Anil Jaisinghani vs State Of Maharashtra
2023 Latest Caselaw 3330 Bom

2023:BHC-AS:10095-DB

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                     CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL WRIT PETITION NO. 1168 OF 2023

            1)      Anil Jaisinghani,
                    R/o. Room No.801, Mayapuri Apartment,
                    Behind Thakur Photo Studio,
                    Ulhasnagar, Thane,
                    Mumbai.

            2)      Nirmal Rajkumar Jaisinghani,
                    BK No.371, Room No.13,
                    Behind Thakur Studio,
                    Ulhasnagar, Thane,
                    Mumbai-421005.                                   .....Petitioners.

                    Vs.

            1)      The State Of Maharashtra.
                    Through Malabar Hill Police Station.

            2)      The Public Prosecutor,
                    Appellate Side,
                    Bombay High Court.                               .....Respondents



            Mr. Mrigendra Singh, Senior counsel a/w Mr. Parth Singh, Arya Jain,
            Priyanka Borude, Mohit Bharadwaj i/by Shri. Manan Sanghai for the
            Petitioners.
            Dr. Birendra Saraf, Advocate General a/w Mrs. A.S. Pai, P.P. a/w Ms. Geeta
            Mulekar APP, for the Respondent-State.


                                                           CORAM :   A. S. GADKARI AND
                                                                     PRAKASH D. NAIK, JJ.

RESERVED ON : 31st MARCH, 2023.

PRONOUNCED ON : 3rd APRIL, 2023.

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JUDGMENT (PER A.S. GADKARI, J.) :-


1)               The Petitioners have filed present Petition under Article 226 of

the Constitution of India for their release from custody in CR No.28 of 2023

dated 20th February, 2023 registered with Malabar Hill Police Station,

Mumbai under Sections 120(b) and 385 of the Indian Penal Code and

under Sections 8 and 12 of Prevention of Corruption Act, on the ground

that, from their arrest on 19th March, 2023 at about 11.45 p.m. near

Godhra, State of Gujarat, they were not produced before the Magistrate

within a period of 24 hours and therefore there is violation of Article 22(2)

of the Constitution of India and Section 57 of the Code of Criminal

Procedure (for short, " the Cr.P.C.'").

2) Heard Mr. Mrigendra Singh, learned Senior counsel for the

Petitioners and Dr. Saraf, learned Advocate General for the Respondent-

State. Perused record produced before us.

3) Though the Petitioners have prayed for several reliefs in the

prayer clause of the Petition, the learned Senior counsel for the Petitioners

submitted that, he is restricting his relief for release of the Petitioners from

custody of Respondent-State on the ground of breach of Article 22(2) of the

Constitution of India and Section 57 of the Cr.P.C..

4) Mr. Mrigendra Singh, learned Senior counsel for the Petitioners

submitted that, the Petitioners and in particular Petitioner No.1 was

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arrested at about 11.45 p.m. on 19 th March, 2023 at Godhra, Gujarat and

were produced for remand before the 45th Additional Sessions Judge,

Mumbai on 21st March, 2023 i.e. after 36 hours of their arrest. That, the

Press-Note issued under the signature of Dr. Balsingh Rajput dated 20 th

March, 2023 and electronic news duly supports the said fact. He submitted

that, the Petitioners were not produced before the concerned Magistrate

having jurisdiction over the place, where the Petitioners were arrested and

were produced before the learned 45th Additional Sessions Judge, Mumbai

after 36 hours from their arrest which is in violation of Article 22(2) of

Constitution of India and Section 57 of the Cr.p.C. He submitted that, the

Respondent-State did not obtain transit remand from the Magistrate in the

State of Gujarat for bringing the Petitioners to Mumbai. The directions

provided in the decision of Supreme Court in the case of D.K. Basu Vs. State

of W.B. reported in (1997) 1 SCC 416 are not followed. That, the learned

45th Additional Sessions Judge, Mumbai has not taken into consideration

the said aspect and remanded the Petitioners to police custody till 27 th

March, 2023. He submitted that, as there is breach of Section 57 of the

Cr.P.C., the Petitioners are entitled to be released from custody of

Respondent-State forthwith.

