No Acts & Articles mentioned in this case
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.139 OF 2025
Mr. Kaushik Rameshchandra Thakkar
@ Anam, Age - 42 Years, Occ - Business,
R/at Sarthak Apartment,
Plot No.18, Sector 12, Vashi,
Navi Mumbai
At present In Thane Central Prison (in jail)
)
)
)
)
)
)
….Petitioner/
Accused
Versus
State of Maharashtra
Through PI
Kasarwadavali Police Station & EOW Thane
)
)
) …. Respondent
WITH
INTERIM APPLICATION (ST.) NO.2949 OF 2025
IN
WRIT PETITION NO.139 OF 2025
Sumeet Ganpatrao Bachewar
Age - 54 years, Occupation - Business
Residing at Plot No.155,
Santushti Bungalow, Sector - 28,
Vashi, Navi Mumbai
)
)
)
)
)
.… Applicant/
Intervener
IN THE MATTER BETWEEN
Kaushik Rameshchandra Thakkar @Anam
Age - 46 years, Occup - Business
Residing at Sarthak Apartment,
Plot No.18, Sector 12, Vashi,
Navi Mumbai,
at present at Thane Central Prison
)
)
)
)
)
) …. Petitioner
Versus
The State of Maharashtra
Kasarvadawali Police Station & EOW, Thane
)
) …. Respondent
WITH
INTERIM APPLICATION (ST.) NO.5872 OF 2025
IN
WRIT PETITION NO.139 OF 2025
Sundeep Prakash Bafna, )
Gauri Gaekwad 1 of 47
GAURI
AMIT
GAEKWAD
Digitally
signed by
GAURI AMIT
GAEKWAD
Date:
2025.04.17
13:41:14
+0530 2025:BHC-AS:17349-DB
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Aged about 50 years,
Occupation Business,
Residing at 201, Pleasant Palace,
Narayan Dabholkar Marg,
Malabar Hill, Mumbai - 400 006
)
)
)
)
) …. Intervener
IN THE MATTER OF
Kaushik Rameshchandra Thakkar @Anam
Aged about 45 years, Occupation Business
Residing at Sarthak Apartment,
Plot No. 18, Sector 12, Vashi,
Navi Mumbai
)
)
)
)
) …. Petitioner
Versus
The State of Maharashtra
(at the instance of Senior Inspector of
Police, Economic Offences Wing, Thane
vide Kasarwadavali Police Station vide C.R.
No.I-1217 of 2024)
)
)
)
)
) …. Respondent
----
Mr. Niranjan Mundargi a/w. Mr. Rishi Bhuta, Mr. Pranav Pokale,
Mr. Aditya Bagar, Advocate Keral Mehta, Mr. Ashish Dubey,
Ms. Ankita Bamboli, Ms. Vaishnavi Javheri, Ms. Saakshi Jha, Mr.
Prateek Dutta and Mr. Chinmay Sawant i/b. Mr. Pranav Pokale for
the Petitioner.
Ms. Sharmila Kaushik, APP for the Respondent - State.
Mr. Sanjeev P. Kadam, Senior Advocate a/w. Mr. Prashant Raul,
Ms. Varsha Milind Thorat and Mr. Mohan Kumbhar i/b. Mr. Dilip
Shinde for the Applicant/ Intervener in IA (ST.) No.2949 of 2025.
Mr. Nitin Sejpal a/w. Ms. Pooja Sejpal, Ms. Akshata Desai,
Mr. Sahir Patel, Mr. Siddharth Gharat and Mr. Sameer G. for the
Applicant/ Intervener in IA (ST.) No.5872 of 2025.
Mr. Ashok Shendage, API, EOW Thane City is present.
----
CORAM : RAVINDRA V. GHUGE &
ASHWIN D. BHOBE, JJ.
DATE : 16
th
APRIL, 2025
ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.) :
1. Rule. Rule made returnable forthwith and heard finally
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by the consent of the parties.
2. This matter was heard at length on 04.04.2025,
07.04.2025, 09.04.2025, and today.
3. The Petitioner has put forth his prayers below
paragraph F (i), (ii) and (iii), which read as under :
(i) After examining the facts, circumstance and
remand order passed by the Ld. Magistrate Thane
be pleased to issue writ of habeas corpus or any
other appropriate writ or direction under Article
226 of the Constitution of India and section 482
of Criminal Procedure Code 1973 (528 of BNSS),
thereby declaring the arrest of the Petitioner in
Crime No.1217/2024, registered with
Kasarwadavli Police Station, under section 420,
465, 467, 468, 120(B), 34 of Indian Penal Code to
be illegal;
(ii) This Hon'ble Court be pleased to declare the
arrest illegal and thereby quash and set aside the
remand orders dated 17
th
August 2024,
19
th
August 2024 and 22
nd
August 2024 passed by
the Ld. Magistrate Thane; and
(iii) This Hon'ble Court may be pleased to issue
appropriate direction to release the present
Petitioner on interim bail in Crime No.1217/2024
registered with Kasarwadavli police station
forthwith.
PLEADINGS, AVERMENTS AND SUBMISSIONS OF THE PETITIONER
4. The Petitioner has set out his case story in the
pleadings, which can be summarised, as under :
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(a) It is alleged that the original Complainant has
a business and is dealing with immovable assets,
purchase and sale through out Maharashtra. It is
further alleged that in the year 2022, the original
Complainant had met Accused No.1/the Petitioner
and his wife through one agent, namely
Indramohan Johari.
(b) It is alleged that Accused No.1/the Petitioner
Kaushik Anam and Accused No.2/his wife,
approached the original Complainant with the
intention to deceive the Complainant by inducing
him to invest in the disputed properties. It is
further alleged that Accused No.1/the Petitioner
told the Complainant that he has an office at Fort
Point, Ghodbander Road, Anand Nagar, Thane
West – 400 615 and gained his trust.
(c) It is alleged that Accused No.1/the Petitioner
had informed the Complainant about an
investment at Ulve, Navi Mumbai and quoted
lesser price than the market value, i.e.,
Rs.1,34,50,000/- as an investment in the said
property. Further, the present Complainant
deposited the alleged amount in the account of
one, Mr. Sundeep Bafna's company and even
handed over the cash as well as account
transaction into the Petitioner’s account.
(d) It is alleged by the Complainant that Accused
No.1/the Petitioner used the power of attorney of
Mr. Sundeep Bafna and thereby, they entered into
the Sale Deed on 18.05.2023 of four flats and the
said forged Sale Deeds were handed over to the
present Complainant by Accused No.1/the
Petitioner.
(e) It is further alleged by the Complainant that
when he visited the said flats in the month of
June, 2023, he got to know that, some other
individuals are residing in the alleged premises
and hence, he became suspicious of the said Sale
Deeds. Hence, he approached Sundeep Bafna
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using the Aadhar card details from the documents,
whereupon Sundeep Bafna disowned his signature
on the documents.
(f) It is also alleged by the Complainant, that he
obtained the certified copies of the said Sale
Deeds bearing Nos.8924,8926, 8923, 8925 of
2023, whereby he got to know that there are some
other documents registered with regards to the
four properties located at Shivkar. That the
Complainant alleged that the said documents are
forged, and he has not entered in any kind of Sale
Deed with regards to the property situated at
Shivkar.
(g) It is further, alleged that Accused No.1/the
Petitioner deceived the Complainant by providing
four flats in Dream Heritage Building, Ulve, Navi
Mumbai through false documents and the forged
signature of Mr. Sundeep Bafna and government
stamps.
(h) It is alleged that by deceiving the Complainant
with regards to Dream Heritage Building at Ulve,
Navi Mumbai and other various property,
Accused No.1/the Petitioner and Accused No.2,
have cheated the Complainant for an amount of
Rs.7,67,35,233/-.
