TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 2062
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.... facts:- (i) On 5 March 2023, a complaint was lodged against the Petitioner, his wife and other persons alleging cheating, forgery, and dishonestly obtaining an amount of Rs.3,37,30,000/-. The Anticipatory Bail Application filed by the Petitioner before this Court was rejected on 8 August 2023 and in the meanwhile chargesheet was filed by the Police. The challenge by the Petitioner to the rejection of anticipatory bail was dismissed by the Supreme Court on 25 August 2023. (ii) On 25 October 2024, a search was conducted of the Petitioner by the Investigating Officer. (iii) At around 1:00 p.m. on 25 October 2024, the Petitioner was taken into custody from Shivajinagar Metro Station and produced before the Shivajinagar Police Station. The Petitioner was thereafter immediately taken to Baramati and produced before the Baramati Police Station at around 5:07 p.m on the same day. (iv) At around 7:40 p.m. on 25 October 2024, the Petitioner was taken to the Government Medical College, Baramati for pre-arrest medical examination. The doctors at the Government Hospital referred the Petitioner to Sassoon Hospital, Pune. However, the Police decided to take th....
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....arious case laws in support of his contention that the time taken from 7:40 p.m. on 25 October 2024 till 26 October 2024 8:07 p.m. being the pre-arrest medical examination period cannot be excluded in calculating 24 hours. The Petitioner, therefore, prayed for issuance of writ of Habeas Corpus to declare the arrest illegal. 7. Learned senior counsel relied upon various decisions of the Supreme Court and High Courts in support of his submissions. Submissions of the learned APP:- 8. The learned APP for the State opposed the petition on two grounds namely, that the Petitioner's son was present, when the Petitioner was taken for pre-medical examination at Baramati and the Petitioner was in touch with his family members over the phone and, therefore, it cannot be said that the Petitioner was under arrest during pre-arrest medical examination till 9:00 p.m. 26 October 2024 when he was formally arrested. 9. The learned APP further submitted that the Petitioner's bail application was rejected where the issue of arrest being illegal was raised and rejected and, therefore, the Petitioner cannot now, by this petition, seek a relief to declare the arrest illegal. The learned AP....
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....d detention in certain cases ... ... ... (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 the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Section 57 of Cr. P.C. 57. Person arrested not to be detained more than 24 hours.- 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 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. (emphasis supplied) 17. The phrase "arrest" is neither defined under the Code of Criminal Procedure,1973, nor defined under the Indian Penal Code, 1860 (IPC) or the Constitution of India. We have not been shown any statutory definition or meaning of the word "arrest." 18. The word "ar....
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....89 to 5.20 pm of 21st July 1989- for 17 hours. Their arrest has been so recorded that their production before the Magistrate falls within 24 hours stipulated by Article 22(2) of the Constitution of India and section 57 of the Code of Criminal Procedure. The prosecution urges that after the "arrest" they were not detained beyond 24 hours. This submission is a distortion of the true meaning of the constitutional guarantee against detention without the sanction of judicial tribunal. They word "arrest", has not been defined in the Code of Criminal Procedure or in any other law. The true meaning needs to be understood. The word "arrest" is a term-of art. It starts with the arrester taking a person into his custody by action or words restraining him from moving anywhere beyond the arrester's control and it continues until the person so restrained is either released from custody or, having been brought before a Magistrate, is remanded in custody by the Magistrate is judicial Act. (Christie v Leachinsky), (1947) 1 All E. R. 667, (Holgate Mohammed v. Duke), (1934) 1 All E. R. 1054. Both quoted in WORDS AND PHRASES LEGALLY DEFINED Vol. 1. Third Edition page 113. In substance, "arrest" is....
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.... a person's liberty except for an offence is illegal. There is no authority in the Investigating Officers to detain a person for the purpose of interrogation or helping them in the enquiry." 22. The phrase "arrest" had also recently come up for consideration before the Coordinate Bench of this Court in the case of Hem Prabhakar Shah vs. State of Maharashtra,[ 2024 SCC OnLine Bom 3006], reiterating what is explained by us above. The Court, after analyzing the precedents on this issue, observed that the arrest amounts to detention of a person in contrast to the state of affairs when he is a free man. 23. In Niranjan Singh Vs. Prabhakar Rajaram Kharote [(1980) 2 SCC 559] Justice Krishna Iyer paraphrased the term "custody" in his inimitable style as below: - "No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semanitcs but its core meaning is that the law has taken control of the person. The equivocatory quibbling's and hide-and-seek niceties sometimes he....