Learned Senior counsel tendered across the bar a compilation

of six Judgments. However, he fairly submitted that, he is pressing into

service only three decisions mentioned therein namely, (i) Gunupati

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Keshavram Reddy Vs. Nafisul Hasan & Anr. reported in (1952) 1 SCC 343 :

1952 SCC OnLine SC 26; (ii) Manoj Vs. State of M.P. reported in (1999) 3

SCC 715 and (iii) D.K. Basu Vs. State of W.B. reported in (1997) 1 SCC 416.

He therefore prayed that, the Petitioners' arrest and subsequent

custody thereof may be declared as illegal and in violation of Article 22(2)

of Constitution of India and Section 57 of the Cr.P.C..

5) Learned Advocate General appearing for the Respondent-State

opposed the prayers sought in this Petition and at the outset submitted that,

the Petitioner No.1 is a proclaimed offender by the learned Metropolitan

Magistrate, 64th Court Esplanade, Mumbai in CR No.172 of 2016 registered

with Azad Maidan Police Station. That, the Petitioner No.1 after

interception was traced out near Bedia Naka within the jurisdiction of

Vejalpur Police Station in the State of Gujarat at about 2.25 a.m. of 20 th

March, 2023 and was detained with the help of police of the said police

station. That, the Petitioner No.1 was thereafter immediately brought to

Mumbai on 20th March, 2023 at about 2.30 p.m. and after complying with

legal formalities he was arrested at about 5.00 p.m.. That, the Petitioner

No.2 and the Driver of the car from which the Petitioners were travelling

namely Mr. Pravin N. Parmar accompanied Petitioner No.1 to Mumbai, on

their own will. He submitted that, after deducting the time of travel, the

Petitioners were produced before the learned Additional Sessions Judge,

Mumbai within a period of 24 hours as contemplated under Article 22(2) of

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the Constitution of India and Section 57 of the Cr.P.C. The requisite station

diary entries were made. The guidelines issued by Apex Court regarding

arrest of accused were followed. He submitted that, there are no merits in

the Petition and the same may be dismissed.

6) In the case of Gunupati Keshavram Reddy Vs. Nafisul Hasan &

Anr. (Supra), the detenue therein was arrested on 11th March, 1952 and till

18th March, 1952 he was not produced before a Magistrate but was

detained in custody in breach of provisions of Article 22(2) of the

Constitution of India and therefore the Supreme Court directed his release

forthwith. In view thereof, placing reliance on the said decision by the

Petitioners is of no avail to them.

There is no second opinion about the principles enunciated by

the Supreme Court in the cases of Manoj Vs. State of M.P. (Supra) and D.K.

Basu Vs. State of W.B. (Supra).

7) In the present case, after lodgement of crime No.28 of 2023 i.e.

the crime in question, the Petitioner No.1 was not traceable. The record

indicates that, the Petitioner No.1 has been declared as a proclaimed

offender by the learned Metropolitan Magistrate, 64th Court, Esplanade

Mumbai by its Order dated 24th July, 2018 in CR No.172 of 2016 registered

with Azad Maidan Police Station, Mumbai. That, as per the technical

analysis and investigation, the police team was following Petitioners in the

area of Bardoli, Surat. The Vejalpur Police of State of Gujarat located three

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suspected persons in a car at Bedia Naka and the Mumbai Police were

called at the said place for identification and verification. The Mumbai

Police team identified one of the suspected person as a Petitioner No.1 who

was absconding for many years and was also wanted in the present crime

i.e. CR No.28 of 2023. The Petitioner No.1 was detained by the Mumbai

Police team on 20th March, 2023 at about 2.25 a.m. at Vejalpur, State of

Gujarat. Necessary legal formalities such as entry in the station diary etc.