(i) It is stated that for the alleged incident the
Complainant has filed an FIR No.1217/2024 with
Kasarvadavali Police Station on 26.07.2024 for
the offences punishable under Sections 420, 465,
467, 468, 120(B), 34 of the Indian Penal Code.
(j) It is submitted that the Petitioner had preferred
an Anticipatory Bail Application on 25.07.2024
before the Learned Sessions Court at Thane.
However, the said Application qua the present
Petitioner became infructuous as he was arrested
as per remand report on 16.08.2024 at 2.20 pm.
That, on 16.08.2024 the said Anticipatory
Application was posted for the final arguments.
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(k) It is submitted by the Petitioner that he was
produced before the Learned Magistrate, Thane
on 17.08.2024 at 2.50 pm and was granted PCR
time to time and on 22.08.2024, the Petitioner was
granted MCR. It is further submitted that the
Petitioner is presently in the judicial custody at
Thane Central Prison.
5. The issues raised before this Court are set out below
paragraph no.9,
inter-alia stating that an FIR No.1217/2024 was
registered with the Kasarwadwali Police Station on 26.07.2024,
alleging commission of offences punishable under Sections 420,
465, 467, 468, 120(B) and 34 of the IPC.
6. The grounds in support of the prayer for issuance of the
Writ of Habeas Corpus, that the arrest and detention be declared
illegal, with a further prayer for release on bail, are set out in the
averments below paragraph E (1) to (13), which are reproduced
verbatim, in the backdrop of the contention of the Respondents that
sufficient grounds have not been raised :
1. It is submitted by the Petitioner that the
aforesaid Petitioner came to be formally arrested
by the EOW Thane City on 16.08.2024 at 2.20
PM, for the offences punishable under section
471, 468, 467, 465, 420, r/w 12B of the Indian
Penal Code in connection with C.R.
No.1217/2024. That the Petitioner was produced
before the Ld. Magistrate on 17
th
August 2024 at
2.50 PM. It is submitted by the Petitioner that the
intimation of arrest was not tendered to the Ld.
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Magistrate on 16
th
August 2024 nor the grounds of
arrest were furnished to the Petitioner on the same
day at the time of arrest.
2. It is submitted by the Petitioner that the
Anticipatory bail final hearing was posted on
16
th
August 2024. That on the same day of the
final hearing of the Anticipatory Bail Application
bearing No.1307/2024, the Petitioner was arrested
from hotel Wayin Palanpur, State of Gujrat by the
investigation agency in the morning at around
6:30 AM on 16
th
August 2024. That because of the
unjustifiable arrest the Petitioner for the
Anticipatory bail qua the Petitioner got
infructuous. That the bare perusal of the remand
report and the arrest memo, the formal arrest was
shown on 16
th
August 2024 at 2.20 PM, the
location of arrest was shown to be the EOW office
Thane. That no individual who is trying to
safeguard his liberty before the Ld. Session’s
Judge Thane would get himself arrest on the very
same day of the final argument of the Anticipatory
bail. That such malafied conduct of the
Investigation machinery raises serious concern
with regards to the neutral investigation which is
supposed to be carried out. Annexure herein are
the copies of all remand application and its orders.
Marked as Annexure “B”.
3. It is vehemently submitted by the Petitioner
that the investigation machinery arrested the
present Petitioner and bought him to Mumbai Via
Indigo Flight bearing No.6E 533 from
Ahmedabad to Mumbai which landed at 11:55
hours on 16
th
August 2024, It is pertinent to note
that bare perusal of the station diary and the arrest
memo, the formal arrest has been shown as EOW
office Thane. Annexure herein is the copy of
Indigo flight ticket of 6E 533 from Ahmedabad to
Mumbai. Marked as Annexure “C”.
4. It is vehemently submitted by the Petitioner
that, bare perusal of the arrest memo and station
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diary, there is absolutely no whisper of the said
travel to Palanpur, Ahmadabad Gujrat via Flight
and thereby the arrest of the Petitioner at the said
spot and the petitioner was bought to Mumbai via
indigo flight. It is further submitted by the
Petitioner that there no mention of the prior
requisition of traveling beyond jurisdiction via
Flight, moreover, there is even absence of
intimation given to the local Police Station of
Palanpur from where the Petitioner has been
arrested. It is pertinent to note that no TRANSIT
REMAND was obtained from the local Magistrate
of Palanpur, Gujrat. It is further submitted by the
Petitioner that bare perusal of the arrest memo no
grounds of arrest have been furnished to the
Petitioner at the time of arrest. Annexure herein is
the copy of the station diary and the arrest memo
of the Petitioner. Marked as Annexure “D”.
5. It is submitted by the Petitioner that bare
perusal of the Chargesheet it can be perceived that
no departmental permission were sought for such
extra territorial jurisdiction travel. Moreover, the
excerpt of station diary miserably lacks the details
of the Petitioner time and place of arrest along
with the grounds of arrest. It is pertinent to not
that even after arresting the Petitioner the
Investigating officer abstained from producing the
Petitioner before this Hon’ble court on 16
th
August 2024. That investigation machinery have
flouted the law laid down under section 50, 57 of
the Criminal Procedure Code (47 & 58 of BNSS)
and Article 22 of The Constitution of India. That
such conduct of the Investigating officer has
violated the basic fundamental right of the present
Petitioner. That it was the duty of the
investigation officer to produce the Petitioner
before this Hon’ble JMFC court within 24 hrs of
arrest. Moreover, the Petitioner was produced
before the Ld. Magistrate on 17
th
August 2024 at
2.50 PM, which is nearly after 32 Hours of
arrest/detention. That the arrest and the conduct of
the investigation machinery is illegal and on that
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ground itself the Petitioner may be released on
bail forthwith.
6. It is submitted by the Petitioner that he was not
informed about the grounds of arrest in writing as
contemplated under section 50 of CRPC (sec 47
of the BNSS) and Article 22(1) of Constitution of
India. It is vehemently submitted by the Petitioner
that he was not produce before the concerned
magistrate within the stipulated period of 24 hours
as wall as was not informed the grounds of arrest
in writing. Further, the police machinery
miserable failed to even inform the Magistrate
about the arrest of the Petitioner and to get the
sanction of the custody beyond 24 hours as
contemplated under sec 167 of the Criminal
Procedure Code (Sec 187 of BNSS). That it was
the duty of the investigation officer to adhere to
the provision of the code of Criminal Procedure.
It is pertinent to note that there is breach of the
Fundamental rights of the Petitioner as
contemplated under article 22 of the constitution
of India. That the right of being informed about
the ground of arrest as wall as to be produce
before the magistrate within 24 hours are the
statutory right of the Petitioner. That the liberty of
the Petitioner was curtailed without following the
due process of law and hence, it can be perceived
that the said arrest was illegal.
7. It is submitted by the petitioner that the sec 57
pf the CRPC (sec 58 of the BNSS) state 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 absence
of special order of magistrate under sec 167,
exceed twenty-four hours exclusive of the time
necessary form the place of arrest to the
magistrate’s court”. Further the Article 22 of the
Constitution of India states that “i. No person who
is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds
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for such arrest nor shall he be denied the right to
consult and to be defended by, a legal practitioner
of his choice. ii. 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 magistrate”.
