TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 1317
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.... Kamrup (M) at Guwahati in connection with Fatasil Ambari P.S. Case No. 817/2021 and all its consequential remand orders as unconstitutional and illegal with adequate compensation. PETITIONER'S GRIEVANCES: 4. The petitioner contended that his father, who was the General Secretary of the Assam Cricket Association (For short 'ACA') has been detained since the Officer-in-Charge of Fatasil Ambari Police Station picked up him on 15.12.2021 at 10.30 p.m. from Naharkatiya under Tingkhong Sub-Division, District Dibrugarh, Assam and brought to the said Police Station at Guwahati. The petitioner contended that his father was brought to Guwahati without producing him before the nearest Magistrate or obtaining a transit remand or without any intimation to his family members in violation of Sections 50 and 50A of the Code of Criminal Procedure, 1973 (For short 'Cr.P.C.'). Thereafter, he was produced before the learned Sub-Divisional Judicial Magistrate (Sadar) [For short 'S.D.J.M. (S)'] No. 2, Kamrup (M) at Guwahati, on 17.12.2021 at 2.30 p.m., after a lapse of more than 24 hours in connection with Fatasil Ambari P.S. Case No. 817/2021 under Sections 120B/406/409/4....
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....rty to Guwahati co-operating in the preliminary investigation in connection with the aforesaid criminal case promising to provide vital documents in that regard which were stated to be available at his Guwahati residence. Accordingly, they reached Fatasil Ambari Police Station, Guwahati on 16.12.2021 at 10 a.m. After a thorough interrogation of him, having found prima facie incriminating materials in support of the allegations made in the F.I.R. against him, the petitioner's father was formally arrested on 16.12.2021 at 6 p.m. observing the formalities as required under Sections 50 and 57 Cr.P.C. and within 24 hours therefrom, on the following day, that is, on 17.12.2021 at 2.30 p.m., he was produced before the learned Judicial Magistrate. So far the police custody is concerned, the respondents averred that the learned Judicial Magistrate, after due consideration of the materials produced by the investigating officer, granted his police custody. Thus, the respondents have taken the firm stand that the petitioner's father's detention in connection with the aforenoted case was neither illegal nor in violation of the constitutional and procedural provisions in Cr.P.C. mean....
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....In this context, Mr. Bhuyan submitted that "police custody" does not mean custody after formal arrest of a person, but as soon as he comes into the hands of a police officer as held by the High Court of Andhra Pradesh in Mrs. Iqbal Kaur Kwatra-Vs- The Dist. General of Police, Rajasthan [reported in 1996 Cri.L.J. 2600(DB)]. Mr. Bhuyan, learned counsel, submitted that the investigating officer while detaining the petitioner's father did not apparently follow the guidelines laid by the Hon'ble Supreme court in D.K. Basu Vs. State of W.B. [reported in (1997) 1 SCC 416] which still stands as good law in the matter of arrest or detention of a person accused in a criminal case. 9. Mr. A.K. Bhuyan categorically submitted that it is the constitutional right of every detenue to know the reason of his detention or arrest by the police and there must be a reasonable ground for doing so. But, Mr. Bhuyan vehemently submitted that the detenue was neither informed about the cause of his detention when he was picked up from his residence at Tingkhong nor supplied him with copy of the complaint (F.I.R.) in utter violation of the directions contained in Sheela Barse Vs. State of Maharashtra ....
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....if investigation cannot be completed within 24 hours. According to Mr. Nath, Section 57 Cr.P.C. does not come into operation until a police officer makes an arrest of the accused person without warrant. 11. Explaining the legal position, Mr. Nath submitted that arrest is a species of detention or custody inasmuch as it is a formal act of detention under the authority of law which ensues compliance of the procedural formalities to be followed by the arresting authority under Chapter V of Cr.P.C. that deals with the subject matter of arrest. Mr. Nath pertinently submitted that per contra, every detention may not lead to arrest in cases for example in investigative detention, preventive detention, recording of statements of witnesses etc. in which case the detenue may be released after conclusion of enquiry made by police. 12. Mr. Nath also submitted that the term 'arrest' is not defined in the code of Criminal Procedure, but the Hon'ble Supreme Court, in Directorate of Enforcement Vs. Deepak Mahajan 1994(3) SCC 440 in paragraph Nos. 45 and 46 succinctly defined what is arrest and detention in custody. Referring to the proposition of law laid in Lalita Kumari Vs. State o....
