Page No.# 1/14 GAHC010166472024 2025:GAU-AS:1586-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : W.P.(Crl.)/25/2024 ISHAN SAIKIA S/O- LATE BABUL SAIKIA, R/O- VILLAGE- JAMKHOLA, P.S- ULUONI, DIST- NAGAON, ASSAM, PIN-782001 VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR, GUWAHATI- 781006 2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007. 3:THE SUPERINTENDENT OF POLICE NAGAON ASSAM 4:FIROZ DOLEY OFFICER IN CHARGE OF ULUONI POLICE STATION DIST- NAGAON ASSA Advocate for the Petitioner : MR P KATAKI, MS. A LALA,MRS R BEGUM Advocate for the Respondent : GA, ASSAM, MR D J BORO (R-4),MR. J BARMAN(R-4) Page No.# 2/14 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 13.02.2025 (K.R. Surana, J) Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Government Advocate, appearing for respondents nos. 1, 2 and 3 and Mr. J.K. Goswami, learned counsel for respondent no. 4. 2) In brief, the case of the petitioner is that he is the second party in domestic violence proceedings, which is pending before the Court of Judicial Magistrate First Class, Nagaon which is registered as Case No. DV 377/2017, which is for enforcement/execution for recovery of arrear maintenance and payment of current maintenance, which was filed by his estranged wife. It would suffice to mention here that the said learned Court, by an order dated 29.05.2024, issued a non bailable warrant of arrest (NBWA for short) against the petitioner and the next date of proceedings was fixed on 29.06.2024 for payment and necessary orders. On 29.06.2024, as the NBWA issued against the petitioner was not returned and show cause reply was also not received, the case was next fixed on 30.07.2024. However, later on at 03:00 PM, the police report on NBWA as well as the show cause reply was filed before the said learned Court. However, on 29.06.2024 at around 03:45 PM, the petitioner was apprehended and kept in the lock-up of Uluoni Police Station, but he was not produced before the jurisdictional Court within 24 hours gross violation of the Page No.# 3/14 rights of the petitioner and he was produced before the Court of Judicial Magistrate First Class, Nagaon on 01.07.2024. On his production, the said learned Court passed a sentence against the petitioner to undergo simple imprisonment for 1 (one) month from 01.07.2024 to 30.07.2024. 3) On 02.07.2024 sister of the petitioner had submitted a complaint before the Superintendent of Police, Nagaon regarding the alleged incidence which happened on 29.06.2024. However, allegedly no action has been taken. Thereafter, on 03.07.2024, the mother of the petitioner had submitted petition No.1985/24, thereby praying for an enquiry into the matter, for drawing-up contempt proceedings and for initiating a disciplinary proceeding against the respondent no. 4. The said learned Court, by order dated 08.07.2024, directed the petitioner/engaged counsel to register a fresh complain/FIR against the accused persons, independent of the execution proceedings, as it involves thorough investigation. 4) Accordingly, alleging that the petitioner had suffered illegal detention for more than 24 hours without being produced before the nearest jurisdictional Magistrate, the petitioner has filed this writ petition under article 226 of the Constitution of India and has prayed for a direction to the respondents nos. 1, 2 and 3 to initiate disciplinary action against respondent no.4 for illegally detaining the petitioner from 29.06.2024 to 30.06.2024 and to also issue directions upon respondent no.4 to pay compensation of Rs.1,00,000/- (Rupees One lakh only) to the petitioner for illegally detaining him. 5) The learned counsel for the petitioner has submitted that the petitioner was picked up and arrested from his home on 29.06.2024 at 03:30 Page No.# 4/14 PM, and he was produced before the Magistrate on 01.07.2024 at about 10:30 AM. It is submitted that the respondents nos. 3 and 4 are aware that the petitioner has suffered illegal arrest and detention, have made an attempt to cover up the wilful disobedience of law by respondent no.4 by creating several G.D. Entries at 04:00 PM, 05:15 PM, 05:30 PM and 06:30 PM on 29.06.2024 and G.D. entry no.584 at 04:05 AM on 30.06.2024. It is submitted that a false story has been made by the respondent no.4 to project that two police personnel named in G.D. Entry no.565 of 04:00 PM of 29.06.2024 were passing information to the petitioner in advance in lieu of gratification, for which the warrant issued against the petitioner could not be executed because