IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.904 of 2010 SAHIN RAZA @ CHINTU . Versus STATE OF BIHAR & ORS . ----------- For the Petitioner: Shri Vindhya Keshari Kumar, Sr. Advocate Shri Radheshyam Kumar, Advocate For the Opposite Party: Mr. Kaushal Kishore Jha, Advocate 4 29. 09.2010 By filing this application the petitioner has invoked the writ of Habeas Corpus against his wrongful confinement and illegal arrest in connection with Naya Ram Nagar P.S. case No. 102 of 2010 on 18.07.2010 at 17.30 P.M. The confinement and arrest of the petitioner has been alleged to be an illegal confinement on the ground that on being arrested on 18.7.2010 at 7.30 P.M. he was produced before the Magistrate on 21.7.2010 at 3.45 P.M., in violation of the provisions under Article 22 (2) of the Constitution of India and Section 57 of the Code of Criminal Procedure. Article 22 of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, the grounds of arrest nor he shall be denied the right to consult a legal practitioner of his choice to be defended. Sub Clause (2) of Article 22 of the 2 Constitution of India provides that every person who is arrested and detained in custody, shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without authority of a Magistrate. Sub-Clause (2) of Article 22 of the Constitution affirms the provision contained in Section 57 of the Cr.P.C. extending right to a person arrested without warrant. Section 57 of the Code of Criminal Procedure provides that no police Officer shall detain in custody, a person arrested without warrant for a longer period, than under all the circumstances of the case, is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. In the background of these two Constitutional and statutory legal provisions, which are safeguard to the safety and liberty of a citizen, we have to examine the 3 case of the petitioner, in the given facts and circumstances of the case. One Manoj Kumar, the Driver of the Vechile bearing registration No. JH-15D-1854 recorded his statement before S.I. Amar Prasad Singh, SHO, Naya Ram Nagar Police Station stating that one young man aged about 22 to 25 years hired his vehicle, threw him away out of the vehicle and took it forcibly from him. On the basis of this statement First Information Report of Naya Ram Nagar P.S. case No. 102 of 2010 was instituted against unknown on 17.7.2010. On 18.7.2010, one Bolero Jeep bearing No. BR-9D-6006 was found in an abandoned condition on the road at Sujawalpur and the same was seized by preparing a seizure list by the Police. In the seizure list the recovery of vehicle has been shown from Pakki Sadak at Sujawalpur and not from the possession of the petitioner, still he was arrested and seizure list was handed over to him. Thereafter the alleged vehicle for which Naya Ram Nagar P.s. case No. 102 of 2010 has been instituted i.e. Sumo Vikta bearing no. JH-11D-4362 was also recovered and seized from a parking at Sujawalpur Pakki 4 Sadak. Though this recovery was also not from the possession of the petitioner, still a copy of seizure list was handed over to him on 18.7.2010 at 7.25. P.M. A so-called confessional statement of Sahin Raza @ Chintu, the petitioner was recorded on 18.7.2010 by the Officer In- charge of Naya Ram Nagar Police Station, in order to explain that all recoveries of the vehicles have been made on the basis of the confessional statement of the petitioner. However, the petitioner, who was arrested on 18.7.2010 at 5.30 P.M. was not produced before the Chief Judicial Magistrate till 3.45 P.M. of 21.7.2010. The First Information Report was produced before the Magistrate on 18.7.2010 but the petitioner was not produced before the Court, though he had been arrested without any warrant and as per the provisions under Section 57 of the Code of Criminal Procedure and Article 22(2) of the Constitution of India, he had to be produced before the Magistrate within 24 hours of his arrest exclusive of the time taken in journey from the place of arrest to the place, where the magistrate was stationed. Petitioner was arrested in Munger and there was no requirement of much time for his production before the Magistrate but without there 5 being any reason and any authority the petitioner was kept in illegal confinement for three days after his arrest. He was produced before the Chief Judicial Magistrate, Munger on 21.7.2010 at 3.45 P.M. Counsel for the petitioner submits, that when the petitioner filed his application informing the Judicial Magistrate, Munger about his illegal confinement by the Officer In-charge of Naya Ram Nagar Police station, immediately an explanation was called from him and a direction was also issued to the Superintendent of Police, Munger, to inquire about the arbitrary action of the Officer In-charge