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....24 hours. [BY LEARNED PUBLIC PROSECUTOR] 15. Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court, who appeared on request, submitted in short supporting the arguments advanced by Mr. D. Nath, learned Sr. Government Advocate appearing for the respondents. 16. I have carefully considered the above submissions made by the learned counsel of both sides. Apart from appreciating the rival affidavits filed in the instant petition, I have taken the aid of the case record and also the case diary as the same is maintained under Section 172 Cr.P.C. which requires every investigating officer to make entries on a day-to-day basis of the steps taken in course of any investigation, the place (s) he visited etc. to ascertain whether the detention of the petitioner's father is lawful or illegal. ISSUES: 17. Based on the rival contentions, basically the following issues have come up for consideration before this Court. 1) Whether 'picking up' of the detenue from his residence at Naharkatiya in Tingkhong Sub-Division under Dibrugarh district, Assam by the police of Fatasil Ambari Police Station at Guwahati on 15.12.2021 at 10.30 p.m., in connection with Fatasil Ambari P.S.....
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....ocedure". The constitutional safeguard of the individual liberty is rooted in Article 14 of the Constitution which envisages guarantee to every person "equality before law" and "equal protection of law". FIRST ISSUE: [NO VIOLATION OF RIGHTS] 20. With regard to the first issue, this Court finds it appropriate to extract Articles 14, 21 and 22 of the Constitution- "14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." "21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law." "22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) 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 ....
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....l be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the aforesaid period without the authority of a Magistrate. 22. The aforesaid constitutional safeguard embodied in Article 22(2) has been incorporated in Sections 56 and 57 Cr.P.C. Although Section 56 does not specify any definite time limit for production of the person so arrested without warrant before a Magistrate having jurisdiction or Officer-in-Charge of Police Station and provides only that it must be "without unnecessary delay". Section 57 Cr.P.C. and Article 22(2) have conjointly put a cap of 24 hours plus the time necessary for the journey. Therefore, the actual time necessary for the journey from the place of arrest to the Court of Magistrate is not to be counted in 24 hours, but the Magistrate before whom the arrestee is produced must be satisfied as to its reasonability based on the explanation given for such delay. 23. A reference may pertinently be made here to the observations made in Pragya Singh Thakur Vs. State of Maharashtra, ....
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....in AIR 1994 SC 1349 observed- "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion....
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....or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.P.C.." 27. Now, coming to the case in hand, on perusal of the rival contentions as stated above and the relevant case diary, it is revealed that on 15.12.2021, Inspector Debyajyoti Phukan of Fatasil Ambari P.S. along with his staff appeared before the Officer-in-Charge, Tingkhong P.S. and reported him about the case and then they along with the staff of the said Police Station proceeded to the residence of the detenue located at Bailung Bhati Gaon, where they reached at 11.25 a.m. Inspector Debyajyoti Phukan, having found the detenue at home, he initially informed him about his requirement for 'preliminary enquiry' in connection with the aforementioned Fatasil Ambari P.S. Case No. 817/2021 and for the relevant documents, but in reply informed that "all documents are kept at Guwahati house". The detenue expressed willingness "to go with police for Guwahati for production of relevant documents". Accordingly, they all left Tingkhong for Fatasil Ambari P.S. at Guwahati informing his son, Kowstova Buragohain, the petitioner herein, on 15.12.2021 at 11.30 p.m. They arrived at Fatasil Ambar....