he would then abscond. It is submitted that the further false story of respondent no.4 was that when the petitioner was arrested, he had falsely disclosed his name to be Biplab Biswas and when he was disclose his identity, the petitioner projected that he has lost all his documents to establish his identity, but nonetheless, the petitioner was arrested, taken for medical examination at Jakhalabandha Hospital and kept at the Uluoni Police Station to interrogate the petitioner for his identity and to arrest the petitioner in execution of NBWA after establishing his identity. He further false story in the G.D. Entry no.5, 6 and 7 of 05:30 PM was to the effect that the family members were to be informed to bring relevant documents to establish the identity of the petitioner and top of verification the identity of the petitioner as Ishan Saikia, to inform the family members about his arrest. Thereafter, the G.D. Entry No.584 of 04:05 AM, the respondent no.4 recorded that the NBWA could not be executed and the petitioner was kept in custody even after mandatory period of 24 hours because inspite of giving information to the family members to bring identity of the petitioner, family Page No.# 5/14 members could not produce documents of the petitioner as Shri Biplab Biswas and thus, justified the illegal detention of the petitioner. Thereafter, by another G.D. Entry no.3 dated 01.07.2024 at 09:40 AM, the respondent no.4 again made a false entry to project that the counsel and the family members of the petitioner was creating disorderly situation and threatened the police staff on demanding release of the petitioner. It is submitted that another false G.D. Entry no.2 was made at 09:00 AM on 01.07.2024 to project that petitioner’s estranged wife came before the police station and identified that the petitioner was Ishan Saikia and not Biplab Biswas. Thereafter, at 10:30 AM on 01.07.2024, the petitioner was produced before the learned Magistrate. 6) The learned counsel for the petitioner has submitted that as per the G.D. Entry no.566 dated 29.06.2024, while arresting the petitioner his mobile was seized and the said mobile was again shown to be seized as per G.D. Entry no.568 dated 29.06.2024. Therefore, as the mobile phone of the petitioner was already in custody of police, the respondent no.4 could have called in the said mobile phone which would have identified the petitioner. Moreover, the respondent no.4 could have made enquiry in the neighbourhood of the petitioner’s house, from where he was arrested and everybody would have identified the petitioner. Therefore, it is submitted that not only the respondent no.4 illegally arrested the petitioner and illegally detained him for more than 24 hours, but by making false G.D. Entries, respondent no.4 has tried to justify the illegal detention of the petitioner for more than 24 hours since his arrest. 7) Per contra, the learned Senior Government Advocate as well as the counsel for respondent no.4 have relied on the affidavit-in-opposition filed Page No.# 6/14 by respondent no.3 and by respondent no.4 and they have submitted that although the petitioner was apprehended and brought to the police station on 29.06.2024, the petitioner did not admit that he was Ishan Saikia, but he kept on projecting that his name was Biplab Biswas and despite the family members being intimated, the proof of identity of the petitioner was not produced. Thereafter, only when the estranged wife of the petitioner appeared before the Uluoni Police Station at 09:00 AM, the police could ascertain the correct identity of the petitioner as Ishan Saikia, he was arrested and immediately produced before the concerned Court on 01.07.2024 and as per the order of the learned Judicial Magistrate First Class, Nagaon, the petitioner was sent to judicial custody. In the meanwhile steps were being taken to produce the petitioner before the Court in execution of the NBWA, some unknown miscreants along with one advocate tried to intervene and threatened the police personnel for which G.D. Entry no.3 dated 01.07.2024 was made at 09:40 AM. 8) Carefully perused the materials on record and also considered the submissions made on behalf of all sides. 