Gauhati High Court
Monwara Begum vs The State Of Assam And 4 Ors on 10 February, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010009132022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/2/2022
MONWARA BEGUM
W/O FAKRUL ISLAM R/O VILL. HAITORKHA P.O. PATHARKANDI, DIST.
KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
TO BE REP. BY THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM,
HOME DEPTT. DISPUR GUWAHATI-6
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
ASSAM
3:THE SUPERINTENDENT OF POLICE
KARIMGANJ
DIST. KARIMGANJ
ASSAM
4:THE OFFICER IN CHARGE KARIMGANJ SADAR POLICE STATION
DIST. AND P.O. KARIMGANJ
ASSAM
5:THE OFFICER IN CHARGE
PATHARKANDI POLICE STATION
P.O. PATHARKANDI
DIST. KARIMGANJ
ASSA
Advocate for the Petitioner : MR A R BHUYAN
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Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 10.02.2022 Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Govt. Advocate.
2. By filing this habeas corpus petition under Article 226 of the Constitution of India, the petitioner, Monowara Begum is seeking issuance of a writ in the nature of habeas corpus upon the respondents to produce her husband, namely, Fakrul Islam, who is missing from police custody since 11.01.2022.
3. The case projected by the petitioner is that her husband Fakrul Islam is an Assistant Teacher at Asimia Senior Madrassa and is presently also the In- Charge Superintendent of the said school. For reasons not disclosed to the petitioner or any other family members, the husband of the petitioner was detained by the police personnel of Patherkandi Sadar P.S. on 10.01.2022 and after his medical check-up at about 1.00 p.m., he was taken to Karimganj P.S., but his whereabouts is not known since morning of 11.01.2022 and he is missing from the police custody. It is projected that the police claims that the petitioner had escaped from their custody and it is alleged that the petitioner and her family members are being harassed by the police. The learned counsel for the petitioner has submitted that although the petitioner had sought for information from the police, but the petitioner was neither informed why her Page No.# 3/5 husband was being detained by the police nor any arrest memo was served to the petitioner or any other family members.
4. Notice of motion was issued by order dated 13.01.2022 and this Court had also directed the State authorities to ensure production of case diary as well as copy of the CCTV footage on the next date. Accordingly, the two case diaries and the purported CCTV footage was produced by the learned Senior Govt. Advocate on 20.01.2022. The Court issued a direction on 20.01.2022 to the State respondents to file their affidavit. The matter was again called on 01.02.2022 and the learned Senior Govt. Advocate had again produced the case diaries of Karimganj P.S. Case No. 31/2022 under Section 109/224 IPC and Patharkandi P.S. Case No. 10/2022 under Section 409 IPC as well as the purported CCTV footage of room stated to be a Sentry Room of Patharkandi P.S. and the call data record of the mobile phone of the petitioner. The last two items have been provided in a pen drive along with case diaries.
5. Accordingly, by order dated 01.02.2022, the matter was adjourned so as to enable the Court to peruse the same.
6. On perusal of the CCTV footage available in the pen drive, which is produced with the case diary, it is seen that there is a video showing three persons in a room with no handcuff and fetters, one of them is sleeping, one of them is standing and the other one is sitting on a bench and it is projected by the learned senior Govt. Advocate that the person sitting in the Bench is the husband of the petitioner, whereas the person standing is the attendant of the husband of the petitioner and the person sleeping is the Sentry on duty. The CCTV footage reveals that at 07:01:01 AM, the person claimed to be the attendant of the husband of the petitioner had walked out of the room, while Page No.# 4/5 the person purported to be the husband of the petitioner was still sitting in the bench. At 07.01.23 AM, the person purported to be the husband of the petitioner had walked away from the room. There is no CCTV footage of exit/entry point of the police station. Nonetheless, from the aforesaid CCTV footage, it appears that the two persons in civil dress are not under handcuff or any other fetters.
7. At this juncture, in the absence of CCTV footage of the entry/exit gate of the police station, the Court is unable to record a finding that the husband of the petitioner had voluntarily walked out of the said police station.
8. From the case diary, the learned Senior Govt. Advocate has submitted that the phone call data record discloses that that husband of the petitioner was speaking with the petitioner as well as an advocate, which appears in paragraph 7 of the affidavit-in-opposition filed by the Superintendent of Police, Karimganj (respondent no.3)
9. However, from the call data record, it appears that on 11.01.2022, the mobile calls were received or made at the following time, i.e. 04:40:39 AM, 04:40:40 AM, 04:40:40 AM, 04:40:40 AM, 07:09:49 AM, 07:11:27 AM, 07:12:37 AM, 07:23:54 AM, 07:23:55 AM, 07:23:56 AM, 07:24:25 AM, 07:25:19 AM and 07:25:31 AM. As per the statement made in the affidavit-in-opposition filed by the respondent no.3, it has been stated that for the purpose of tracing Fakrul Islam, call details of his mobile number 7002315947 were analysed and that he had made multiple calls from 7:09 AM to 07:25 AM to his wife Monowara Begum (9101892051) and advocate Salim Ahmed (7002511123). The said statement is found to be matching with the call data record.
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10. Therefore, although it prima facie appears that the husband of the petitioner has got out of the room where he was kept and that he was free to operate his mobile phone, nonetheless, in the absence of better particulars and/or CCTV footage of the husband of the petitioner actually leaving the police station compound, the Court is unable to form a conclusive opinion.
11. Therefore, the case diary of both the cases as produced by the learned Senior Govt. Advocate is returned along with the pen drive.
12. The respondents shall file a further affidavit giving better particulars to substantiate their claim that the husband of the petitioner has left the police station premises.
13. The learned counsel for the petitioner has prayed for providing him the CCTV footage. At this juncture, the Court is not inclined to share the CCTV footage with the learned counsel for the petitioner.
14. On the prayer made by the learned counsel for the petitioner, the petitioner is also permitted to file an additional-affidavit.
15. List on 28.02.2022.
JUDGE Comparing Assistant