2022 (2) TMI 1317 - HC - Indian Laws

Seeking direction to forthwith set his father at liberty from illegal detention - petitioner contended that the detention and arrest of the detenue was in complete violation of his indefeasible rights guaranteed under Articles 14 21 22(1) and 22(2) of the Constitution and the procedural rights inter-alia in Sections 50 50A and 57 Cr.P.C. - validity of remand order - violation of rights or not - HELD THAT - It is noticed that Article 22(2) of the Constitution mandates that every person who is arrested and detained in custody shall 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. Chapter V of the Code of Criminal Procedure prescribes the complete procedure of arrest of persons. Section 41 Cr.P.C. vests power on a police officer to arrest any person who is either involved or suspected to be involved in cognizable and non-cognizable offences. In the case of a non-cognizable offence however the power to investigate such offence requires prior order of a competent Magistrate. A conjoint reading of Sections 50 and 50A Cr.P.C. reveals that once the police officer arrests a person it is obligatory on his part to inform the arrestee the full particulars of the grounds of arrest and inform about arrest and place where he is being held to his friends relatives or such other persons as may be disclosed or nominated by him - 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. 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 Constitution. The detenue voluntarily cooperated with the investigating police officer in the preliminary enquiry in connection with Fatasil Ambari P.S. Case No. 817/2021 and voluntarily moved with them to Guwahati from Naharkatiya Tingkhong residence assuring to deliver certain relevant documents which were available at his Guwahati residence and accordingly after they reached the said Police Station the police asked him for refreshment and bring the documents from his Guwahati residence - In the instant petition it is noticed that the detenue was put under arrest on 16.12.2021 at 6 p.m. observing necessary formalities as required under Sections 50 and 50A Cr.P.C. and produced him before the Court of learned Judicial Magistrate at Guwahati on the following day that is on 17.12.2021 at 1.45 p.m. that is within a period of 24 hours of his arrest. There is no confusion if one looks at the records that in anterior period to the detenue s formal arrest he was neither detained nor arrested within the implications of Section 41 or 41B Cr.P.C. Therefore it cannot be said that the detenue s right under Article 22(2) of the Constitution read with Sections 56 and 57 Cr.P.C. was violated. No illegality in remand order - HELD THAT - A perusal of the above impugned order it is revealed that the learned Judicial Magistrate on being satisfied that the detenue on his own engaged a counsel to defend his case and that his arrest and detention in connection with the said case was justified and further that the provisions contained in Sections 50 50A and 57 Cr.P.C. were duly complied with granted his police custody under Section 167(2) Cr.P.C. for 2(two) days subject to the guidelines - 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. Petition dismissed.

Summary

Issues Involved:
1. Whether the 'picking up' of the detenue was in violation of his rights under Articles 21 and 22 of the Constitution read with Sections 50, 50A Cr.P.C.?
2. Whether the production of the detenue before the Magistrate without a transit remand order was in violation of Sections 57, 60A Cr.P.C.?
3. Whether the impugned order of police remand of the detenue was a violation of Section 57 read with Section 167 Cr.P.C.?

Detailed Analysis:

First Issue: Violation of Rights under Articles 21 and 22 and Sections 50, 50A Cr.P.C.
The petitioner argued that the detenue was illegally detained without being produced before the nearest Magistrate or obtaining a transit remand, violating Sections 50 and 50A Cr.P.C. The respondents contended that the detenue voluntarily accompanied the police for investigation. The Court noted that the detenue was not formally arrested on 15.12.2021 but voluntarily cooperated with the investigation. The Court found no violation of Articles 21 and 22 of the Constitution or Sections 50 and 50A Cr.P.C. as the detenue was not under formal arrest and thus, the procedural requirements for arrest did not apply.

Second Issue: Production before Magistrate and Transit Remand
The petitioner claimed that the detenue was produced before the Magistrate without a transit remand order, violating Sections 57 and 60A Cr.P.C. The Court observed that the detenue was formally arrested on 16.12.2021 at 6 p.m. and produced before the Magistrate on 17.12.2021 at 1.45 p.m., within the 24-hour period required by law. The Court concluded that there was no violation of Sections 57 and 60A Cr.P.C. as the formal arrest and subsequent production were within the legal timeframe.

Third Issue: Legality of the Remand Order
The petitioner challenged the remand order dated 17.12.2021, alleging it was unconstitutional and illegal. The Court reviewed the remand order and found that the learned Judicial Magistrate had followed due process, including verifying that the detenue had legal representation and that the arrest and detention were justified. The Court noted that the remand order was in compliance with the directives of the Supreme Court in Arnesh Kumar vs. State of Bihar and relevant provisions of Cr.P.C. Therefore, the Court found no illegality in the remand order.

Conclusion:
The Court dismissed the writ petition, finding no merit in the claims of illegal detention and violations of constitutional and procedural rights. The Court emphasized the importance of transparency and fairness in police investigations and suggested that the State issue appropriate guidelines and checklists for investigating officers to ensure compliance with legal mandates.

Suggestions:
The Court recommended that the State, particularly the respondent No. 2, issue clear guidelines and checklists for investigating officers based on Supreme Court directives and relevant laws to ensure transparency and fairness in investigations. The Court also suggested incorporating legal awareness programs for the younger generation to foster good citizenship.