IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN WPHC No.28/2019 BETWEEN SMT. POORNIMA SHASHIDHAR AGED 48 YEARS W/O SRI. V. SHASHIDHAR NOW R/AT NO.85/21/1 DODDABALLAPUR ROAD SRIRAMANAHALLI VILLAGE ARAKERE POST BENGALURU – 562 163 ... PETITIONER (BY SRI. G. R. MOHAN, ADVOCATE) AND 1. THE ADDITIONAL CHIEF SECRETARY HOME DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU – 560 001 2. THE STATION HOUSE OFFICER YELAHANKA UPA NAGARA POLICE YELAHANKA NEW TOWN BENGALURU – 560 064 3. THE STATION HOUSE OFFICER CENTRAL CRIME BRANCH COTTONPET MAIN ROAD BENGALURU – 560 053 4. SRI. V. SHASHIDHAR NOW R/AT NO.85/21/1 DODDABALLAPUR ROAD SRIRAMANAHALLI VILLAGE ARAKERE POST BENGALURU – 562 163 ... RESPONDENTS (BY SRI. SANDESH J. CHOUTA, ADDL.ADV.GENERAL A/W SRI. S. V. GIRI KUMAR, ADDL. GOVT. ADVOCATE) THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF HABEAS CORPUS, BY DIRECTING THE RESPONDENTS TO PRODUCE THE PETITIONER’S HUSBAND SHRI.V.SHASHIDHAR, THE 4TH RESPONDENT BEFORE THIS HON’BLE COUR,T WHOSE CUSTODY HAS BEEN OBTAINED UNDER FALSE FIR IN CRIME NO.19 OF 2019 AND RELEASE HIM FORTHWITH.
THIS WPHC COMING ON FOR ORDERS THIS DAY, K.N.PHANEENDRA J., MADE THE FOLLOWING:
ORDER In view of the urgency pleaded, the case is taken up on the Board, today.
2. Learned Additional Advocate General takes notice for the Respondent Nos. 1 to 3.
3. As the matter is taken up for hearing on merits, the office objections are over-ruled.
4. The petitioner is the wife of the 4th respondent-V. Shashidhar. It is alleged that, Respondent No.4 has been illegally and unlawfully taken to their custody by Respondent Nos.1 to 3, particularly, Respondent No.2-Police.
5. The learned counsel for the petitioner has submitted that, earlier a case has been registered against the 4th respondent in Crime No. 160/2016 for the offences punishable under Sections 124(A) r/w 109 and 120(B) of IPC with other offences. In the said case, Respondent No.4 was arrested and released on bail. Subsequently, it appears the 4th respondent has moved a writ petition under Section 482 Cr.P.C. for quashing of the said proceedings, wherein the High Court has granted an order of stay in Writ Petition No.6376/2018.
6. The learned counsel for the petitioner also contends that, having come to know about the filing of Writ Petition No.6376/2019 by respondent No.4, in order to wreck vengeance, the Police have again taken Respondent No.4 to their custody by registering a similar case in Crime No. 19/2019 for similar offences alleged to have been committed by him from 01.09.2018 to 11.02.2019. There is no dispute that, after registration of the case in Crime No.19/2019, Respondent No.4 was arrested and produced before the Jurisdictional Magistrate and the Jurisdictional Magistrate has remanded the accused to the Police custody and in the meantime, Respondent No.4 has also moved for bail before the jurisdictional Court and the same is set down today for consideration, as per the submissions made by the learned Addl. Advocate General.
7. Learned counsel for the petitioner has strenuously submitted that, similar allegations are made in subsequent FIR in Crime No. 19/2019. Further it is alleged in the FIR in Crime No. 19/2019 that, earlier the Court has granted bail in Crime No. 160/2016 by imposing certain conditions and those conditions have been violated; If Respondent No.4 has violated any conditions from 2018, the Respondent-Police/State would have moved the jurisdictional Court for cancellation of bail and there was no necessity for them to register another case for the purpose of taking Respondent No.4 into their custody. Therefore, the learned counsel for the petitioner has specifically contended that, the fundamental right of Respondent No.4 has been violated and therefore, this Court can very well exercise powers under Article 226 of the Constitution of India in order to protect the fundamental right of Respondent No.4. In this context, learned counsel for the petitioner has relied upon a Ruling of the Hon'ble Apex Court reported in 1992 Supp (1) SCC 496 between Additional Secretary, Government of India and Others Vs. Alka Subhash Gadia (Smt) and Another and drawn our attention to Para-12 where some guidelines are rendered by the Hon'ble Apex Court, wherein the guideline No (viii), states that,-
“(viii) In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded.”
7.1 Further, it is also worth here to refer Para-14 of the said decision, wherein the Hon'ble Apex Court after relying upon its earlier decision in Keshav Singh Vs. Speaker, Legislative Assembly (AIR 1965 SC 745) has further laid down the guidelines that, “14. ……. the fundamental right under Article 21 if it is contravened, it would plainly be the duty of the Court to examine the merits of the said contention and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. The Court held that, the power of the High Court under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions. Therefore, it cannot be contended that a citizen cannot move the High Court or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. …..”
[Emphasis supplied] 8. In the above context, the learned Addl.
Advocate General has also drawn our attention to the good-old decision of the Hon'ble Apex Court reported in 1971(3) SCC 118 between Talib Hussain and State of Jammu and Kashmir, wherein at Para-6, Hon'ble it has observed that,-
9. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that, in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.”
[Emphasis supplied] 10. In the above background, though it is alleged that, due to vengeance the second FIR in Crime No. 19/2019 has been registered against the detenue and non-filing of the petition for cancellation of bail, will debar the respondent No.2-Police from initiating fresh FIR, unless they have any new cause of action to arrest the petitioner. However, this Court should not venture upon to delve into whether registration of the second and subsequent FIR is legal or illegal. Apart from that, whether the procedure established in law has been followed by the Respondent No.2-Police in order to take the accused into their custody is only the question, that has to be looked into by this Court in this particular case. As rightly contended by the learned Addl. Advocate General, the violation of bail condition granted by the court in the earlier case raises two options sofar as the State is concerned. First one is, filing an application for cancellation of the bail and secondly, if any fresh offence is committed, the Police are not debarred from initiating any proceedings by registering a case and proceed with the matter against the accused in accordance with law. Therefore, Respondent No.4, in our opinion, has been arrested by the Police, on being following the procedure established by law and it is not that, detention is illegal by the State. What has to be looked into by the Court is, whether the procedure established under law has been followed by the Police or the State.
11. In the case on hand, regarding registration of a case, the provision under Section 154 of Cr.P.C. empowers the Respondent No.2-Police that, they can proceed with the investigation and file an appropriate report before the Court. Further they will get all powers to pursue the matter under the said provision. Once the case is registered under Section 154 of Cr.P.C., arrest of a person is discretionary to the Police, but not a bar. More over in this particular case, after arrest of the accused, he has been produced before the jurisdictional Magistrate and jurisdictional Magistrate has passed a judicial order remanding the accused to the Police custody. Therefore, if this habeas corpus petition is entertained and interfered with the proceedings, it would virtually amounts to interference with the judicial order passed by the jurisdictional Magistrate.
12. In the above facts and circumstances of this case, in our opinion, the petitioner has no remedy before this Court. But, the 4th respondent can get remedy by filing appropriate petition before the competent Court of Law and moreover, he has already filed a petition for grant of bail. Therefore, the 4th respondent can pursue the same in accordance with law and as such, the petition is liable to be dismissed.
Accordingly, the petition is dismissed.
Sd/- JUDGE KGR* Sd/- JUDGE