were completed and the Petitioners were initially brought to Talasari,

District Palghar at about 9.25 a.m. of 20 th March, 2023. The medical check

up of the Petitioner No.1 was undertaken at Talasari Rural Hospital, District

Palghar. The Petitioner No.2 and the Driver of their car namely Mr. Pravin

N. Parmar accompanied Petitioner No.1 at their own will till Mumbai. The

police team along with the Petitioners reached Cyber police station at

Mumbai at about 2.00 p.m. on 20 th March, 2023. Between 2.30 p.m. to

4.50 p.m. of 20th March, 2023, the personal search panchanama and other

related legal formalities were complied with and the Petitioners were

arrested at about 5.00 p.m. Necessary entry in the station diary has been

effected. The Petitioners were thereafter referred for medical check-up

which was completed at about 10.30 p.m. on the said date.

8) The Petitioners were thereafter produced before the learned

45th Additional Sessions Judge, Mumbai on 21st March, 2023 at about 11.00

a.m. along with a Remand Report/Application No.329 of 2023 of even date.

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The Remand Report mentions that, the Petitioners were arrested on 20 th

March, 2023 at about 5.00 p.m. and it was a fresh remand. The learned

Additional Sessions Judge, Mumbai took up the said Remand

Report/Application for hearing at about 3.20 p.m. and after hearing the

learned counsel for the Petitioners and the APP, was pleased to remand the

Petitioners to police custody till 27 th March, 2023. It is thus apparently

clear that, the Petitioners were produced before the learned Additional

Sessions Judge, at Mumbai within a period of 24 hours from their arrest.

9) A bare perusal of relevant paragraph of the said Press-Note

dated 20th March, 2023 indicates that, it nowhere mentions that the

Petitioners were arrested at about 11.45 p.m. of 19 th March, 2023 at

Godhra, Gujarat. From the aforesaid factual matrix, it is apparent that, the

Petitioners and in particular Petitioner No.1 was detained in the wee hours

between 19th March, 2023 and 20th March, 2023. As per the record, the

Petitioner No.1 was located and accordingly detained at Vejalpur near Bedia

Naka within the jurisdiction of Vejalpur Police Station, State of Gujarat at

about 2.25 am. of 20th March, 2023 and therefore according to us, there is

no substance in the contention of the learned Senior counsel for the

Petitioners that, the Petitioners were arrested on 19 th March, 2023. In the

Order dated 21st March, 2023, passed by learned Sessions Judge on the

Remand Report, it is observed that, accused were arrested on 20 th March,

2023 at 5.00 p.m. after his proper identification as he was absconding in

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other cases. Except electronic news nothing is on record to show that

accused were arrested on 19th March, 2023 at 11.45 p.m. The reasons

putforth by Investigating Officer are satisfactory and therefore arrest cannot

be said to be illegal. We have perused the Remand Report dated 21 st March,

2023, wherein it is stated that, accused were arrested on 20 th March, 2023

at 17.00 hrs. Arrest/search panchanama was recorded and reasons for

arrest were informed to the accused. The guidelines issued by Supreme

Court were followed at the time of their arrest. The information about

arrest of accused was given to relative and acquaintance of accused.

10) Article 22(2) of Constitution of India states 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 excluding the

time necessary for the journey from the place of arrest to the court of the

magistrate. Whereas Section 57 of the Cr.PC provides that, 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 twenty-four hours exclusive of the time necessary for

the journey from the place of arrest to the Magistrate's Court.

As noted above, the Petitioners were produced before the Court

of competent jurisdiction within a period of 24 hours from the time of their

arrest. Assuming for the sake of argument, they were detained at Vejalpur

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on 20th March, 2023 at about 2.25 a.m. after excluding the period of travel

required for the said place to Mumbai, the Petitioners were thereafter

produced before the concerned Court of competent jurisdiction within the

stipulated period. According to us, in the present case there is no breach of

Article 22(2) of Constitution of India and/or Section 57 of the Cr.P.C. is

committed by the Respondent-State.

11) Petition being dehors of merits is accordingly dismissed.

        (PRAKASH D. NAIK, J.)                            (A.S. GADKARI, J.)