2024 (9) TMI 1762 - HC - Indian Laws

Seeking production of detenues - period of apprehension to be considered for the purpose of fulfilling the requirement of producing the so-called apprehended person before the Judicial Magistrate within 24 hours - production of accused for the first remand before the nearest Judicial Magistrate or requirement to be presented only before the concerned notified Special Court. Whether the period of apprehension by the police authorities before the official arrest being shown is also to be considered for the purpose of fulfilling the requirement of producing the so-called apprehended person before the Judicial Magistrate within 24 hours? - HELD THAT - What is evident and an admitted fact is that accused Nos. 3 and 4 remained in police custody for a period of 38 hours before they were produced before the Judicial Magistrate under Section 57 of Cr.P.C. However the accused Nos. 1 2 and 6 though remained in police custody but were produced within 24-hour before the Judicial Magistrate. On looking into the provisions of Section 57 of Cr.P.C the very first line of the said provision refers to the term detention. It does not use the term from the time of arrest which further strengthens the case of the petitioner when they say that period of detention starts the moment they stand apprehended by the police as from that moment itself there is a restraint so far as personal liberty of the concerned person and there is also an arrest of his movement as he remains under confines of police personnel. Thus it would amount to a detention of a person right from the time he is apprehended by the police personnel. Thus in terms of the judgment of the Bombay High Court in the case of Ashak Hussain 1990 (1) TMI 308 - BOMBAY HIGH COURT the arrest of a person commences from the time restraint is placed on his liberty and not from the time of the arrest officially recorded by the arresting officers. Accordingly this Bench has no hesitation in reaching to the conclusion that question No. 1 as regards the commencement of the period of apprehension is concerned it is held that the period of apprehension is also to be taken into consideration for the purpose of calculating the period of 24 hours as is envisaged under Section 57 of Cr.P.C. - Accused Nos. 1 2 and 6 were produced before the Judicial Magistrate before completion of 24 hours. Therefore there is clear violation of the statutory requirement under Section 57 of Cr.P.C so far as accused Nos. 3 and 4 are concerned and they are accordingly liable to be given the benefit for the illegal act which the respondent-authorities have committed. Whether an accused under the Telangana Protection of Depositors of Financial Establishments Act 1996 (TSPDFE Act) can be produced for the first remand before the nearest Judicial Magistrate or he needs to be presented only before the concerned notified Special Court? - HELD THAT - Referring to Sub-Section (1) of Section 3 the learned Special Government Pleader contended that the special Court can also directly take cognizance of an offence under the TSPDFE Act without the accused being committed to it for trial by any of the jurisdictional Magistrate. This in other words according to the learned Special Government Pleader also means that the powers vested under Sub-Section (2) of Section 167 continues to remain with the Judicial Magistrate. This in other words according to the learned Special Government Pleader also means that the jurisdictional Magistrate after taking cognizance under Section 167 of Cr.P.C also can commit the accused for trial under Section 209 before the notified special Court for the proceedings under the TSPDFE Act. According to the learned Special Government Pleader Sub-Section (2) of Section 167 is amply clear that the said provision so far as production of a person before a Judicial Magistrate within 24 hours from the time of apprehension can also be before a Judicial Magistrate who may or may not have jurisdiction to try the case and as such there is no illegality on the part of the respondent- authorities in producing the detenues before the Judicial Magistrate and not having produced only before the notified special Court under the TSPDFE Act. The learned Special Government Pleader contended that the second question of law to be considered by this Court needs to be answered in negative holding that it was permissible under the TSPDFE Act also for the detenues to be produced so far as first remand is concerned before the nearest Judicial Magistrate instead of the notified special Court alone. There are no hesitation in reaching to the conclusion that TSPDFE Act has not in any manner ousted the applicability of the provisions of Cr.P.C. so far as the mandatory requirement which includes the fundamental right of any person who stands apprehended or arrested to be produced before the nearest Judicial Magistrate. If the said interpretation is not accepted or followed; the very purpose object and intention of the law makers at the first instance so far as the fundamental right guaranteed under Article 22(2) of the Constitution of India and secondly under the statute i.e. Section 167(1) and (2) of Cr.P.C. would render the two provisions redundant which in the opinion of this Court would give rise to far more complications and repercussions and which perhaps is also not the intention of the law makers in the course of enacting the TSPDFE Act. The issue is answered in the affirmative holding that the Judicial Magistrate does have the competency and jurisdiction and there does not seem to be any jurisdictional error so committed by the Judicial Magistrate while passing the impugned order dated 02.08.2024 which is under challenge in the present writ petition. The instant Habeas Corpus petition to the aforesaid extent so far as accused Nos. 3 and 4 stands allowed and so far as accused Nos. 1 2 and 6 are concerned stands dismissed.

Summary

The core legal questions considered in this judgment are twofold: (a) whether the period of police apprehension prior to the official arrest is to be included within the 24-hour period mandated for producing an apprehended person before a Judicial Magistrate under the Code of Criminal Procedure (Cr.P.C.); and (b) whether an accused under the Telangana Protection of Depositors of Financial Establishments Act, 1996 (TSPDFE Act) must be produced for the first remand exclusively before the notified Special Court constituted under the Act, or whether production before the nearest Judicial Magistrate is permissible.