8. It is pertinent to note that this Hon’ble Court
and the Hon’ble Supreme Court on numerous
occasions have pointed out the fundamental right
of being informed the furnishing of grounds of
arrest in writing to the person who has been
arrested by the legal authorities. That the Hon’ble
courts even differentiated between the grounds of
arrest, reasons of arrest and reasons for the
remand. Moreover, the grounds of arrest shall
contain the details of the case, the gist of the
allegation, the evidence collected prior to the
arrest and thereby the evidence leads to the prima
facie case against the person who is being
arrested. The importance of the furnishing of the
ground of arrest have been enunciated by the
Hon’ble Supreme Court in the case of Pankaj
Bansal Vs Union of India, and in the recent
judgment of Prabir Purkayastha Vs State (NCT of
Delhi), 2024 SCC online 934. It is pertinent to
note that this Hon’ble Court in the very recent
Judgement of Hem Prabharkar Shah Vs State of
Maharashtra (204NCBHC-AS-36016), this
Hon’ble Court dealt extensively with the law laid
down under section 50, 57 of the CrPC and
Article 22 of the Constitution of India. That the
Hon’ble Court has observed that the arrest of the
person starts from the moment his freedom of
action is curtailed by the authority. That it is
constitutional mandate to produce the arrested/
custody person before the nearest Magistrate
within 24 hours. If the machinery fails to adhere
to the said constitutional mandate, then the said
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arrest and remand would be declared to be illegal
and the person shall be released from the custody.
9. It is further stated by the Petitioner that in
catena of the judgment the Hon’ble Supreme
Court and this Hon’ble Court has given emphasis
on protecting the individual liberty and adherence
to the laws and procedure prior to the curtailment
of the liberty. That the Hon’ble Supreme Court in
its latest Judgement of Arnesh Kumar Vs State of
Bihar (2014) 9 SCC 273, It is stated in para 9 that
an accused arrested without warrant by the police
has the constitutional right under article 22(2) of
the Constitution of India and section 57 of the
Criminal Procedure Code to be produced before
the magistrate without unnecessary delay and in
no circumstances beyond 24 hours excluding the
time necessary for the journey. During the course
of investigation of a case, an accused can be kept
in detention beyond a period of 24 hours only
when it is authorized by the magistrate in excise
of the power under section 167 CRPC. The
detention is a very Solemn function. It affects the
liberties and freedom of citizen and needs to be
exercised with great care and caution. Our
experience tells us that it is not exercise with the
seriousness it deserves. In many other cases,
detention is authorized in a routine, casual and
cavalier manner before marriage detention under
section 137 of CrPC. He has to be first satisfied
that the arrest made is legal and in accordance
with the law, and all the constitution rate of the
person arrested is satisfied. Further, the Hon’ble
Supreme Court in the case of Manoj Vs State of
Madhya Pradesh Criminal Appeal No.371 of 1999
para 12 has stated that it is constitutional mandate
that no person shall be deprived of liberty, except
in accordance with the procedure established in
law. Close to its heels, the constitution directs that
the person arrested and detained in custody shall
be produced before the nearest magistrate within
24 hours of such. The only time permitted by the
article 22 of the Constitution of India to be
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excluded from the state period of 24 hours is the
time necessary for going from the place of arrest
to the court of the magistrate and only under two
contingencies can the set direction be obviated.
One is when the person arrested is an enemy alien
second is when the arrested person is under any
law for preventive detention. In all other cases,
the constitution has prohibited peremptorily that
accused shall be detailed in custody beyond the
said period without the authority of the
magistrate. It is further stated by the petitioner
that Hon’ble Supreme Court is its lasted judgment
Prabir Purkayastha Vs State of NCT of Delhi
2024 AIR Supreme Court 2967 laid down that the
Communication of grounds of arrest to accused in
writing it is a fundamental and statutory right of
the an accused to be informed about the grounds
of arrest in writing, grounds on which liberty of a
citizen curtailed, must be communicated in
writing so as to enable that individual to seek
remedial measures against the deprivation of
liberty. The purpose of the informing to the
arrested person, the grounds of arrest is salutary
and sacrosanct in as much as, this information
would be the only effective means for the arrested
person to consult his advocate, oppose the police
custody demand and to seek bail. Any other
interpretation would tantamount to diluting the
sanctity of the fundamental right guaranteed under
article 22(1) of constitution of India. The right to
life and personal liberty is the most sacrosanct
fundamental right. Any attempt to encroach upon
this fundamental right has been frowned upon
right to be informed about the grounds of arrest
flows from the article 22(1) of the Constitution of
India, and any infringement of this fundamental
right would vitiate the illegality and the
unconstitutionality committed at the time of
arresting accused and the grant of initial police
custody remand to the accused. It is further
differential by the Hon’ble Supreme Court with
regards to the phrase reasons for arrest and
grounds of arrest the reason of arrest as indicated
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in the memo or purely formal parameters whereas
the grounds of arrest would be required to contain
all such details in hand of the investigation
officer, which necessitated the arrest of the
accused, thus the grounds of arrest would in
variably, be personal to the accused, and cannot
be acquitted with the reason of arrest which are
general in nature. That his Hon’ble Court in case
of Mahesh Pandurang Naik vs State of
Maharashtra AIR Online 2024 BOM 1240
declared the arrest to be illegal as it was not
compliant with the Article 22(1) and sec 50 of
CrPC. Further it can be perceived that such non
compliance of the aforementioned section would
amount to the gross violation of fundamental
rights of the accused. Considering the said facts
and circumstances this Hon’ble Court was pleased
to released the accused from the custody.
10. It is submitted by the Petitioner that on
numerous occasions the petitioner has raised the
contention of his illegal arrest before the Ld.
JMFC, Thane during the stage of remand of the
Petitioner on 17
th
August 2024. However, the Ld.
Magistrate failed to consider the said fact during
the said remand order, further, the same issue was
raised before the Ld. Magistrate prior to the filing
of the chargesheet the same was not considered
during the passing of the impugned order of bail.
11. It is submitted by the Petitioner that the act of
the investigation machinery and the Ld. JMFC
Thane has resulted in severe miscarriage of justice
on that ground itself the petitioner ought to have
released from the custody.
12. It is submitted by the Petitioner that the Ld.
Magistrate ought to have considered the date,
time, place of arrest, which forms the
pre-requisite to the sanction for the remand of the
Petitioner. Further, it was the prime responsibility
of the Ld. Magistrate supervise the legal
compliance which ought to have followed by the
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investigation machinery prior to the curtailment of
the individual liberty. That the Ld. Magistrate
miserably failed to safeguard the fundamental
rights of the Petitioner. That considering the
aspects of the infringement of arrest the Ld.
Magistrate ought to have released the Petitioner
from the custody forthwith.
13. It is submitted by the Petitioner that the said
illegality have been mentioned before the Ld.
Magistrate Thane during the course of bail
argument. However, the said illegality was not
considered and the bail was rejected by the Ld.
Magistrate.
ANALYSIS OF THE PLEADINGS AND SUBMISSIONS
7. Considering the strenuous submissions of the learned
APP for the State, as well as the learned Senior Advocate
Shri Kadam for the first Informant, we have perused the case diary.
The specific reason for us to go through the case diary is in the
backdrop of the controversy revolving around the timing as to when
was the Petitioner taken into custody and/or when was he actually
arrested and produced before the Court.
8. The Petitioner has invoked the Writ of Habeas Corpus
under Article 226 of the Constitution of India read with Section 482
of the Criminal Procedure Code, 1973 (presently Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023).
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9. It is the case of the Police Department that the
Petitioner was arrested on 16.08.2024 at 14:20 hrs. Thereafter, he
was conveyed six reasons for his arrest. He was produced before the
concerned Magistrate at 1.15 PM, on 17.08.2024. Here also lies a
dispute as regards the timing of the presentation of the Petitioner
before the Magistrate. The order of the Magistrate indicates the
production at 14:50 hrs. and the Police authorities claim that he was
brought inside the Court at 1.15 PM, which is hand-written on the
form.
10. The case diary pertaining to FIR No.1217/2024
indicates that the Police Officer, namely, Ashok Shendage had
received information that the Petitioner/Accused was hiding in
Palanpur, Gujarat. Accompanied by the police personnel, namely,
Mandar Lad, Nilesh Kanade and Nitin Ovalekar, the team travelled
by IndiGo Flight No.6E 5243 on 16.08.2024 and landed at the
Ahmedabad Airport at 02:25 hrs. (2.25 AM). From the Airport, they
travelled to ‘Hotel Way Wait’ in Palanpur via the bypass road. The
distance was around 145 kms. and they reached the Hotel at around
06:30 hrs. They took assistance of the constables from the Local
Crime Branch, namely, Shri Alpesh Kumar and Shri Chirag
Singh and intercepted the Petitioner at 07:00 hrs. on 16.08.2024.
