1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.3.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P(MD)No.215 of 2011 Veerapandi .. Petitioner vs. 1.The Inspector General of Police, South Zone, Azhakarkoil Road, Madurai. 2.The Superintendent of Police, O/o.Superintendent of Police, Tirunelveli District. 3.The Inspector of Police, Valliyur Police Station, Valliyur, Tirunelveli District. 4.The Inspector of Police, S.S.Colony Police Station, Madurai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus directing the Respondents to produce the petitioner's wife, the detenue Nagakalyani, W/o.Veerapandi, aged about 38 years either in person or body before this Court and thereupon set her at liberty from the illegal detention of the third respondent forthwith. For petitioner : Mr.W.Peter Ramesh Kumar for M/s.R.Senthil Kumar For respondents : Mr.P.N.Pandidurai Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN,J) This petition has been filed by the husband to release his wife/the detenue, Nagakalyani, aged about 38 years. According to him, he is in the jewellery business and running a jewellery shop in https://hcservices.ecourts.gov.in/hcservices/ 2 the name and style of Thiruchendura Jewellery at Madurai. She has got two children, elder daughter is studying 12th Standard and the son is studying 6th Standard. His wife is a house wife. 2. When he was on tour on business purposes, on 15.3.2011 at 12.30 p.m.,(midnight), the third respondent along with 10 police men forcibly entered into his house without getting any prior permission to search his house and without following the due process of law and threatened his elder daughter viz., Rajalakshmi, and his son and took away the wife of the petitioner in a jeep. 3. Though the elder daughter opposed and objected to the action of the third respondent, it fell into deaf ears. This was informed to him by his elder daughter over phone. Thereafter, he received a phone call from his wife's cell and one police man by name Subbiah called the petitioner and told him that he should give 90 sovereigns of gold and a sum of Rs.1 lakh as cash to release the petitioner's wife from Valliyur Police Station. Subsequently, another phone call was received and the same police man told the petitioner that he should make arrangements for the said jewels and cash immediately. 4. The petitioner could understand that for some jewellery theft case, his wife had been taken and kept illegally by the third respondent for more than 24 hours without following the due process of law. He sent a telegram on 16.3.2011 to the respondent police officials but all were in vain. Therefore, the above petition has been filed with the above said prayer. 5. When the matter came up on 17.3.2011, learned Additional Public Prosecutor took notice for the respondents and this Court directed the respondents to produce the detenue today i.e. 18.3.2011. 6. Today, the learned Additional Public Prosecutor, on instructions, submitted that a case was registered in Crime No.96/2009 under Section 381 r/w 109 IPC by Valliyur Police Station against one Annal @ Esther Mary @ Stella and pursuant to the confession made by the said accused, the detenue/Nagakalyani, the wife of the petitioner herein was arrested and remanded to judicial custody and she is now in custody in Kokkurakulam Sub-Jail in Palayamkottai. Thus, according to him, there is no illegal detention and this Habeas Corpus Petition has to be dismissed and the detenue or the petitioner herein is at liberty to take appropriate proceedings available under law. 7. Learned counsel for the petitioner would submit that the way in which the respondent police have taken the petitioner's wife at 12.30 midnight on 15.3.2011 without even informing her about the grounds of arrest, that too, in the presence of two minor school going children, and when the husband was away on tour will have to be viewed seriously and that would certainly amount to illegal custody. Hence, he adds that the Habeas Corpus Petition can very well be maintained and in fact, this Court has previously held in such cases of illegal detention, the Court can consider granting interim bail or set the detenue at liberty in deserving cases. 8. In support of his contention, he relied on the following judgments reported in:- 1. AIR 1996 Supreme Court 1441 [State of Bihar v. Rambalak Singh] https://hcservices.ecourts.gov.in/hcservices/ 3 2. An unreported judgment of this Court dated 28.10.2009 made in H.C.P.(MD)No.719 of 2009 [G.Chitra Vs. The Superintendent of Police, Madurai Rural, Madurai and 3 others] 9. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor and we have also gone through the case diary and the judgments referred to by the learned counsel appearing for the petitioner. 10. From the case diary, we could find that a case was registered in Crime No.96/2009 under Section 381 r/w 109 IPC against one Esther Mary by Valliyur Police Station. It is a case, where the said accused had stolen gold jewels in the year 2009 and she is said to have sold the stolen jewels to the husband of the detenue herein. On the confession statement made by the said accused Esther Mary, the respondent Police had gone at 12.30 midnight on 15.3.2011 and took custody of the detenue. Thus, it is a case of stolen jewels having been sold by the said accused that too to the husband of the detenue herein. Only in that context, the respondent police said to have gone to the house of the detenue and as they did not find the petitioner, the husband of the detenue, they took his wife into custody. 11. The most disturbing fact is that, this Habeas Corpus Petition was filed before this Court on 16.3.2011; a telegram was also said to have sent to the respondent police on 16.3.2011 about the illegal detention; on 17.3.2011, when this petition was called for hearing before this Court, this Court directed the learned Additional Public Prosecutor to get instructions, but it is reported today i.e. 18.3.2011 that the detenue was remanded at 2.15 p.m., on 17.3.2011. 12. On the above facts, one has to come to an irresistible conclusion that on 17.3.2011, when the learned Additional Public Prosecutor took notice for the respondent police, in the same afternoon, the detenue was remanded to custody. It could be well said that the respondent police had the knowledge of this Habeas Corpus Petition, which was filed on the previous day of remand i.e. 16.3.2011. Therefore, the the respondent police have acted in unusual haste in remanding the detenue on 17.3.2011 at 2.15 p.m.,. Therefore, we are of the considered opinion that the detenue's custody from 15.3.2011 to 17.3.2011 cannot but be termed as only illegal. Further, we are highly dissatisfied with the way in which the respondent police have acted in taking the detenue/a house wife, a mother of two children from her house, that too at 12.30 p.m., midnight on 15.3.2011 when the husband was away. Besides that, this has been done on the basis of a confession made by an accused in a theft case. 13. Considering the above facts and circumstances and in the light of the judgments referred by the learned counsel appearing for the petitioner and in particular the judgment of a Division Bench of this Court dated 17.8.2010 made in HCP No.2108 of 2009 where this Court has held that in a matter of illegal custody the Court ha powers to set at liberty the detenue, we are of the considered view that the detenue's custody from 15.3.2011 to 17.3.2011 could be termed only as illegal custody. Therefore, we have no hesitation in https://hcservices.ecourts.gov.in/hcservices/ 4 directing the detenue to set at liberty forthwith. However, we make it clear that this order will not stand in the way of the investigation process in the case already registered against the detenue. 14. Accordingly, the detenue, Nagakalyani, W/o. Veerapandi, aged about 38 years, is directed to be set at liberty forthwith. The Habeas Corpus Petition is allowed. No costs. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Inspector General of Police, South Zone,Azhakarkoil Road, Madurai. 2.The Superintendent of Police, O/o.Superintendent of Police, Tirunelveli District. 3.The Inspector of Police, Valliyur Police Station, Valliyur, Tirunelveli District. 4.The Inspector of Police, S.S.Colony Police Station, Madurai. 5. The Officer Incharge, Kokkurakulam Sub Jail, Palayamkottai 6.The Joint Secretary to Government Public Law and Order, Fort St.George, Chennai - 9 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.R.Senthilkumar, Advocate Sr.No.7111 asvm ssk/06.04.2011 /9c-4p/- H.C.P.(MD)No.215 of 2011 18.03.2011 https://hcservices.ecourts.gov.in/hcservices/