Andhra Pradesh High Court - Amravati
Unknown vs High Court Of Andhra Pradesh on 3 October, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No: W.P. No.25830 of 2023
PROCEEDING SHEET
Sl. DATE ORDER OFFICE
No. NOTE
1 03.10.2023 CMR, J & TRR, J
This Writ Petition is filed for habeas corpus
declaring the action of the respondents in
detaining the detenu by name Sri Bandaru Satyanarayana Murthy, son of Appala Naidu, in their illegal custody since 11-30 p.m. on 01.10.2023 onwards, without any authority of law and without following the procedure prescribed under the Criminal Procedure Code, as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and, consequently, sought direction to the respondents to produce the detenu before the Court and to set him at liberty and further sought direction to respondent No.2 to initiate action against the erring officials.
When the Writ Petition came up for admission before this Court, we have heard learned counsel for the petitioner and Sri C.Suman, learned Government Pleader attached to the office of the learned Advocate General, for respondents.
2Sl. DATE ORDER OFFICE No. NOTE
Learned counsel for the petitioner would contend that the police have surrounded the house of the detenu from 11-30 p.m. on 01.10.2023 and prevented him from moving out of his house and, thereafter, he was taken into custody and thereafter when the petitioner, who is the brother of the detenu, moved house motion on 02.10.2023 that the police have abruptly served notice on the detenu under Section 41A of Cr.P.C. stating that a case in Crime No.354 of 2023 of Nagarampalem Police Station was registered against him for the offences punishable under Sections 153A, 354A, 504, 505, 506, 509, 499 of I.P.C. and Section 67 I.T.Act, at about 7-45 p.m. on 02.10.2023, directing him to appear before the police whenever required without mentioning any date in it. He would submit that in spite of issuing notice under Section 41A of Cr.P.C., in a case where the offences are punishable with less than 7 years imprisonment that they have deliberately arrested him at 7-45 p.m. on 02.10.2023 itself contrary to law and it amounts to illegal detention and confinement. Therefore, he would pray to direct the respondents to produce the detenu before this Court and then to set him at liberty.
3Sl. DATE ORDER OFFICE No. NOTE
Learned Government Pleader appearing for the respondents, on instructions, would submit that no notice was served on the detenu under Section 41A of Cr.P.C. in Crime No.354 of 2023 of Nagarampalem Police Station and he would submit that when the investigating officer served notice on the detenu under Section 41A of Cr.P.C. in Crime No.354 of 2023, the detenu refused to receive the said notice and, as such, the police have arrested him at 7-45 p.m. on 02.10.2023. He would further submit that the police would produce the detenu before the concerned Magistrate today to remand him to judicial custody. Learned Government Pleader has also produced a copy of the remand report before this Court, which is dated 03.10.2023 and he would contend that it is clearly stated in it that the detenu has refused to take notice issued under Section 41A of Cr.P.C. and, as such, he was arrested. We are at loss to understand as to how a copy of the remand report is produced in advance even before the accused is produced before the concerned Magistrate. To a pointed question, learned Government Pleader has clearly stated that the detenu is not yet produced before the concerned Magistrate and he is going to be produced before the Magistrate. When that 4 Sl. DATE ORDER OFFICE No. NOTE be the case, how the copy of the remand report is produced before this Court in advance, is the question to be answered by the respondents.
Although the learned Government Pleader would contend that the detenu has refused to take notice under Section 41A of Cr.P.C., learned counsel for the petitioner vehemently denied the same and he has produced a copy of the said notice served under Section 41A of Cr.P.C. on the detenu and he would contend that the signature of the detenu is clearly appearing on it, beneath the notice with date and time and it clearly indicates that the detenu has, in fact, received the notice served under Section 41A of Cr.P.C. on him and the respondents are deliberately misleading this Court stating that the detenu has refused to take notice served under Section 41A of Cr.P.C.
Learned Government Pleader would contend that the said signature is not that of the detenu.
Learned counsel for the petitioner would submit that the signature on the arrest notice issued under Section 51A of Cr.P.C. of the detenu and the signature on the notice issued under Section 41A of Cr.P.C. may be compared which are identical and it proves that it is the 5 Sl. DATE ORDER OFFICE No. NOTE signature of the detenu.
Thus, the detenu asserts that the notice under Section 41A of Cr.P.C. was served on him and despite issuance of such notice calling for his explanation in three days that he was illegally arrested. The respondent-police would deny the same and contend that he has refused to take the said notice and that signature which is now appearing on the notice under Section 41A of Cr.P.C. is not that of the detenu and that notice was not served on the detenu. So, the said controversy has to be resolved after a detailed counter is filed by the respondent- investigating officer.
The material which is now produced by the petitioner on behalf of the detenu prima facie shows that notice under Section 41A of Cr.P.C. was served on the detenu in crime No.354 of 2023 at 7-45 p.m. on 02.10.2023. He was also arrested at the same time at 7-45 p.m. on 02.10.2023 as per the arrest memo. If it is ultimately found that even after issuance of notice under Section 41A of Cr.P.C. in a case where the offences are punishable with less than 7 years imprisonment and that he was arrested simultaneously at the same time, the investigating officer has to face the legal 6 Sl. DATE ORDER OFFICE No. NOTE consequences for violating the procedure contemplated under law and the directions issued by the Apex Court in Arnesh Kumar's case. If it is found that the signature appearing on the notice issued under Section 41A of Cr.P.C. is that of the detenu, as the investigating officer went to the extent of denying the same, he has to face legal consequences in this regard also.
Therefore, list the matter on 05.10.2023 for filing counter.
As it is stated that the detenu is going to be produced before the concerned Court today seeking his remand in judicial custody, it is left open to the detenu to make his submissions in this regard relating to violation of the procedure contemplated under Section 41A of Cr.P.C. and the directions of the Apex Court in Arnesh Kumar's case before the concerned Magistrate and seek his legal remedy.
________ CMR,J ________ TRR,J Note: Issue cc today B/O Siva/Harin