482 Cr.P.C. in exercise of the inherent powers of this Court, more particularly, as the very liberty of the petitioner is now being curtailed by way of the said arrest and remand despite the order of protection he got which is passed by this Court not to take any coercive steps. To undo the said injustice that is caused to him, this Court is of the considered view that an appropriate order is required to be passed to remedy the situation, till the real controversy involved in this case whether police have deliberately arrested the petitioner with the knowledge of passing of the aforesaid order by this Court or not. It is brought to the notice of this Court that the petitioner has already filed bail application before the trial Court and the same is being adjourned from time to time without being considered. Therefore, in the said facts and circumstances of the case, this Court is of the considered view that directing the learned Magistrate to immediately dispose of the said bail application filed by the petitioner by 4.00 P.M. tomorrow i.e. 07.11.2020 and release the petitioner on bail on execution of self bond with two sureties as per the amount fixed by the learned Magistrate would meet the ends of justice. This Court is of the considered view that in the peculiar facts and circumstances of the case, this appropriate order would meet the ends of justice." 5. Sri V.V. Satish, learned counsel for the writ petitioner, emphatically, argued that the respondent No. 4 Police officials were knowing well about the order passed by this Court in Criminal Petition No. 4786 of 2020, dated 22.10.2020. The said order is reproduced herein below: "Notice before admission. Learned Public Prosecutor takes notice to the 1st respondent/State. Issue notice to the 2nd respondent. Learned counsel for petitioner is permitted to take out personal notice to the 2nd respondent by Registered Post with Acknowledgment due and file proof of service into the Registry. Post along with Crl. P. No. 3962 of 2020. Police are directed not to take any coercive steps against the petitioner in Cr. No. 270 of 2020 of Prathipadu Police Station, East Godavari District till 09.11.2020." 6. Sri V.V. Satish, learned counsel for the petitioner, by way of referring to the aforesaid order, submits that the said order was passed after hearing learned Public Prosecutor, who had taken notice on behalf of the respondent No. 1. No. 270 of 2020 of Prathipadu Police Station, East Godavari District till 09.11.2020." 6. Sri V.V. Satish, learned counsel for the petitioner, by way of referring to the aforesaid order, submits that the said order was passed after hearing learned Public Prosecutor, who had taken notice on behalf of the respondent No. 1. According to learned counsel for the petitioner, since interim order directing the Police not to take coercive steps against the petitioner in Crime No. 270 of 2020 was passed in the presence of learned Public Prosecutor, there is no difficulty in coming to the conclusion that the order passed by this Court was in the knowledge of the respondent Police officials and, accordingly, even during the existence of such order, arrest of husband of the petitioner by the Police, who was in the teeth of interim order passed by this Court, and it is contrary to all settled principle of law. He highlights that while Police raided the house of the petitioner in the night, the Police was not having any search warrant or arrest warrant, no notice was given to the wife before the arrest of her husband and in complete illegal manner the husband of the petitioner was lifted by the Police. However, Sri V.V. Satish, learned counsel for the petitioner, has not disputed that the husband of the petitioner was one of the accused in Crime No. 270 of 2020. 7. During the time of hearing learned State counsel highlighted that whatever allegation has been made in the present Writ Petition can be subject matter in quash application i.e., Criminal Petition No. 4786 of 2020, in which interim order i.e., not to take any coercive steps against the petitioner, was passed. He has also referred to subsequent order, dated 06.11.2020, passed by a single Bench of this Court in I.A. No. 2 of 2020 in Criminal Petition No. 5041 of 2020. He has also argued that, in any event, the detenue after his arrest was produced before the learned Magistrate and he was remanded to judicial custody and it is not in dispute that presently the detenue is on bail on furnishing bail-bond. According to him, the present Writ Petition is not at all maintainable. 8. Besides hearing learned counsel for the parties, we have also perused materials available on record. According to him, the present Writ Petition is not at all maintainable. 8. Besides hearing learned counsel for the parties, we have also perused materials available on record. So far as the question of knowledge of the Police regarding interim order is concerned, it goes without saying that since stay order was passed in the presence of learned Public Prosecutor, the Police cannot take a defence that they were unaware of the interim order. Besides this, in the present Writ Petition, petitioner had brought on record certain WhatsApp messages to highlight that even before production of the detenue before the learned Magistrate, the respondent Police were in clear term informed regarding interim order passed by this Court. However, the Court is of the opinion that, in any event, the present dispute pertains to violation of order passed by the learned single Judge on 22.10.2020 in Criminal Petition No. 4786 of 2020. In terms of the order dated 06.11.2020, passed in I.A. No. 2 of 2020 in Criminal Petition No. 5041 of 2020 by a learned single Judge of this Court, the Court is of the opinion that no purpose would be served in proceeding with the present Writ Petition and Writ Petition can be disposed of granting liberty to the petitioner or her husband, who is accused in the case, to raise all those points in the quash application i.e., Criminal Petition No. 4786 of 2020. 9. Accordingly, with the above observation, the Writ Petition stands disposed of. No order as to costs. 10. As a sequel, miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.