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....liminary enquiry, which is lawful as justified by the Hon'ble Supreme Court in Joginder Kumar (supra) and Lalita Kumari (supra). 30. In view of the aforesaid position of law, it can be inferred that assuming that the detenue was picked up from his residence at Tingkhong, Dibrugarh for the purpose of interrogation or investigation by the police, it neither amounted to arrest nor detention, nor taking into custody as certainly enough there was no legal surveillance or restrictions on the movements of the detenue in any manner during the period of his voluntary co-operation in preliminary enquiry in the said case within the meaning and scope of Section 46 Cr.P.C.. 31. Therefore, in such a factual situation, where the detenue voluntarily accompanied with police to assist in investigation, there was no obligation on the part of the investigating police officer to ensure compliance of the obligations, provided under Sections 50, 50A and to obtain a transit remand under Section 167 Cr.P.C. in respect of the said detenue and as such, there was certainly no violation of the fundamental rights stipulated in the aforesaid Sections of Cr.P.C. or the mandate of Article 22(1) of the Consti....
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....ccused persons replied that he has engaged an advocate. Upon perusal of grounds of arrest enumerated in the forwarding report, I find that the arrest and detention is justified. Further the I.O. of the instant case has prayed for 7 days of police custody of the said accused person for the purpose of thorough investigation. Also seen the bail petition No. 897/2021 filed by the accused/petitioner Sri Pradip Buragohain praying to allow him to go on bail. Heard the Ld. Counsel for the accused. He vehemently raised objection against the arrest of the accused person on ground that I.O. had arrested the accused person flouting the procedure established by law. The Ld. Counsel submitted that the accused was detained by the I.O. on 15-12-2021, but he was not produced before Court within 24 hours of his detainment violating section 57 of the Cr.P.C.. The Ld. Counsel for the accused also submitted that the police have violated the procedure laid down by section 50 and 50(A) of the Cr.P.C.. The Ld. Counsel for the accused person further submitted that offence u/s. 409 IPC is not at all attracted in the instant case as the accused is not a public servant. The Ld. Counsel of the accused ....
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.... dismantles the merits of the case and entitles the accused to be released forthwith if there is substantial a legation against him, which needs to be investigated. In view of the allegations made against the accused person and the plea taken by him that he has been falsely implicated in the instant case due to political rivalry and vested interest of the complainant, a thorough and in-depth investigation will be beneficial to find the truth of the allegation made against the accused person. Hence, custodial interrogation of the accused person Sri Pradip Buragohain is essential for unearthing the truth or falsity of the allegation levelled against him. Therefore, police custody of the accused person Sri Pradip Boragohain is allowed for 2 (two) days. During the period of Police custody, the I/O is directed to ensure that the accused person do not go through any amount of custodial torture. Also the accused person shall be provided food, water and basic amenities during the period of police custody. Also, I/O shall ensure that the accused person is Medically examined by a registered Medical Practitioner every 24 hours and produce the said certificate at the time of production bef....
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....'ble Supreme Court issued the following directions (relevant) in respect of arrest and detention: "8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. 8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.P.C.. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. 8.2. Before a Magistrate authorises detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest eff....
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....ue was subjected to medical examination on 17.12.2021 after he was arrested on 16.12.2021 at 6 p.m. and before he was produced before the learned Judicial Magistrate at Guwahati on 17.12.2021 at 1.45 p.m. vide the medical examination report. Situated thus, this Court is of the opinion that the learned Judicial Magistrate while passing the impugned remand order of the detenue, dated 17.12.2021, implicitly followed the aforesaid directions of the Hon'ble Supreme Court contained in Arnesh Kumar (supra) vis-à-vis the legislative mandates of Article 22(2) of the Constitution read with Sections 41, 57 and 167 Cr.P.C. Therefore, it is apparent that the learned Judicial Magistrate having found no irregularity in anterior part of formal arrest and post arrest period of the detenue, felt no necessity to proceed against the investigating officer or take judicial notice of alleged unfounded irregularities/illegalities. CONCLUSION: 39. For the above stated reasons, the writ petition being devoid of merits, the same stands dismissed. SOME RELEVANT OBSERVATIONS: 40. Before parting with the instant petition, it may pertinently be pointed out that Code of Criminal Procedure is a comp....