9) In order to examine the matter, it would be relevant to refer to the background facts involved in this case. From the copy of order dated 29.05.2024, which is annexed to this writ petition as Annexure-I, it is noted that the learned Judicial Magistrate First Class, Nagaon, by an order dated 30.10.2019, passed in DV Case No. 377/2017, inter alia, directed the petitioner to pay to his estranged wife maintenance of Rs.5,000/- (Rupees Five thousand only) per month. The petitioner had challenged the said order before the Court of the learned Sessions Judge, Nagaon, which was registered as Crl. Appeal No. 34/2019. The said appeal was dismissed by an order dated 29.05.2021. As per Page No.# 7/14 the said order, the maintenance was due since 30.12.2020. On 04.05.2023, the estranged wife of the petitioner had filed petition no. 773/2023 before the Court of the learned Judicial Magistrate First Class, Nagaon to enforce the payment of maintenance. The said order dated 29.05.2024, further reveals that for committing default in making payment of arrear maintenance amount of Rs.1,12,000/- (Rupees One lakh twelve thousand only), the petitioner was sent to judicial custody since 05.05.2023. 10) The petitioner then approached this Court, and by filing an application, prayed to allow him to tender an initial sum of Rs.40,000/- (Rupees Forty thousand only), and on such deposit, the learned Court of Judicial Magistrate First Class, Nagaon would release the petitioner so that he can pay the balance amount. It may be stated that the case number before this Court is not disclosed in the said order dated 29.05.2024. However, this Court, by an order dated 15.05.2023, directed the petitioner to deposit at least Rs.60,000/- (Rupees Sixty thousand only) immediately to clear 50% of the outstanding amount and on such deposit, the learned Trial Court would release the petitioner before the expiry of custody period. The petitioner was also directed to pay the balance amount within a period of one month. It was also ordered that the said arrangement would be in addition to the monthly maintenance amount payable to the aggrieved. 11) However, the petitioner did not comply with the order passed by this Court. As on 03.08.2023, the aggrieved received a sum of Rs.35,000/- (Rupees Thirty five thousand only) in five instalments in the following manner, viz., Rs.3,000/- on 06.03.2023; Rs.5,000/- on 04.04.2023; Rs.Rs.7,000/- on 04.05.2023; Rs.20,000/- on 06.05.2023. In this writ petition, the petitioner has Page No.# 8/14 not disclosed the quantum of arrear maintenance due and payable by him on the date this writ petition was filed. 12) The said order dated 29.05.2024, further reveals that steps were taken on several occasions by his estranged wife for issuance of NBWA against the petitioner, which was never executed and returned with a report. Therefore, the Officer-in-Charge of the Uluoni P.S. was issued notice to show-cause when the petitioner was residing in the same address, why there was failure to execute the NBWA. Accordingly, a fresh NBWA was issued against the petitioner. Moreover, since the passing of the order dated 15.05.2023, by this Court, the outstanding maintenance amount was accruing and NBWA issued upon him failed to be duly executed, show-cause notice was also issued to the Officer-in- Charge of the concerned police station. The next date of the case was fixed on 29.06.2024 for payment and necessary order. 13) As per the order dated 29.06.2024, passed by the learned Trial/Executing Court, the NBWA was not returned and the petitioner was also absent without steps. However, as NBWA was not returned after execution and show-cause reply was also not received, the case was next posted on 30.07.2024. However, later on at about 3.00 pm on the same day, the police report on NBWA was returned and show-cause reply was also submitted. 14) In the police report dated 20.06.2024, on the NBWA which was returned without being executed, it was stated that on searching for the accused person, he was not found at home and his neighbours had informed that the petitioner had not returned home for a long time and nobody could say where he was for which the NBWA could not be executed. In the show-cause reply dated 29.06.2024, submitted before the learned Trial/ Executing Court by Page No.# 9/14 the respondent no.4, it was stated that NBWA’s received on 16.06.2024 and 22.06.2024, were sent to Sulung P.P. with proper instructions to the I/c. of Sulung P.P. to execute the same and when attempt was made on 27.06.2024 to arrest the petitioner, he was not found present at his warrant mentioned address. 