Constitutional Mandate Cannot Be Frustrated By Subterfuges: Bombay High Court Declares Arrest Illegal For Failure To Produce Accused Within 24 Hours

A Division Bench of Justice M.S. Sonak and Justice Jitendra Jain observed, “The provisions of the law and judicial precedents on the subject indicate that the only period that could be excluded for computing the 24 hours limit within which the arrested person must be produced before the nearest Magistrate is the time taken for the journey from the place of arrest to the Court of the Magistrate. This Constitutional mandate cannot be frustrated or whittled by subterfuges.”

The Court added, “In the present case, the moment the Petitioner was taken into custody on 25 October 2024 at 1.00 p.m. or at least at 5.07 p.m., the period of arrest begins and therefore, production before the Magistrate on 27 October 2024 at 12.20 p.m. would violate Article 22(2) and Section 57 CrPC.”

Senior Advocate Manoj Mohite appeared for the Petitioner, while Additional Public Prosecutor S. V. Gavand represented the Respondent.

Brief Facts

The Petitioner, a 58-year-old retired Government officer, was accused of cheating and forgery amounting to Rs. 3.37 crores in connection with a tender process. An FIR under Sections 420, 467, 468, 471, and 34 IPC was registered against him. His anticipatory bail application was rejected by the Sessions Court and the Bombay High Court, with the Supreme Court subsequently dismissing his SLP.

The Petitioner was taken into custody and subsequently transferred to a different police station. That night, instead of being produced before a Magistrate, he was taken to the hospital and admitted, allegedly for blood pressure and anxiety. The formal arrest was recorded only the following night. He was finally produced before the Magistrate after more than 43 hours of being first taken into custody.

Reasoning of the Court

The Court rejected the prosecution’s argument that time spent in pre-arrest medical examination could be excluded from the 24-hour constitutional limit, stating, “Sections 53 and 54 of Cr.P.C. clearly show that the medical examination is obligatory after arrest… There is no concept of a pre-arrest medical examination in CrPC.”

The Court noted that the police station diary clearly used the word ‘custody’, indicating that the Petitioner was under the control of the police, and the same terminology was used when he was admitted to the hospital. “Such action on the part of the police officer is likely to lead to unscrupulous tendencies. It will set a wrong precedent where, after rejecting anticipatory bail and dismissal of SLP, the police officer will admit the accused in the hospital and show arrest after 30–40 hours. This will give wrong signals to society and to the public at large,” the Court added.

The Court also rejected the suggestion that since the Petitioner’s son was present during the hospitalisation, he was not in custody, observing, “Merely because the Petitioner’s son happened to be in the hospital… would not mean that the Petitioner was not in the custody or control of the police authorities.”

The Bench observed, “The arrest and detention of the Petitioner, in the peculiar facts and circumstances of the present case, is not in consonance with the mandate of Article 22(2) of the Constitution of India as well as Section 57 of Cr.P.C. and therefore, the same is illegal.”

Accordingly, the Court allowed the petition and declared the Petitioner’s arrest to be illegal. He was directed to be released subject to the conditions.

Further, noting that the Petitioner and his wife had shown significant cash deposits in their accounts, the Court directed them to furnish PAN details to the Income Tax Department for appropriate inquiry.

Cause Title: Hanumant Jagganath Nazirkar v. State of Maharashtra (Neutral Citation: 2025:BHC-AS:25516-DB)

Appearance:

Petitioner: Senior Advocate Manoj Mohite; Advocates Pranav Pokale, Priyanka Chavan, Aditya Bagal, Chinmay Sawant

Respondent: Additional Pubic Prosecutor S. V. Gavand