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At 07:00 hrs., the Petitioner was taken into custody, is the specific
noting in the case diary.
11. The whole case turns upon the aspect of the specific
timing of taking the Petitioner into custody. This issue assumes
importance in the light of the judgments cited before us, which we
would be adverting to in the later portion of this judgment. On
page no.51 of the case diary, it has been recorded that the Police
team first verified whether the Petitioner was hiding in the said
Hotel. After confirming his identity, he was taken into custody (in
marathi:
taabyat ghetle). He was then taken by a vehicle to
Ahmedabad. They boarded the flight taking the Petitioner with the
team from Mumbai, and they landed at the Mumbai airport around
12 noon. He was taken to the EOW office and was arrested at 14:20
hrs. He was informed of the reasons for arrest. Thereafter, he was
taken for a medical examination and then was kept overnight in the
Police lock-up.
12. On page no.53 of the case diary, it has been recorded
that the arrest of the Petitioner was conveyed to his brother Deepak
on the mobile numbers recorded therein. For security reasons, after
the arrested Petitioner was subjected to a medical examination, he
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was put in the Thane Nagar Police Station lock-up, till 17.08.2024.
The Investigating Officer, who is present in the Court, confirms that
this was done on 16.08.2024 itself.
13. The remand papers placed before us indicate that the
Petitioner was produced before the concerned Magistrate at 1.15 PM
on 17.08.2024, which is written in hand writing. The learned
Magistrate, who has passed an order on 17.08.2024, granting police
custody remand of the Petitioner until 19.08.2024, has recorded in
paragraph no.1 of the order that the Petitioner was produced before
him at 2.50 PM by the ASI Ashok Shendage. His statement was
recorded that the Accused was brought to the Court at about
1.15 PM and that he has been produced within the prescribed time
of 24 hrs.
14. The learned APP for the State and the learned Senior
Advocate for the Informant, have contended that the Petitioner was
arrested at 14:20 hrs. on 16.08.2024. The Magistrate has, however,
recorded in paragraph no.3 of the said order that he was arrested at
7.00 AM in the said Hotel at Palanpur, on 16.08.2024.
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15. It is brought to our notice that the air ticket of IndiGo
airlines, to bring the Petitioner from Palanpur via Ahmedabad to
Mumbai, was purchased at 2.07 AM on 16.08.2024. The ticket
indicates the flight number as 6E 533 (A320), traveling from
Ahmedabad to Mumbai at 10:45 hrs. to reach Mumbai at 11:55 hrs.
16. The affidavit in reply filed by the Investigating Officer
Shri Ashok Shendage, dated 03.02.2025, contains an averment that
the fundamental right of the Petitioner under Article 22(2) has not
been violated. After registration of the FIR, the Petitioner was
arrested on 16.08.2024. The Petitioner was granted PCR. He filed a
regular Bail Application, which was rejected by an order dated
04.09.2024. The chargesheet has been filed on 08.11.2024. The
second Bail Application was rejected on 19.12.2024.
17. In paragraph nos.11 to 14 of the affidavit in reply, it is
stated that after receiving credible information about the
whereabouts of the Petitioner, the Police team had reached the spot
on 16.08.2024 and left Hotel Way Wait at around 7.00 AM along
with the Petitioner and reached the Ahmedabad Airport around
9.15 AM. Thereafter, they have boarded the flight and reached
Mumbai at around 12 noon. The Petitioner was taken to the office of
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the Economic Offence Wing (EOW), Thane at around 1.15 PM. He
was apprised of his rights and the grounds for arrest, in writing and
after obtaining his signature, he was placed under arrest at
14:20 hrs. In paragraph no.17, it is averred that the Petitioner was
produced before the Trial Court at 1.15 PM on 17.08.2024. In
paragraph no.20, it is reiterated, that the fundamental right of the
Petitioner under Article 22 has not been violated.
18. The learned Senior Advocate Shri Kadam representing
the Informant, has adverted to the contentions set out in the
Intervention Application. It is canvassed that two Bail Applications
of the Petitioner were rejected by the Trial Court. One application is
pending before the Sessions Court. Considering the law laid down
by the Hon’ble Supreme Court in State of Maharashtra and Ors. v/s.
Tasneem Rizwan Siddiquee
1
, if the person is in police custody
pursuant to the remand order passed by the jurisdictional Magistrate,
a Petition invoking the Writ of Habeas Corpus, is not maintainable.
In the said backdrop of the pleadings, it is prayed that the Writ
Petition be dismissed.
1 2018 (9) SCC 745
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WHETHER THE PETITIONER IS IN CUSTODY BEYOND 24 HOURS
19. We would deal with the first issue of whether the
Petitioner was taken into custody at 7.00 AM on 16.08.2024 or at
2.20 PM on the said date, and confined in custody beyond 24 hrs.
We do not find that this issue could be disputed anymore after
perusing the records of the case. In Vihaan Kumar v/s. The State of
Haryana and Anr., the Hon’ble Supreme Court had delivered a
judgment on 07.02.2025 in Criminal Appeal No.621 of 2025, in
similar circumstances.
20. In Niranjan Singh and Anr. v/s. Prabhakar Rajaram
Kharote and Ors.
2
, it was concluded in paragraph nos.7, 8 and 9 as
under :
7. When is a person in custody, within the
meaning of s.439 Cr. P.C. ? When he is in duress
either because he is held by the investigating
agency or other police or allied authority or is
under the control of the court having been
remanded by judicial order, or having offered
himself to the court's jurisdiction and submitted to
its orders by physical presence. 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 s. 439. This word is of
elastic semantics but its core meaning is that the
law has taken control of the person. The
2 1980 2 SCC 559
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equivocatory quibblings and hide-and-seek
niceties sometimes heard in court that the police
have taken a man into informal custody but not
arrested him, have detained him for interrogation
but not taken him into formal custody and other
like terminological dubieties, are unfair evasions
of the straightforwardness of the law. We need not
dilate on this shady facet here because we are
satisfied that the accused did physically submit
before the Sessions Judge and the jurisdiction to
grant bail thus arose.
8. Custody, in the context of s. 439, (we are not,
be it noted, dealing with anticipatory bail under
s.438) is physical control or at least physical
presence of the accused in court coupled with
submission to the jurisdiction and orders of the
court.
9. He can be in custody not merely when the
police arrests him, produces him before a
Magistrate and gets a remand to judicial or other
custody. He can, be stated to be in judicial
custody when he surrenders before the court and
submits to its directions. In the present case, the
police officers applied for bail before a Magistrate
who refused bail and still the accused, without
surrendering before the Magistrate, obtained an
order for stay to move the Sessions Court. This
direction of the Magistrate was wholly irregular
and maybe, enabled the accused persons to
circumvent the principle of s. 439 Cr.P.C. We
might have taken a serious view of such a course,
indifferent to mandatory provisions by the
subordinate magistracy but for the fact that in the
present case the accused made up for it by
surrender before the Sessions Court. Thus, the
Sessions Court acquired jurisdiction to consider
the bail application. It could have refused bail and
remanded the accused to custody, but, in the
circumstances and for the reasons mentioned by
it, exercised its jurisdiction in favour of grant of
bail. The High Court added to the conditions
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subject to which bail was to be granted and
mentioned that the accused had submitted to the
custody of the court. We therefore, do not proceed
to upset the order on this ground. Had the
circumstances been different we would have
demolished the order for bail. We may frankly
state that had we been left to ourselves we might
not have granted bail but sitting under Art. 136 do
not feel that we should interfere with a discretion
exercised by the two courts below.