15) Later on, when the respondent no. 4 took up the task of executing the NBWA, on apprehending the petitioner with his mobile phone, it was revealed that the petitioner was confidentially in touch was two Unarmed Branch Constables of Sulung P.P. One of the two constables was made online payment of Rs.2,000/- and the conversation of the petitioner with the other constable was found recorded in petitioner’s mobile. Accordingly, the respondent no.4 had reported to the Superintendent of Police to the effect that the said two constables, who were local residents of nearby Sulung had alerted the petitioner for which NBWA, issued on seven occasions between 2023 and June, 2024, could not be executed and therefore, he and the I/c had become culprits before the Court and prayed for initiating disciplinary action against the said two UBC constables. 16) As per the affidavit-in-opposition filed by the Superintendent of Police, Nagaon, disciplinary action was taken against the said two UBC constables, which has resulted in imposing of major punishment of stoppage of one increment with cumulative effect on one UBC constable and the disciplinary proceeding was then pending against the other UBC constable. 17) Thus, it is seen from the affidavit-in-opposition filed by the respondent no.3 that on 29.06.2024, after the petitioner was apprehended and brought to Uluoni P.S., the petitioner did not disclose his real identity. As per Page No.# 10/14 GDE No. 567 dated 29.06.2024, during his interrogation the petitioner did not admit that he was Ishan Saikia, but claimed to be Biplab Biswas. Therefore, the respondent no. 4 had asked the family members of the petitioner to produce document of petitioner’s identity and the family members of the petitioner were informed about his arrest. However, as per GDE No.2 dated 01.07.2024, only after the estranged wife of the petitioner identified the petitioner, he was formally arrested and without brooking any delay, the petitioner was produced before the Judicial Magistrate First Class, Nagaon, who had sent the petitioner to judicial custody. Moreover, only when preparations were being made to produce the petitioner before the Court, some unidentified persons purportedly alongwith an advocate and one journalist, went to the Uluoni P.S. and created a tense situation by allegedly threatening the police personnel to release the petitioner. The said incident is also recorded in GDE No. 3 dated 01.07.2024. 18) In light of the discussions above, the Court is of the considered opinion that the respondent no. 4 had not committed any wrong in not producing the petitioner before the Court of Judicial Magistrate First Class, Nagaon, without first being satisfied that the person who was brought to the police station is the petitioner. Two situations can happen. Firstly, if the respondent no. 4 had produced an undesired person in execution of NBWA, consequences would have followed. Secondly, having apprehended the petitioner, upon whom NBWA is directed, if respondent no.4 would have released the petitioner only because he has falsely disclosed that his name was Biplab Biswas, appropriate adverse consequences would have been attracted. Therefore, the action of the respondent no. 4, in not producing the petitioner within 24 hours of his arrest on 29.06.2024, is held to be justified. Page No.# 11/14 19) The petitioner’s conduct, as disclosed from the order dated 29.05.2024, passed by the learned Judicial Magistrate First Class, Nagaon is that the petitioner has suffered judicial custody since 04.05.2023, for not paying arrear maintenance to his estranged wife despite order of monthly maintenance passed by the said learned Court. On being released pursuant to the order passed by the learned Single Judge of this Court on 15.05.2023, the petitioner had wilfully defaulted in complying with the said order of this Court. 20) The worst possible conduct of the petitioner, as portrayed by the respondent no. 4 is that he was confidentially in contact with two UBC Constables attached to Sulung P.P. The respondent no. 4 has alleged that the petitioner had paid a sum of Rs.2,000/- online to one of the two constables. Moreover, he had allegedly recorded his conversation with the other UBC constable in his mobile, which is allegedly seized. Allegedly, the said two constables were alerting the petitioner and resultantly, the NBWA’s issued by the learned Trial Court between 2023 and June, 2024, could not be executed. As per the affidavit-in-opposition filed by the Superintendent of Police, Nagaon, disciplinary action was taken against the said two UBC constables, which has resulted in imposing of a major punishment of stoppage of one increment with cumulative effect to one UBC constable. Moreover, disciplinary proceeding was pending against the other UBC constable till the date of filing of the affidavit-in- opposition by the respondent no.3. 