Regarding the first issue, the legal framework primarily involves Article 22(2) of the Constitution of India, Section 57 and Section 167(1) of the Cr.P.C. Section 57 prohibits detention of an arrested person beyond 24 hours without Magistrate's order, excluding travel time, while Section 167(1) mandates that if investigation cannot be completed within 24 hours, the accused must be produced before the nearest Judicial Magistrate forthwith. The Court relied on authoritative precedents, including a Bombay High Court decision which held that arrest commences from the moment of restraint on personal liberty, not merely from the time of formal recording of arrest. The Court noted that any restraint on liberty, even if labeled as "detention for interrogation," amounts to arrest under law. Similarly, the Andhra Pradesh High Court has held that "police custody" includes any form of police surveillance or restriction on movement, and that the 24-hour period for producing the accused starts from the moment of custody, not from the official arrest memo.

The Court examined the factual matrix where accused Nos. 3 and 4 were apprehended at 10:00 A.M. on 31.07.2024 but their official arrest was shown only at 15:40 hours on 01.08.2024. They were produced before the Magistrate at 00:30 A.M. on 02.08.2024, amounting to 38 hours in police custody from apprehension. Accused Nos. 1, 2, and 6 were apprehended and arrested on 01.08.2024 and produced within 24 hours. The petitioner contended that the 24-hour period should run from the time of initial apprehension, not the official arrest, meaning accused Nos. 3 and 4 were produced beyond the permissible time. The respondents argued that the 24-hour period starts from the official arrest time.

The Court, applying the legal principles and precedents, held that the period of detention begins from the moment of apprehension or restraint on liberty, not from the formal arrest memo. The Court stated: "the arrest of a person commences from the time restraint is placed on his liberty and not from the time of the arrest officially recorded by the arresting officers." Therefore, the 24-hour period for producing the accused before the Magistrate includes the time of initial apprehension. Consequently, accused Nos. 3 and 4 were held to have been detained beyond the statutory limit, violating Article 22(2) of the Constitution and Section 57 of Cr.P.C., entitling them to relief. Accused Nos. 1, 2, and 6, produced within 24 hours, were not entitled to relief.

The second issue concerned the jurisdiction and competence of the Judicial Magistrate to entertain the first remand petition in cases under the TSPDFE Act, which mandates trial by a notified Special Court. The petitioner argued that the accused should be produced only before the Special Court constituted under Section 6 of the TSPDFE Act, and that production before the nearest Judicial Magistrate was without jurisdiction and illegal. The respondents contended that the procedural provisions of the Cr.P.C. continue to apply, including production before the nearest Judicial Magistrate under Section 167, and that the TSPDFE Act does not oust the Cr.P.C. provisions regarding arrest and remand.

The Court analyzed Sections 6, 13, and 14 of the TSPDFE Act alongside Sections 167(1) and (2) of the Cr.P.C. Section 6(1) and (2) of the TSPDFE Act provide for constitution of Special Courts with exclusive jurisdiction, but Section 13(1) uses the term "may" regarding the Special Court's cognizance, indicating discretionary power rather than mandatory exclusivity at the stage of first remand. Section 13(2) states that Cr.P.C. provisions shall apply "so far as may be" to proceedings under the TSPDFE Act. Section 167(2) Cr.P.C. empowers the Magistrate before whom the accused is produced to authorize detention even if he lacks jurisdiction to try the case, and to forward the accused to the appropriate Court.

The Court referred to Supreme Court precedents interpreting the words "may" and "shall" in statutory provisions, emphasizing that these terms are not invariably mandatory or directory but must be interpreted in light of legislative intent, purpose, and practical consequences. The Court held that the TSPDFE Act does not completely oust the applicability of Cr.P.C. provisions relating to arrest and remand. The fundamental right under Article 22(2) of the Constitution to be produced before the nearest Magistrate within 24 hours remains intact and cannot be circumvented by the special Act. The Court observed that requiring production only before the Special Court at the first remand stage would frustrate the purpose of timely judicial oversight and could cause undue hardship.

Therefore, the Court concluded that the Judicial Magistrate has jurisdiction and competency to entertain the first remand petition, even in cases under the TSPDFE Act. The Magistrate's jurisdiction to authorize detention and forward the accused to the Special Court is preserved under Section 167(2) Cr.P.C. The production before the nearest Judicial Magistrate is thus lawful and does not amount to jurisdictional error.

Significant holdings include the following verbatim legal reasoning:

"The arrest of a person commences from the time restraint is placed on his liberty and not from the time of the arrest officially recorded by the arresting officers."

"The TSPDFE Act has not in any manner ousted the applicability of the provisions of Cr.P.C. so far as the mandatory requirement which includes the fundamental right of any person who stands apprehended or arrested to be produced before the nearest Judicial Magistrate."

"The word 'may' used in Sub-Section (1) of Section 13 of the TSPDFE Act is a discretionary power and not a mandatory direction."

"The Judicial Magistrate does have the competency and jurisdiction and there does not seem to be any jurisdictional error so committed by the Judicial Magistrate while passing the impugned order dated 02.08.2024."

In conclusion, the Court held that the period for producing an apprehended person before the Magistrate under Section 57 Cr.P.C. commences from the moment of apprehension or restraint on liberty, not from the official arrest memo, and any detention beyond 24 hours without Magistrate's order violates constitutional and statutory safeguards. Accused Nos. 3 and 4, who were detained beyond 24 hours from apprehension, were entitled to release by writ of Habeas Corpus. Accused Nos. 1, 2, and 6, produced within 24 hours, were not entitled to relief. Further, the Court affirmed that the first remand can lawfully be granted by the nearest Judicial Magistrate, even in cases under the TSPDFE Act, which does not oust the procedural provisions of the Cr.P.C. at the initial stage of custody and remand. This preserves the constitutional guarantee of prompt judicial oversight and harmonizes the special Act with the general procedural law.