21. It is, thus, long standing law that a person is deemed to
be in custody within the meaning of Section 439 of the Criminal
Procedure Code, after the investigating agency or other Police or
allied authority has held him or is under the control of the Court
having been remanded by a judicial order or having offered himself
to the Court’s jurisdiction. The case diary in no uncertain words
clearly mentions in Marathi language that the Petitioner was taken
into custody by the Investigating Officer with the help of the Local
Crime Branch Police Constables and the team accompanying him,
from Mumbai. Dealing with such situation, the Hon’ble Supreme
Court observes in paragraph no.7 that “
The equivocatory quibblings
and hide-and-seek niceties sometimes heard in court that the police
have taken a man into informal custody but not arrested him, have
detained him for interrogation but not taken him into formal custody
and other like terminological dubieties, are unfair evasions of the
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straightforwardness of the law”.
22. In Directorate of Enforcement v/s. Subhash Sharma,
the Hon’ble Supreme Court delivered its judgment on 21.01.2025,
in Criminal Appeal No.310 of 2025. The arrest of the Accused was
under the Prevention of Money Laundering Act, 2002. The
grievance raised by the Accused before the High Court was that the
arrest is deemed to be illegal as he was not produced before the
Magistrate within 24 hrs. thereby impinging his fundamental rights
under Articles 21 and 22(2). The High Court concluded that the
continuation of the Accused in the custody without production
before the Magistrate within 24 hrs., is unconstitutional. Referring
to Section 57 of the Criminal Procedure Code, the High Court
concluded that the said provision would apply even to offences
punishable under the provisions of the Prevention of Money
Laundering Act, 2002 and that the requirement to produce the
arrested individual before a Magistrate within 24 hrs., is mandatory.
23. The Hon’ble Supreme Court upheld the view taken by
the High Court of Chhatisgarh, by recording in paragraph nos.5, 6,
7, 8 and 9, as under :
5. The submission of the learned counsel
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appearing for the appellant is that pursuant to the
Look Out Circular (for short, ‘the LOC’) issued
against the respondent, he was detained at IGI
Airport from 11.00 hours, on 5
th
March, 2022. But
he was shown as arrested at 01.15 hours on
6
th
March, 2022 by the appellant Enforcement
Directorate and was produced before the Court of
the learned Magistrate within 24 hours from 1.15
hours on 6
th
March, 2022.
6. This argument cannot be accepted. Admittedly,
the LOC was issued at the instance of the
appellant - Directorate of Enforcement. By
executing the LOC, the Bureau of Immigration
detained the respondent at IGI Airport from
4
th
March 2022 on behalf of the Appellant. The
finding of fact recorded in paragraph 10 is that
undisputedly, the physical custody of the
respondent was taken over by the appellant from
the Bureau of Immigration at 11.00 hours on
5
th
March, 2022. Thereafter, at 1.15 hours on
6
th
March 2022, an arrest memo was prepared by
ED at Raipur. He was produced before the Court
at 3 p.m. on 6
th
March, 2024. The perusal of the
arrest order(Annexure p-1) shows that the typed
order was kept ready. The date and time of arrest
were kept blank which appear to have been filled
in by hand. Admittedly, the respondent was not
produced before the nearest learned Magistrate
within 24 hours from 11.00 a.m. on 5
th
March,
2022. Therefore, the arrest of the respondent is
rendered completely illegal as a result of the
violation of clause 2 of Article 22 of the
Constitution of India. Thus, the continuation of
the respondent in custody without producing him
before the nearest Magistrate within the stipulated
time of 24 hours is completely illegal and it
infringes fundamental rights under clause 2 of
Article 22 of the Constitution of India. Therefore,
his arrest gets vitiated on completion of 24 hours
in custody. Since there is a violation of Article
22(2) of the Constitution, even his fundamental
right to liberty guaranteed under Article 21 has
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been violated.
7. The requirement of clause 2 of Article 22 has
been incorporated in Section 57 of the Code of
Criminal Procedure, 1973 (for short ‘the Cr.P.C).
There is no inconsistency between the provisions
of the PMLA and Section 57 of Cr.P.C. Hence, by
virtue of Section 65 of the PMLA, Section 57 of
the Cr.P.C applies to the proceedings under the
PMLA.
8. Once a Court, while dealing with a bail
application, finds that the fundamental rights of
the accused under Articles 21 and 22 of the
Constitution of India have been violated while
arresting the accused or after arresting him, it is
the duty of the Court dealing with the bail
application to release the accused on bail. The
reason is that the arrest in such cases stands
vitiated. It is the duty of every Court to uphold the
fundamental rights guaranteed under Articles 21
and 22 of the Constitution.
9. Therefore, when arrest is illegal or is vitiated,
bail cannot be denied on the grounds of non-
fulfillment of twin tests under clause (ii) of sub-
section 1 of Section 45 of PMLA.
24. The facts appearing in Subhash Sharma (Supra) are
quite similar to those before us. The Director of Enforcement had
issued a Look Out Circular and detained the Accused at 11:00 hrs.
on 05.03.2022 at the IGI Airport. He was shown to be arrested at
01:15 hrs. on 06.03.2022. He was produced before the Magistrate
within 24 hrs. from the actual date and time of arrest.
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25. The High Court had negated the said contention and so
did the Hon’ble Supreme Court. It was concluded that the Accused
was detained by the Appellant on 04.03.2022 at the IGI Airport. He
was not allowed to move. His custody was taken at 11:00 hrs. on
05.03.2022 and arrest memo was prepared at 01:15 hrs. on
06.03.2022 and produced before the Court at 3.00 PM on the said
date. The conclusion drawn by the Hon’ble Supreme Court is that
the Accused was not produced before the nearest learned Magistrate
within 24 hrs. Hence, the arrest was held to be completely illegal in
view of clause 2 of Article 22 having been violated.
26. In the case in hands, at the cost of repetition, the record
clearly indicates that the Petitioner was taken into custody at
7.00 AM on 16.08.2024. He could have been produced before the
nearest learned Magistrate and a transit remand could have been
obtained. Nevertheless, the Accused was taken by the Police team in
a vehicle to Ahmedabad and they flew to Mumbai, admittedly
landing at 12 noon on 16.08.2024. He was taken to the office of the
EOW. He was medically examined on the same day and lodged in
the lock-up. He was purportedly produced at 1.15 PM, on
17.08.2024 and was actually presented before the Magistrate at 2.50
PM. It is also stated that the Court is at a distance of 500 meters
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from the office of the EOW. Considering the law laid down by the
Hon’ble Supreme Court in
Niranjan Singh (Supra) and Subhash
Sharma
(Supra), the fundamental right of the Petitioner under
Article 22 read with clause 2, and the protection under Article 21,
has been violated.
REASONS FOR ARREST
27. It is not the case of the Police authorities that after the
Petitioner was taken into custody at 7.00 AM on 16.08.2024, he was
apprised of the reasons for arrest. The narration in the case diary is
that the Police team verified that it was the same Accused, in search
of whom, the team had reached Palanpur. Once his identity was
verified and the Police team confirmed that he is Accused No.1, he
was taken into custody ( ता�यात घेतले) as per the narration in the
case diary.
TIME TO BE EXCLUDED U/S 58 OF BNSS
28. It has been argued by the learned Senior Advocate on
behalf of the Informant, as well as by the learned APP, that the time
required for the transportation of the Accused to the Court of the
concerned Magistrate in Mumbai and for the medical examination,
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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 Section 58. In the instant case,
the distance between the place of arrest and the Court, is 500 meters.
