CDR ‘leak’ case: SC allows Maharashtra govt appeal against release of lawyer -
CDR ‘leak’ case: SC allows Maharashtra govt appeal against release of lawyer
Posted 06 Sep 2018 10:18 AM

The Supreme Court on Wednesday allowed an appeal filed by the Maharashtra government against a Bombay High Court order of March 22 that ordered the release of advocate Rizwan Siddique in the alleged Thane Call Data Record (CDR) leak case. In its order, a bench, led by the Chief Justice of India Dipak Misra, observed that the Bombay High Court should not have ruled in the habeas corpus petition and that ‘disparaging and strong remarks’ by the high court against then DCP Abhishek Trimukhe be expunged.

Siddique was arrested by the Thane Police for allegedly obtaining CDRs of Bollywood actor Nawazuddin Siddiqui’s wife and was remanded in police custody till March 23. His wife had filed a habeas corpus in the Bombay High Court, claiming he had been wrongfully arrested without notice. On March 21, a Bombay High Court division bench of Justice S C Dharmadhikari and Justice P D Naik had ordered Siddiqui’s release and directed the Maharashtra Home Department to launch disciplinary proceedings against Deputy Commissioner of Police (Thane Crime Branch) Abhishek Trimukhe for unlawful detention.

The Maharashtra government had challenged the high court decision on two grounds. Firstly, that no writ of habeas corpus could be issued in respect of a person who was in police custody in connection with a criminal case under investigation. Secondly, the government contended, the high court should have refrained from making scathing observations against the police officials concerned and the said remarks should be expunged.

The apex court bench observed, “The question as to whether a writ of habeas corpus could be maintained… In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18th/19th March, 2018 …her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate…”

The bench observed, “Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during the investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued,” the bench observed.

Coming down heavily on the Thane Police, the Bombay High Court had in March observed that it acted in a “high-handed” manner and did not follow “due process of law”. The high court had said, “petitioner and her husband may initiate or file civil suit and criminal prosecution against this police officer for taking the law in his hands. Such prosecution shall continue uninfluenced by any proceedings that may be initiated against the petitioner’s husband for having violated the law.”

On the the scathing observations of the high court against then DCP (Thane crime), the apex court observed, “…said observations were wholly unwarranted as the concerned Deputy Commissioner of Police who was present in Court, could not have given concession to release Rizwan Alam Siddique in the teeth of a judicial order passed by the Magistrate directing police remand until 23rd March, 2018.”
The bench further observed, “Moreover, it is evident that the high court proceeded to make observations without giving any opportunity, whatsoever, to the concerned police officials to explain the factual position on affidavit… The high court, in our opinion, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent’s husband could be released if so directed by the court.”

The order went on to add, “As aforesaid, the DCP has had no other option but to make such a submission. For, he could not have voluntarily released the accused who was in police custody pursuant to a judicial order in force. The high court ought not to have made scathing observations even against the investigating officer without giving him an opportunity to offer his explanation on the affidavit.” The order added, “Accordingly, we have no hesitation in expunging the observations… of the impugned judgment against the concerned police officials in the facts of the present case.”

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