1. Heard. The argument of Mr. Merchant, learned counsel appearing for the petitioner, is that this petition is maintainable in the form in which it is presented. This is a petition seeking issuance of Writ of Habeas Corpus to produce the husband of the petitioner, who is in detention.
2. The detention is termed as illegal by Mr. Merchant on the ground that Section 41-A of Code of Criminal Procedure, 1973 (‘Cr.P.C.’) inserted by Act No. 5 of 2009 with effect from 1 November 2010 and latter on substituted by Act No. 41 of 2010, contemplates notice of appearance before the police officer.
3. Since the petitioner asserts non-compliance with this provision, we deem it appropriate to reproduce it at this stage itself:
“41-A.- Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”
4. Mr. Merchant would submit that once this notice is issued, then, in terms of sub-section (1), the police officer was satisfied that the arrest of the petitioner's husband is not required and that the matter falls under the provisions of sub-section (1) of Section 41. He, therefore, was pleased to issue a notice directing the petitioner's husband to appear before him at such place as is specified in the notice.
5. The factual argument is that this notice is dated 16 March 2018 and it informs the husband of the petitioner to appear before the officer signing this notice on 17 March 2018. Mr. Merchant would submit that sub-section 2 of Section 41-A contemplates issuance of such notice but such phrase would have to be construed as “service or execution of notice”, else sub-section 1 would be rendered otiose. Therefore, until the person fails to comply with the terms of notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by the competent Court in this behalf, unable to arrest him for the offence mentioned in the notice. If there was compliance with the notice by the petitioner's husband, then, no question arises, according to Mr. Merchant, of presentation of such petition, but it is the respondents' assertion that when they sought to serve this notice on the petitioner's husband, he refused. That is how the panchanama is drawn.
6. Since Mr. Merchant says and on the basis of the pleadings in the petition, that there was a panchanama drawn and a copy of which is at pages 41 and 42 of the paper book, we have carefully perused it. It is in Marathi.
7. The whole panchanama has been perused with the assistance of Mr. Yagnik, learned APP, who with all his persuasive ability, could not find any sentence therein to the effect that the petitioner's husband refused to accept this notice when it was served on him at his place of work/his office. In these circumstances and particularly when the notice at page 42 also contains below the signatures of panchas and the senior police inspector, the signature of the accused, then, whether it is a signature acknowledging the notice and it's receipt or is it asserting, as is now stated across the bar by Mr. Yagnik, his refusal. Once such a statement is absent in the panchanama, then, we prima facie find it very difficult to agree with Mr. Yagnik.
8. However, Mr. Yagnik prays for time to produce the contemporaneous record, which according to him, would indicate that the noticee/husband of the petitioner refused to accept the notice referable to and styled as one under sub-section (1) of Section 41-A of Cr.P.C. On a query as to where is the original record or the contemporaneous record, the answer of Mr. Yagnik is that today in the on-going legislative assembly session, there is a query and which has to be answered by the concerned Minister and he requires the original documents so also officer's presence in the legislature secretariat. That is how the whole record has been taken to the legislative assembly secretariat. Mr. Yagnik, therefore, seeks time till tomorrow, which is 21 March 2018 at 11.00 a.m. We post this matter tomorrow, 21 March 2018 at 11.00 a.m. only to enable Mr. Yagnik to produce such record and answer the queries of the Court; else, all the consequences in law shall follow.
9. This opportunity is granted to Mr. Yagnik only because the document at pages 41 and 42 denotes that not only the petitioner's husband was present at his office but he and his staff handed over the articles and details of his e-mail identity, mobile and related information. The panchanama records that preparation of the same had commenced at 20.10 hours and ended at 22.10 hours on 16 March 2018.
10. Stand over to 21 March 2018 at 11.00 a.m.