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Written by: Shivangi Arora (Intern)

Edited by: Anubhav Yadav (Content Head & Developer)

The Bombay High Court’s division bench comprised of Justice SS Shinde and Justice NJ Jamadar while hearing the Writ Petition of Habeas Corpus Case Title: Sadiquabee Mohd. Usman Shaikh v. State of Maharashtra and Ors filed under Article 226 of the Indian Constitution on 19 November 2021 upbraided the Police Officials for infringing the Constitutional and Legal Rights of the detainee. The court held that “Constitutional Rights cannot be sacrificed at the altar of flimsy explanations.”

Before heading towards the background of the case it is significant to know about Constitutional and Legal Rights. Constitutional Rights are those rights that are guaranteed to the citizens by the Constitution. Fundamental Rights are those rights exemplified under the constitution. They are themselves part of the Constitutional Rights. Legal Rights are those rights that are bestowed on the citizens by the virtue of various statutes passed by the legislature. In case of infringement of Constitutional Rights, the deceased can directly approach High Court or Apex Court while in case of Legal Rights the suit could be filed against the liable person. Amendment of the Constitutional Rights could only be done through Constitutional Amendments. On the other hand, Legal Rights could be amended by an ordinary statute.

BACKGROUND

The petitioner here is Sadiqua Shaikh (wife of the detainee). While putting allegations on the Police Officers she contended that-

  1. On July 26, 2021, the Deonar Police detained her husband for the offence of Theft, under Section 380 of the Indian Penal Code.
  2. He was produced before the Magistrate on July 28, i.e. not within the mandatory 24-hour window which is in clear violation of Article 22(2) of the Constitution.
  3. She also contended that no notice under Section 41A (power of the police officer to issue a notice to an accused to appear before him when a complaint is filed against him) was served.
  4. She also alleged that on 30 July, the Magistrate remanded the accused Judicial Custody. But the officers defied the order of the court and kept the accused in Police Custody till August 5.

The Police Officials on being confronted by the court held that they were unable to comply with the Magistrate’s order of transferring the accused to Judicial Custody due to the unavailability of COVID-19 testing kits and lack of Police Vehicles to enable transfer.

OBSERVATION

The court rejected the contentions of the Police by calling them vague. It held that the police wrongly detained the accused while defying the orders of the Magistrate. It was blatant on the part of the Police Officers to do so and was a bleak violation of the Fundamental Rights of the accused. The court also highlighted that merely reprimanding the officers for their fallacious behaviour would not alone be adequate to address the grievances. The remedy of providing compensation has now been ingrained in modern-day jurisprudence. Since the Constitutional Courts are empowered to award compensation as a relief to address the grievances, it will resort to the same in the given case. The court also mentioned that though money cannot recuperate the injury suffered by the citizen in all the cases, it remains the most effective and practical measure to redress the injury.

The Court hereby directed Maharashtra Government to pay compensation of Twenty-Thousand to the accused within four weeks along with inquiry against the police officers for their erroneous act.

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