30. If the aforesaid contention is to be accepted, it would
mean that the time beginning from 7.00 AM, when the Petitioner
was taken into custody on 16.08.2024, inclusive of the journey by
air to the office of the EOW in Mumbai, the medical examination,
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his overnight confinement in the lock-up and then production at
1.15 PM before the Magistrate on 17.08.2024, will have to be
excused. This submission is palpably fallacious. If such submission
is to be accepted, an Accused could be detained even beyond 24 hrs.
with the justification on the spacious plea that the entire time
required for the journey, interjected with several events up to the
Court of the Magistrate, will have to be excluded. Such submission
could be accepted if there is a close connection and proximity
between the arrest, movement to the medical facility for medical
examination and further movement to the Court of the Magistrate.
31. In the case in hands, the journey of the Petitioner, in
custody of the Police, from Palanpur to Ahmedabad to Mumbai, was
followed with the Police team taking him to the office of the EOW
where he was detained and shown to be arrested at 2.20 PM. There
is no explanation as regards the transportation of the Petitioner, after
medical examination, for an overnight stay in the lock-up, only to be
produced in the Court of the Magistrate, at 1.15 PM, on 17.08.2024.
In the light of the above facts, the violation of Article 22(2) is writ
large. Section 58 does not contemplate the exclusion of the time
required for such a journey, interjected with several events, while
computing the time of 24 hrs.
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WRIT OF HABEAS CORPUS
32. The learned APP and the learned Senior Advocate
Shri Kadam, have strenuously contended that the Petitioner himself
cannot approach the High Court invoking the Writ of Habeas
Corpus and more so, after the Magistrate has granted a remand
order. Reliance is placed on the judgment delivered by this Court in
the matter of Naresh Goyal v/s. Directorate of Enforcement and
Ors.
3
Our attention is specifically drawn to paragraph nos.2, 11, 12,
14, 15, 19 and 20, which read thus :
“2. It is pertinent to note that the aforesaid
petition has been placed before us as per the
Roster, only in view of prayer clause (a) i.e.
writ of habeas corpus. If prayer clause (a)
which is the principal prayer, cannot be
entertained, as being not maintainable in the
facts, the question of entertaining rest of the
prayers, would not arise. Hence, we proceed to
consider whether the aforesaid petition seeking
a writ of habeas corpus would be maintainable
in the facts.
xxxxxxxxxxxxxx
11. In Ram Narayan Singh (supra), the Apex
Court has observed that a writ of habeas corpus
is with respect to legality of detention at the
time of return of rule and not to the date of
institution and that if on the date of return i.e.
the return of the rule, the detention is not
illegal and is duly authorised by a Competent
Magistrate by remand orders then the writ of
habeas corpus will not lie. In this context, it
3 2023 SCC OnLine Bom. 2446
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would be apposite to reproduce the relevant
paragraph i.e. para 4 which reads thus :
“4.
It has been held by this Court that in
habeas corpus proceedings, the Court is to
have regard to the legality or otherwise of
the detention at the time of the return and not
with reference to the institution of the
proceedings. The material date on the facts
of this case is the 10th March, when the
affidavit on behalf of the Government was
filed justifying the detention as a lawful one.
But the position, as we have stated, is that on
that date there was no order remanding the
four persons to custody. This Court has
often reiterated before that those who feel
called upon to deprive other persons of their
personal liberty in the discharge of what they
conceive to be their duty, must strictly and
scrupulously observe the forms and rules of
the law. That has not been done in this case.
The petitioners now before us are therefore
entitled to be released, and they are set at
liberty forthwith.”
(Emphasis supplied)
12. In Madhu Limaye, In RE MANU/
SC/0047/1968: 1969 (1) SCC 292, the issue
raised in the said petition pertained to non-
compliance of the provisions of Article 22(1) of
the Constitution. The Apex Court observed
that the law
as laid down in Ram Narayan Singh
(supra),
was that the Court must have regard to
the legality or otherwise of the detention at the
time of return. The relevant para reads thus :
“11. It remains to be seen whether any
proper cause has been shown in the return
for declining the prayer of Madhu Limaye
and other arrested persons for releasing
them on the
ground that there was non-
compliance with the provisions of
Article
22(1) of the Constitution. In Ram Narayan
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Singh's case, it was laid down that the court
must have regard to the legality or
otherwise of the detention at the time of the
return. In the present case the return, dated
November 20, 1968, was filed before the
date of the first hearing after the rule nisi
had been issued. The return, as already
observed, does not contain any information
as to when and by whom Madhu Limaye
and other arrested persons were informed
of the grounds for their arrest. It has not
been contended on
behalf of the State that
the circumstances were such that the
arrested
persons must have known the general
nature of the alleged offences for which
they had been arrested; vide Proposition 3
in Christie v. Leachinsky ((1947) 1 All
ELR
567). Nor has it been suggested that
the show cause notices which were issued on
November 11, 1968, satisfied the
constitutional requirement. Madhu Limaye
and others are, therefore, entitled to be
released on this ground alone.”
xxxxxxxxxxxxxx
14. I
n Sanjay Dutt v. State MANU/ SC/
0554/1994: 1994 (5) SCC 410, the Apex Court
in para 48 observed as under :
“48………...
It is settled by Constitution
Bench decisions that a petition seeking the
writ of habeas corpus on the ground of
absence of a valid order of remand or
detention of the accused, has to be dismissed,
if on the date of return of the rule, the
custody or detention is on the basis of a valid
order. (See Naranjan Singh Nathawan v.
State of Punjab, MANU/SC/
0073/1952:[1952] SCR 395; Ram
Narayan Singh v. The State of Delhi,
MANU/SC/0035/1953: [1953] SCR 652 and
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A.K. Gopalan v. Government of India,
MANU/SC/0091/1965: [1966] 2 SCR
427).”
(Emphasis supplied)
15. In Manubhai R.P. (supra), the Apex Court in
para 31 has observed as under :
“31. Coming to the case at hand, it is
evincible that the
arrest had taken place a
day prior to the passing of the order of
stay. It is also manifest that the order of
remand was passed by the learned
Magistrate after considering the allegations
in the FIR but not in a routine or mechanical
manner. It has to be borne in mind that the
effect of the order of the High Court
regarding stay of investigation could only
have bearing on the action of the
investigating agency. The order of remand
which is a judicial act, as we perceive, does
not suffer from any infirmity. The only
ground that was highlighted before the
High Court as well as before this Court is
that once there is stay of
investigation, the
order of remand is sensitively susceptible
and, therefore, as a logical corollary, the
detention is unsustainable. It is worthy to
note that the investigation had already
commenced and as a resultant consequence,
the accused was arrested. Thus, we are
disposed to think that the order of remand
cannot be regarded as untenable in law.
It is
well-accepted principle that a writ of habeas
corpus is not to be entertained when a person
is committed to judicial custody or police
custody by the competent court by an order
which prima facie does not appear to be
without jurisdiction or passed in an
absolutely mechanical manner or wholly
illegal. As has been stated in B.Ramachandra
Rao (supra) and Kanu Sanyal (supra), the
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court is required to scrutinize the legality or
otherwise of the order of detention which has
been passed. Unless the court is satisfied that
a person has been committed to jail custody
by virtue of an order that suffers from the
vice of lack of jurisdiction or absolute
illegality, a writ of habeas corpus cannot be
granted. It is apposite to note that the
investigation, as has been dealt with in
various authorities of this Court, is neither an
inquiry nor trial. It is within the exclusive
domain of the police to investigate and is
independent of any control by the
Magistrate. The sphere of activity is clear cut
and well demarcated. Thus viewed, we do
not perceive any error in the order passed by
the High Court refusing to grant a writ of
habeas corpus as the detention by virtue of
the judicial order passed by the Magistrate
remanding the accused to custody is valid in
law.”
(Emphasis supplied)
xxxxxxxxxxxxxx
19. Reliance was placed on the Apex Court
judgment in
V. Senthil Balaji (supra)
by
both, Mr. Amit Desai and Mr.
Venegavkar.