21) Therefore, for not disclosing his true identity when the petitioner was apprehended on 29.06.2024, the petitioner had compelled the respondent no. 4 to divert his attention and to spend valuable time to trace out the identity of the petitioner. Without ascertaining the identity of the petitioner, the Page No.# 12/14 respondent no.4 could not have produced the respondent before the concerned Trial/ Executing Court. Thus, the petitioner has triggered the delay in his production before the Trial/Executing Court and the delay is attributed to him alone. 22) Thus, under the unique facts and circumstances of the case, the non-production of the petitioner before the Court as per time provided under proviso to section 76 of the Criminal Procedure Code is found justified and therefore, the delay in his production on 01.07.2024, is found to be condonable because without ascertaining the petitioner’s correct identity, the respondent no. 4 was justified in not producing the petitioner before the concerned Court. However, the correct identity of the petitioner could only be ascertained after his estranged wife had identified him on 01.07.2024. 23) The learned counsel for the petitioner has submitted that the respondent no. 4 could have given a call to his seized mobile, which would have revealed his identity. We refrain from answering the said point because this aspect was not pleaded in the writ petition and therefore, the respondent no.4 had no opportunity to respond to the allegation that he could have given a call to the phone number of the petitioner. 24) The other point urged by the learned counsel for the petitioner is that the respondent no.4 could have made enquiry in the neighbourhood of the petitioner’s house, from where he was arrested, and everybody would have identified the petitioner. We are unable to accept the said contention because from the contents of the police report dated 20.06.2024, it appears that in the police report accompanying the NBWA, which was returned without being executed, it was stated that on searching for the accused person, i.e. the Page No.# 13/14 petitioner, he was not found at home and his neighbours had informed that the petitioner had not returned home for a long time and nobody could say where he was for which the NBWA could not be executed. Thus, it appears that the neighbours of the petitioner did not cooperate with the police when they went to the petitioner’s house to execute the NBWA and to arrest him. 25) Moreover, it is seen from the order dated 29.06.2024, passed by the Judicial Magistrate First Class, Nagaon (Annexure-VII to the writ petition) that the NBWA issued pursuant to order dated 29.05.2024, was not cancelled. Therefore, as per the provisions of sub-section (2) of section 70 of the Criminal Procedure Code, the NBWA would remain in force until it is cancelled by the Court which had issued it, or until it is executed. Therefore, the respondent no. 4 had the power and authority to arrest the petitioner on 29.06.2024, as is evident from the GDE No. 566 dated 29.06.2024, recorded at 05:15 pm., i.e. after order was passed by the said learned Court on 29.06.2024. 26) Therefore, in light of the discussions above, the petitioner has not been able to make out a case for issuance of any direction by the Court on the respondent nos. 1, 2 and 3 to initiate any disciplinary action against the respondent no.4. Rather, the Court is inclined to hold that under the unique facts and circumstances, as projected by the respondent nos. 3 and 4, the non- production of the petitioner before the jurisdictional Court and/or before the Court of Judicial Magistrate First Class, Nagaon within 24 (twenty four) hours is not without an cogent, plausible and acceptable explanation. Resultantly, the petitioner is found disentitled to any compensation. 27) This order is being passed under the facts and circumstances unique to this case. Therefore, this order shall not constitute to be a precedent Page No.# 14/14 for any other case. 28) Moreover, this order shall not cause prejudice to action, if any, already initiated and/or taken by the respondent nos. 1, 2 and 3 and/or any other competent authority on any police personnel pursuant to complaint(s), if any, made in the matter. 29) Thus, this writ petition stands dismissed. 30) The parties are left to bear their own cost. JUDGE JUDGE. Comparing Assistant