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.... shall be detained in custody for a period exceeding 24 hours. Section 60-A provides that no arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest. 28. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 provides for protection against arrest and detention in certain cases. Article 22 (1) provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest. Article 22 (2) provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest. Article 22 (3) provides that nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing that the person is in custody for preventive detention. Article 22 (5) provides that any person detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall communicate to such person the grounds on which the order has been m....
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....ral diary details recorded that the Petitioner was taken into custody or control since the phrase "ताब्यात" is mentioned even in the general diary details at Baramati. Therefore, the time of arrest would begin from 25 October 2024 at 1:00 p.m. or at least from 5:07 p.m. on 25 October 2024. The phrase "ताब्यात" in English would mean "custody" has been resolved by the Co-ordinate Bench of this Court in the case of Hemang Jadhavji Shah Vs. State of Maharashtra & Ors. [Writ Petition 2989 of 2025 decided on 30 May 2025. authorities to conduct a pre-arrest medical examination before arresting a person] 33. The contention of the APP is that the time taken for the pre-arrest medical examination, from 7:40 p.m. on 25 October 2024 to 9:00 p.m. on 26 October 2024, should be excluded in computing the 24 hours. In our view, the learned APP's contention is required to be rejected. We have not been shown any statutory provision that provides for excluding such time for conducting a pre-arrest medical examination, nor have we been shown any statutory provision that requires police 34. In the absence of an....
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....can the said direction be obviated. One is when the person arrested is an "enemy alien" and the second when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that "no such person shall be detained in custody beyond the said period without the authority of a Magistrate. 38. The contention of the learned APP that the son of the Petitioner was with the Petitioner at the time of pre-arrest medical examination and, therefore, it cannot be said that the petitioner was under arrest is to be rejected. The discharge certificate issued by the hospital clearly shows that the petitioner was under the control and custody of the police authorities. The PSI, Mr. Yuvaraj Patil of Baramati Taluka Police Station signed the discharge certificate on 26 October 2024. The paper formalities of admission and discharge clearly show that the Petitioner was in the custody and control of the police authorities. Merely because the Petitioner's son happened to be in the hospital or the Petitioner was in touch with his family members over the cell phone would not mean that the Petitioner was not in the custody or control of the police aut....
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....e might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police. After the arrest of a person if he is not released on bail, an order for remand to judicial custody has to be made though it can be qualified by clarifying that the petitioner may continue to stay in the hospital after ascertaining such a requirement. For the said purpose, the Magistrate may also call for a report from the hospital where the arrestee has been admitted." 41. Based upon the pre-arrest medical examination theory, the legal and constitutional mandate of production of the arrested person before the Magistrate within 24 hours of his detention cannot be violated. Such action on the part of the police officer is likely to lead to unscrupulous tendencies, where after a person is arrested, he is not produced before the Magistrate till the hospital authorities declare him fit. This will give wrong signals to society and to the public at large. In our view, such a pre-arrest medical examinatio....
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....PP, that the time required for the transportation of the Accused to the Court of the concerned Magistrate in Mumbai and for the medical examination, will have to be excused in the light of Section 58 of the Bharatiya Nagarik Suraksha Sanhita. Section 58 reads as under: 58. Person arrested not to be detained more than twenty-four hours. - 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 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether having jurisdiction or not. 29. Even if the aforesaid submission is taken at its best, there has to be a reasonable link and proximity between the taking over of the custody of the Petitioner, his medical examination and production before the Magistrate. In short, the journey to be undertaken from the place of arrest to the Magistrate's Court, whether having jurisdiction or not, should be direct without being interjected by events not covered by....
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....order, the conditions mentioned in order dated 17 September 2022 in Crime No.736/2020 granting bail to the Petitioner in another case would apply as conditions herein mentioned for release of the Petitioner even in the present matter being Crime No.128 of 2024. The necessary conditions are as under:- ORDER 1] Petitioner/accused Hanumant Jagannath Nazirkar arrested in Crime No.128/2024 registered with Baramati Police Station be released on PR Bond of Rs. 1,00,000/- (Rs. One Lakh only) with one or more sureties of like amount. 2] The Petitioner shall not leave India without permission of this Court. 3] The Petitioner directly or indirectly shall not mortgage, pledge, transfer and rent out any movable or immovable property described in the charge-sheet as disproportionate to known source of the accused. 4] The Petitioner shall not tamper with the prosecution evidence nor shall pressurize the prosecution witnesses and shall attend the trial regularly. 5] The Petitioner shall attend the Office of Baramati Police Station as and when called through written notice. 48. During the course of the hearing, we brought to the notice of the learn....