In the context of the facts in hand, the relevant
paras of the said judgment, with which we are
concerned, are being reproduced herein-under
i.e. paras 29, 30, 31, 88, 89 and
95.
“29. A writ of Habeas Corpus shall only
be issued when the detention is illegal. As a
matter of rule, an order of remand by a
judicial officer, culminating into a judicial
function cannot be challenged by way of a
writ of Habeas Corpus, while it is open to the
person aggrieved to seek other statutory
remedies.
When there is a non-compliance of
the mandatory provisions along with a total
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non-application of mind, there may be a case
for entertaining a writ of Habeas Corpus and
that too by way of a challenge.
30. In a case where the mandate of
Section 167 of the CrPC, 1973 and Section
19 of the PMLA, 2002 are totally ignored by
a cryptic order, a writ of Habeas Corpus may
be entertained, provided a challenge is
specifically made. However, an order passed
by a Magistrate giving reasons for a remand
can only be tested in the manner provided
under the statute and not by invoking Article
226 of the Constitution of India, 1950. There
is a difference between a detention becoming
illegal for not following the statutory
mandate and wrong or inadequate reasons
provided in a judicial order. While in the
former case a writ of Habeas Corpus may be
entertained, in the latter the only remedy
available is to seek a relief statutorily given.
In other words, a challenge to an order of
remand on merit has to be made in tune with
the statute, while non-compliance of a
provision may entitle a party to invoke the
extraordinary jurisdiction. In an arrest under
Section 19 of the PMLA, 2002 a writ would
lie only when a person is not produced
before the Court as mandated under sub-
section (3), since it becomes a judicial
custody thereafter and the concerned Court
would be in a better position to consider due
compliance.”
“ 31.
………… Suffice it is to state
that when reasons are found, a remedy
over an order of remand lies elsewhere.
Similarly, no such writ would be
maintainable when there is no express
challenge to a remand order passed in
exercise of a judicial function by a
Magistrate……….”
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“88. We shall first consider the
maintainability of the writ petition filed.
A writ of Habeas Corpus was moved
questioning the arrest made. When it
was taken up for hearing on a
mentioning, the next day by the Court,
the appellant was duly produced before
the learned Principal Sessions Judge in
compliance with Section 19 of the
PMLA, 2002. The custody thus becomes
judicial as he was duly forwarded by the
respondents. Therefore, even on the date
of hearing before the High Court there
was no cause for filing the Writ Petition
being HCP No. 1021 of 2023. Added to
that, an order of remand was passed on
14.06.2023 itself. The two remand
orders passed by the Court, as recorded
in the preceding paragraphs, depict a
clear application of mind. Despite
additional grounds having been raised,
they being an afterthought, we have no
hesitation in holding that the only
remedy open to the appellant is to
approach the appropriate Court under
the Statute. This was obviously not
done. We may also note that the
appellant was very conscious about his
rights and that is the reason why, by way
of an application he even opposed the
remand.
89. Despite our conclusion that the writ
petition is not maintainable, we would
like to go further in view of the
extensive arguments made by the
learned Senior Advocates appearing for
the appellant. As rightly contended by
the learned Solicitor General the scheme
and object of the PMLA, 2002 being a
sui generis legislation is distinct.
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Though we do not wish to elaborate any
further, we find adequate compliance of
Section 19 of the PMLA, 2002 which
contemplates a rigorous procedure 6
ptbefore making an arrest. The learned
Principal Sessions Judge did take note
of the said fact by passing a reasoned
order. The appellant was accordingly
produced before the Court and while he
was in its custody, a judicial remand was
made. As it is a reasoned and speaking
order, the appellant ought to have
questioned it before the appropriate
forum. We are only concerned with the
remand in favour of the respondents.
Therefore, even on that ground we do
hold that a writ of Habeas Corpus is not
maintainable as the arrest and custody
have already been upheld by way of
rejection of the bail application.”
“95. SUMMATION
OF LAW :
i.
When an arrestee is forwarded to the
jurisdictional Magistrate under Section
19(3) of the PMLA, 2002 no writ of
Habeas Corpus would lie. Any plea of
illegal arrest is to be made before such
Magistrate since custody becomes
judicial.
ii. Any non-compliance of the mandate
of Section 19 of the PMLA, 2002 would
enure to the benefit of the person
arrested. For such non-compliance, the
Competent Court shall have the power
to initiate action under
Section 62 of the
PMLA, 2002.
………..…………”
(emphasis supplied)
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In paragraph 95 clause (i) of V. Senthil
Balaji (supra), the Apex Court has held
that when an arrestee is forwarded to the
jurisdictional Magistrate under Section
19(3) of the PMLA, 2002, no writ of
habeas corpus would lie and that any plea
of illegal arrest is to be made before such
Magistrate, since custody becomes
judicial. Thus, having regard to the
aforesaid legal position, it is clearly
evident that a writ of habeas corpus cannot
be issued in the facts of the present case.
Once it is brought to the notice of the writ
Court that the person, at the time of filing
of the aforesaid petition, was in judicial
custody, the custody having been granted
by a Court of Competent jurisdiction, then
the writ of habeas corpus cannot be
entertained, ofcourse, subject to certain
exceptions as spelt out in the judgments
aforesaid. As noted by us, admittedly,
none of the grounds i.e. non-handing over
of a copy of the grounds of arrest,
illegality of petitioner’s arrest, non-
production before the competent court
within 24 hours, were ever raised, at the
time of the 1
st
or 2
nd
remand of the
petitioner. Both the remand orders i.e.
dated
2
nd
September 2023 and 11
th
September 2023 are detailed reasoned
remand orders, and do not show that any
arguments were advanced by the learned
counsel for the petitioner, at the first
available opportunity with respect to
illegality of arrest, non-handing over of the
copy of the grounds of arrest or non-
production within 24 hours before the
competent Court. The case in hand, does
not fall under any exception, and
consequently, the relief as sought for
cannot be granted. Although, Mr. Desai
placed heavy reliance on Madhu Limaye
(supra),
to buttress his submission that it is
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well possible to entertain a writ of habeas
corpus, if the remand orders are patently
routine and appear to have been made
mechanically and that if the detention in
custody cannot continue after arrest,
because of the violation of Article 22(1) of
the Constitution, the person is entitled to
be released forthwith, inasmuch as, the
orders of remand are not such, as could
cure the constitutional infirmities, we are
afraid the same would not apply to the
present case. The ratio laid down in
Madhu Limaye’s case (supra), cannot be
disputed, however, the same would not
apply to the petitioner’s case, as the facts in
hand, are clearly distinguishable, from the
facts in Madhu Limaye’s case (supra).
20. As noted, at the outset, in para 2, we are
restricting ourselves only to prayer clause (a),
i.e. prayer seeking a writ of habeas corpus, by
virtue of which, the petition is placed before us.
It is also pertinent to note, that the competence
and jurisdiction of the Enforcement Directorate
and of the learned Special Judge, PMLA
respectively, have not been challenged. A few
dates which are relevant to decide the issue, are
as under :
On 1
st
September 2023, the petitioner's
statement was recorded at his residence
and after his statement was recorded, the
petitioner was flown to Mumbai from
Delhi and was arrested at 10:50 p.m.
According to the prosecution, the grounds
of arrest were served upon him and that
the petitioner has acknowledged having
received the same, by affixing his
signature thereon.
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On 2
nd
September 2023, the petitioner was
produced before the Special Court at about
1:30 p.m. and the Special Court granted
custody of 9 days to the Enforcement
Directorate.
On 11
th
September 2023, in the second
remand, further 4 days' custody was
granted to the Enforcement Directorate.
On 14
th
September 2023, on the date of the
third remand, the petitioner was sent to
judicial custody.
On 15
th
September 2023, the aforesaid
petition was filed.