of Naya Ram Nagar Police Station. The Chief Judicial Magistrate, Munger also directed the Officer In- charge of Naya Ram Nagar Police station to explain the delay of 72 hours in production of the petitioner before the Magistrate. Since on account of this delay the confinement of the petitioner has become an illegal confinement, under the provisions of Section 167 of the Code of Criminal Procedure, as such an order should have been passed for immediate release of the petitioner. The present writ application has been filed by the petitioner, for the reason that once the Chief Judicial 6 Magistrate, Munger found the confinement of the petitioner as illegal confinement, he should have at once passed an order for release of the petitioner but the same was not done, instead the explanation was called for without passing any release order in favour of the petitioner. When the matter was taken by us, we immediately directed for release of the petitioner and also directed the Senior Superintendent of Police, Munger and Officer In-charge of Naya Ram Nagar Police Station for filing counter affidavit. In the counter affidavit filed on behalf of respondent nos. 2 and 2, it is stated that in course of investigation of Naya Ram Nagar P.S. case No. 102 of 2010, instituted on the basis of the Fardbeyan of Manoj Kumar, one Amarjeet Sah was apprehended along with Tata Sumo Victa vehicle bearing registration no. JH-15D- 1854. The apprehended person, namely, Amarjeet Sah confessed regarding his involvement in the crime and also that he is working as Driver of Sahin Raza @ Cintu (present petitioner), who is involved in looting of several vehicles. On the basis of his confessional statement several 7 vehicles were recovered, details of which has been given in paragraphs 7, 8 and 9 of the counter affidavit. Petitioner was arrested on 18.7.2010. The arrest of the petitioner on 18.7.2010 is admitted by the respondents but it is stated that since, the petitioner was being taken by the police party at several places for recovery of stolen vehicles, as such he could not be produced before the Chief Judicial Magistrate, Munger, earlier than 21.7.2010. Considering this admission in the counter affidavit, it is a proved case of illegal confinement of the petitioner in violation of the provisions under Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure. It is settled law that when a person is arrested under warrant, Section 76 of the Code of Criminal Procedure becomes applicable but when a person is arrested without warrant, as per section 57 of the Code of Criminal Procedure, the Police Officer can not keep such persons in custody for a period exceeding 24 hours, exclusive of time necessary for journey from the place of arrest to the Magistrate’s Court. The intention of the legislature behind this provision is to uphold and to restrict to the minimum, the curtailment of liberty of such person. 8 No person can be detained in custody without the authority of the Magistrate. In this view the provision under Section 57 of the Code of Criminal Procedure is mandatory. Similar safeguard has been provided under Article 22(2) of the Constitution of India. The language of provision under Article 22 of Sub Clause (1) and (2) lay down procedure to be followed when a person is arrested. The leading case of A.K.Gopalan Vs. State of Madras reported in AIR 1950 S.C. 27 is well known on this point, which has been followed by a catena of judgment by the High Court and Supreme Court.While disposing of the Article 22 Sub Clause (1) (2) of the Constitution Hon’ble Justice Das one of the members of the Constitution Bench has held as follows:- “Clauses (1) (2) of Article 22 lay down the procedure that has to be followed when a man is arrested. They ensure four things ;(a) right to be informed regarding grounds of arrest (b) right to consult, and to be defended by a legal practitioner of his choice, (c) right to be produced before a Magistrate within 24 hours, and (d) freedom from detention beyond the said period except by order of the Magistrate.” 9 Admittedly in the present case none of the four grounds which are as provided under Article 22(1) and (2) has been followed and fulfilled by the respondent authorities in arresting the petitioner and keeping him in confinement beyond the period for which legally he could have been kept prior to being produced before the Magistrate. The confinement of the petitioner was illegal, as such he has already been directed to be released. However, the Investigating Agency has liberty to investigate the case and if evidence is procured regarding involvement of the petitioner in crime, he can be rearrested or proceeded with, in accordance with law. This application is allowed. Akumar ( Mridula Mishra, J.) (Dharnidhar Jha,J.)