1

* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

&

* THE HONOURABLE SRI JUSTICE ALAPATI GIRIDHAR

+WRIT PETITION No:26235 OF 2026

%13.10.2026

# Sabena Prakash

……Petitioner

And:

$1. The State of Andhra Pradesh, rep. by its

Principal Secretary (Home Department),

Secretariat, Amaravati and others.

….Respondents.

!Counsel for the petitioner: : Sri G.V.S. Kishore Kumar

^Counsel for the respondents : Sri J. Krishna Praneet, A.G.P

attached to the office of the

Advocate General

<Gist:

>Head Note:

? Cases referred:

1.2023 Supreme (SC) 1164

2.2008 14 SCC 283

3.1997 KHC 245

4.2008 AIR (SC) 1788

5.2026 SCC OnLine Ker 13044

6.2013 1 SC 314

7.2026 1 SCC 500

8.2026 LiveLaw (SC) 82

9.2019 SCC OnLine Bom 2937

10.(2022)13 SCC 542

11.(1986) 3 SCC 141

12.1997 KHC 245

13.2013 1 SCC 314

2

HIGH COURT OF ANDHRA PRADESH

* * * *

WRIT PETITION No:26235 OF 2026

DATE OF JUDGMENT PRONOUNCED: 13.10.2026

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HONOURABLE SRI JUSTICE ALAPATI GIRIDHAR

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

____________________

RAVI NATH TILHARI, J

___________________

ALAPATI GIRIDHAR,J

3

Date of reserved for orders :16.09.2026

Date of pronouncement : 13.10.2026

Date of uploading : 13.10.2026

APHC010469692026

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3624]

TUESDAY, THE 13

TH

DAY OF OCTOBER, 2026

PRESENT

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

&

THE HONOURABLE SRI JUSTICE ALAPATI GIRIDHAR

WRIT PETITION NO: 26235/2026

Between:

1. SABENA PRAKASH, W/O. DR. RAVI PRAKASH, AGED ABOUT 62

YEARS,OCC HOUSE WIFE, R/O.AT KALA FARM, NEAR RNSIT

COLLEGE, UTTARAHALLI -KENGERI MAIN ROAD,

CHENNASANDRA, SUBRAMANYAPUR A POST, RAJARAJESHWARI

NAGAR, BENGALURU - 560098.

...PETITIONER

AND

1. THE STATE OF ANDHRA PRADESH, REP. BY PRINCIPAL

SECRETARY (HOME DEPARTMENT), SECRETARIAT BUILDING,

VELGAPUDI, GUNTUR DISTRICT

2. THE DIRECTOR GENERAL OF POLICE, STATE OF ANDHRA

PRADESH, MANGALAGIRI.

3. THE SUPERINTENDENT OF POLICE, YSR KADAPA DISTRICT.

4. THE STATION HOUSE OFFICER, MYDUKUR POLICE STATION, YSR

KADAPA DISTRICT.

5. THE STATE OF KARNATAKA, REP. BY ITS PRINCIPAL

SECRETARY, HOME DEPARTMENT, VIDHANASOUDHA,

4

BENGALURU.

6. THE COMMISSIONER OF POLICE, BENGALURU CITY,

KARNATAKA.

7. THE STATION HOUSE OFFICER, RAJARAJESHWARI NAGAR

POLICE STATION, BENGALURU.

8. CHAGANABOINAMURALI MOHAN, S/O SUBBARAYUDU, AGED

ABOUT 45 YEARS OCCUPATION BUSINESS, RESIDENT OF

UPPAGUNTAPALLE VILLAGE, MYDUKUR MANDAL, YSR KADAPA

DISTRICT, ANDHRA PRADESH.

...RESPONDENT(S):

Petition under Article 226 of the Constitution of India praying that in the

circumstances stated in the affidavit filed therewith, the High Court may be

pleased to issue an appropriate Writ, Order or Direction, more particularly one

in the nature of Writ of Habeas Corpus, Writ of Certiorari and Writ of

Mandamus, and be pleased to (a) Issue a Writ of Habeas Corpus directing

the Respondents to forthwith produce the body of the detenu, namely Dr.