On 20
th
September 2023,
the petition
appeared before this Court, for the first
time (petitioner was at the relevant time, in
judicial custody). Accordingly, we
formally issued notice to the
Enforcement Directorate. On the
said date, Mr. Venegavkar appearing for
the Enforcement Directorate sought time to
file their reply.
In the meantime, i.e. on 27
th
September
2023, 4
th
October 2023, the Special Court
extended the judicial custody of the
petitioner, on the said dates and has
continued to do so, till date.
Admittedly, none of the remand orders,
post filing of the petition have been
challenged before us, as according to Mr.
Desai, the arrest and first and second
remand orders itself being illegal,
subsequent orders are not required to be
challenged.
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On 6
th
October 2023, the petitioner was
directed to amend the cause title of the
petition in view of the objection raised by
Mr. Venegavkar, since the petition, filed as
a writ of habeas corpus, was not supported
by any affidavit or statement on oath.
Accordingly, amendment was carried out.
On 11
th
October 2023, the respondent-
Enforcement Directorate filed their
affidavit-in-reply.
On 12
th
October 2023,
the affidavit-in-reply
was placed before the Court (date of
return of rule). It is not in dispute that
on the returnable date i.e. 12
th
October
2023, the petitioner was in judicial custody
of the Competent Court. It is also not in
dispute that prior to the filing of the present
petition and even post, several orders have
been passed by the Competent Court
extending judicial custody of the petitioner
from time to time.
[Emphasis supplied]
33. We have already concluded that the
detention/restrainment of the Petitioner in the custody of the Police
authorities beyond 24 hrs., considering the effect of Section 58,
amounts to illegal detention and Article 22(2) has been violated. We
do not find that the above admitted dates and events, in the
backdrop of the analysis of law, would support the contentions of
the State and the Informant. It is settled law that an individual, in
such peculiar circumstances, can file a Petition invoking the Writ of
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Habeas Corpus.
34. While dealing with the case of
Naresh Goyal (Supra),
this Court specifically observed in paragraph no.21 that the prayer
for issuance of a Writ of Habeas Corpus is not being entertained
since the Petitioner had not raised the ground that his detention was
beyond 24 hrs., while assailing his arrest. It would be apposite to
reproduce paragraph no.21 from
Naresh Goyal (Supra), hereunder :
21. At this juncture, at the cost of repetition, it is
pertinent to note that the submissions that
the
petitioner's arrest was illegal, that the grounds of
arrest were not furnished to him; and that his
detention was beyond 24 hours, were never raised
by the petitioner or his counsel, both, at the time
of the first remand as well as the second remand
i.e. on 2
nd
September 2023 and 11
th
September
2023 and the same has also not been disputed by
the learned senior counsel for the petitioner. It is
also not in dispute, that as far as supply of the
grounds of arrest i.e. physical copy is concerned,
the same was raised by the learned senior counsel
for the petitioner, having regard to the latest
judgment of the Apex Court in Pankaj Bansal
(supra) delivered on 3
rd
October 2023, post filing
of the aforesaid petition.
[Emphasis supplied]
35. So also, the judgment of the Hon’ble Supreme Court in
Pankaj Bansal v/s. Union of India and Ors.
4
would support the
Petitioner since it has mandated that a copy of the written grounds
4 2023 INSC 866
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of arrest should be furnished to an arrested person without an
exception. The State has been unable to point out, inasmuch as, the
case diary clearly indicates that when the Petitioner’s custody was
taken at 7.00 AM on 16.08.2024, a formal arrest was not shown and
he was not informed of the grounds for arrest, even orally, much less
in writing.
36. The Hon’ble Supreme Court (5 Judges Bench) has dealt
with illegal detention and failure to produce a detainee before the
Magistrate within 24 hrs. of his arrest, in Gunupati Keshavram
Reddy v/s. Nafisul Hasan and Anr.
5
and observed in it’s short
judgment, as under :
This is an application under Article 32 of the
Constitution of India complaining that one
Shri Homi Dinshaw Mistry is under illegal
detention and praying that he be released
forthwith. The petition alleges that Shri Mistry
was arrested in Bombay on 11-3-1952 and taken
in custody to Lucknow to be produced before the
Speaker of the Uttar Pradesh Legislative
Assembly to answer a charge of breach of
privilege. It is further alleged that Shri Mistry was
not produced before a Magistrate within twenty-
four hours of his arrest; but is still kept in
detention in the Speaker's custody at Lucknow.
The Attorney General admits before us that this
allegation is well founded, that is to say, that since
his arrest on the 11
th
March, Shri Mistry has not
been produced before a Magistrate; but is still
detained in custody. This is a clear breach of the
5 (1952) 1 SCC 343
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provisions of Article 22(2) of the Constitution of
India which is quite peremptory in its terms:
“22. (2)... no such person shall be detained in
custody beyond the said period without the
authority of a Magistrate.”
2. In view of the admitted facts it is perfectly clear
that this provision of the Constitution has been
contravened and the said Mr Mistry is entitled to
his release. The habeas corpus petition therefore
succeeds and we direct that Mr Mistry be released
forthwith. (Order communicated by telegram at
the expense of the petitioner.)
37. In
Sagar Maruti Suryawanshi v/s. State of Maharashtra
and Anr. (Criminal Writ Petition No.1101 of 2024) this Court ruled
in its judgment dated 29.04.2024, more specifically in paragraph
no.9, that the question of issuance of Writ of Habeas Corpus would
arise only in the event of the Petitioner’s detention being found to be
illegal as held in V. Senthil Balaji v/s. State
6
.
38. In Tasneem Rizwan Siddiquee (Supra), the Accused
Rizwan was apprehended while destroying evidence from his
mobile phone as well as from his laptop. Therefore, the
Investigating Officer took a conscious decision to arrest him by
taking assistance from the nearest Versova Police Station. After his
arrest, he was produced before the jurisdictional Magistrate within
the statutory period of 24 hrs. Hence, the Hon’ble Supreme Court
6 (2024) 3 SCC 51
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concluded that a Writ of Habeas Corpus was not maintainable. In
Niranjan Singh (Supra) and Subhash Sharma (Supra), the Hon’ble
Supreme Court noted that the Accused was not produced before the
jurisdictional Magistrate within 24 hrs. and, hence, it was ruled that
a Writ of Habeas Corpus was tenable before the High Court.
39. In view of the law laid down by the Hon’ble Supreme
Court in
Gunupati Keshavram Reddy (Supra) and Subhash Sharma
(Supra), the detention of the Petitioner at 7.00 AM as on 16.08.2024,
is held to be illegal and vitiated in view of the completion of
24 hrs. in custody thereby violating his fundamental right to liberty
guaranteed under Article 21 of the Constitution of India.
This
Petition invoking the Writ of Habeas Corpus, is allowed.
40. Rule is made absolute in the above terms.
41. We make it clear that our observations made, and
conclusions drawn in this judgment are with reference to the
detention of the Petitioner and would not influence the Trial Court
or affect the merits of the case.
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42. At this juncture, when the dictation of this judgment in
the open Court was concluded at 4.45 PM, the learned Advocate for
the Informant prayed for a stay to this judgment.
43. The learned Advocate for the Petitioner submits that
when bail is granted, even an order of bail is normally not stayed,
more so, on the request of the Informant. The Petitioner is behind
the bars since 16.08.2024, the investigation is complete and the
chargesheet has been tendered on 08.11.2024 and hence, the release
of the Petitioner would in no way affect the trial. He also assures
that the Petitioner will never attempt to influence any witnesses or
tamper with evidence.
44. In view of the above and having concluded that the
detention of the Petitioner continued beyond 24 hrs., is violative of
Article 22(2), that we decline to stay this judgment.
45. The original case diary is returned to the learned APP.
46. Considering the above, the Thane Central Prison
Authority shall act in furtherance of this order.
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47. Both the Interim Applications stand disposed off.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)
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