Bombay High Court orders release of rape accused for procedural lapse

The woman alleged that Tole had sexual intercourse with her against her will. Representation pic

The Bombay High Court, declaring a man's arrest invalid, ordered the release of an accused in jail for nine months on charges of rape and for cheating a woman he promised marriage. Mazagaon resident Faisal Tole, 34, had filed a writ of habeas corpus petition in the HC seeking for his arrest by the Bhiwandi Taluka police station in March to be declared illegal. Tole alleged gross violations of his fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

Additionally, Tole sought a declaration to set aside the remand orders passed by the magistrate on March 21 and March 24, 2024, on the grounds that they are null and void due to non-compliance with Section 50 of the Code of Criminal Procedure, 1973. He argued that these violations rendered the remand orders invalid and sought a direction for his immediate release.

After hearing the petition on Friday, the HC ordered his release stating that his arrest was illegal. "He has been arrested without being given any written communication regarding the grounds for his arrest which is a mandate as per CrPC Section 50 and Article 22 of the Constitution of India," the HC said. According to the police sources, an FIR was registered at Meghwadi police station on March 13 which was later transferred to the Bhiwandi Taluka police (Zero FIR). Tole was arrested by the Bhiwandi Taluka police on March 21.

The 34-year-old complainant specifically alleged that when she got introduced and acquainted with Tole through a matrimonial website, she was under the impression that he was unmarried. The complainant alleged that on the pretext of marriage, Tole had sexual intercourse with her without her consent and against her will. It was also alleged that Tole expended an amount of Rs 1.84 lakh from the complainant's credit card, and thus, an offence punishable under IPC Section 420 is attracted.

Subsequently, Tole was arrested and produced before the magistrate and the remand application referred to the details of accusations on March 29 with a request for grant of police custody which was granted and then extended with the second remand application. The affidavit filed by the police sub-inspector attached to the Bhiwandi Taluka police station on September 6 asserts that Tole was informed about the grounds of his arrest. Consequently, the contention raised in the petition alleging a violation of his fundamental rights and non-compliance with Section 50 of the CrPC was denied.

According to the affidavit, Tole was arrested on March 21 at 1.50 am. To substantiate compliance with Section 50, a copy of the station diary had been annexed. However, upon reviewing its contents, it was found that while the affidavit claimed adherence to the directives of the Supreme Court during the petitioner's arrest - including notifying his wife and apprising him of his right to legal remedies - the document didn't clearly indicate that the grounds for his arrest were communicated to Tole who was sent to magisterial custody on March 24.

Failure to communicate the grounds of detention violates the legality of the arrest. Furthermore, even if a charge sheet is filed upon completion of the investigation, it does not rectify the illegality of an arrest made without compliance with statutory and constitutional safeguards.

Advocate Speak

Speaking with mid-day, Advocate Ali Kaashif Khan Deshmukh said, "Tole was arrested in March 2024 by the Bhiwandi police on the complaint of a woman who was having an affair with him and accused him of rape and cheating. His two bail applications before the sessions court at Bhiwandi were rejected. Subsequently, Adv. Snigdha Khandelwal and I filed the petition on his behalf before the HC to declare his arrest illegal." The high court bench, presided by Justice Bharati Dangre and Justice Manjusha Deshpande, ordered Tole's release on November 26, declaring his arrest illegal and in gross violation of the law.