Ravi Prakash, S/o Late L. Shivalingaiah, Aged About 63 Years, R/at Kala

Farm, Near RNSIT College, Uttarahalli-Kengeri Main Road, Chennasandra,

Subramanyapura Post, Rajarajeshwari Nagar, Bengaluru 560098, presently

confined pursuant to a remand report dt.31.08.2026 in Crime No.229 of 2026

of Mydukur Police Station, YSR Kadapa District, before this Hon'ble Court

and, upon examining the legality and constitutional validity of his

apprehension, transportation, remand and continued detention, be pleased to

declare the same as illegal, arbitrary and violative of Articles 21 and 22 of the

Constitution of India, and consequently direct his immediate release from

custody (b) Issue a Writ of Certiorari, or any other appropriate Writ, Order or

Direction, calling for the entire original records relating to Crime No.229 of

2026 of Mydukur Police Station, YSR Kadapa District, including the First

Information Report and the Remand Report dated 31.08.2026, and after

examining the legality, validity and constitutional propriety thereof, be pleased

to quash the said First Information Report and the consequential Remand

Report insofar as they relate to the detenu, as being illegal, arbitrary, without

jurisdiction and violative of Articles 21 and 22 of the Constitution of India. (c)

Issue a Writ of Mandamus directing the respondent authorities to preserve,

secure and produce before this Hon'ble Court the complete original records

relating to the apprehension, arrest, transportation and remand of the detenu,

including the Arrest Memo, Grounds of Arrest, Station Diary entries, General

5

Diary entries, Case Diary, Movement Register, arrest intimation, electronic

communications, CCTV footage, call records, GPS movement records of the

police vehicle, and every contemporaneous record pertaining to the

apprehension and production of the detenu, so as to facilitate effective judicial

scrutiny and to prevent any alteration, interpolation or destruction of material

records (e) Issue a further Writ of Mandamus directing the competent

authorities to conduct an independent departmental enquiry against the police

officers responsible for the apprehension, transportation and remand of the

detenu, in the event this Hon'ble Court finds violation of the constitutional

safeguards governing arrest and detention, and to initiate appropriate

disciplinary proceedings in accordance with law

IA NO: 1 OF 2026

Petition under Section 151 CPC praying that in the circumstances stated

in the affidavit filed in support of the petition, the High Court may be pleased

Direct the immediate release of the detenu, Dr. Ravi Prakash, on ad-interim

bail or on such interim conditions as this Hon'ble Court may deem fit and

proper, pending adjudication of the present Writ Petition

IA NO: 2 OF 2026

Petition under Section 151 CPC praying that in the circumstances stated

in the affidavit filed in support of the petition, the High Court may be pleased

stay all further proceedings pursuant to Crime No.229 of 2026 of Mydukur

Police Station, including all consequential proceedings arising out of the

impugned Remand Report dated 31.08.2026, insofar as the detenu is

concerned; subject to the result of the Writ Petition

IA NO: 3 OF 2026

Petition under Section 151 CPC praying that in the circumstances stated

in the affidavit filed in support of the petition, the High Court may be pleased

Direct the respondents to forthwith preserve, seal and produce before this

Hon'ble Court the original Station Diary, General Diary, Case Diary,

Movement Register, Arrest Memo, Grounds of Arrest, remand papers,

communications exchanged between the Andhra Pradesh Police and

Karnataka Police, and every contemporaneous record relating to the

apprehension and transportation of the detenu, without permitting any

alteration, destruction or interpolation thereof; of the Writ Petition

6

IA NO: 4 OF 2026

Petition under Section 151 CPC praying that in the circumstances stated

in the affidavit filed in support of the petition, the High Court may be pleased

Restrain the respondents from subjecting the detenu to any further custodial

interrogation, coercive investigation or any action prejudicial to his rights

during the pendency of the present Writ Petition; Writ Petition

IA NO: 5 OF 2026

Petition under Section 151 CPC praying that in the circumstances stated

in the affidavit filed in support of the petition, the High Court may be pleased

may be pleased to permit the Petitioner to amend the Main Prayer and the

Interim Prayer of the Writ Petition and the Affidavit filed in support thereof, in

the manner set out above, in the interest of justice

Counsel for the Petitioner:

1. G V S KISHORE KUMAR

Counsel for the Respondent(S):

1. THE ADVOCATE GENERAL

The Court made the following:

JUDGMENT : (per Hon‟ble Sri Justice Ravi Nath Tilhari)

1. Heard Sri G.V.S. Kishore Kumar, learned counsel for the petitioner, and

Sri J. Krishna Praneeth, learned Assistant Government Pleader attached to

the office of the learned Advocate General, appearing for the respondents.

I. Nature of the writ petition for Habeas Corpus, challenging the

remand order:

2. The writ petition under Article 226 of the Constitution of India has been

filed for a writ of Habeas Corpus to produce the alleged detenu namely

Dr. Ravi Prakash and for his release. The writ petition has been filed by the

wife of the detenu. The petitioner also challenges the remand order passed

7

by the learned Judicial Magistrate of the First Class, Mydukuru dated

31.08.2026 in Crime No.229 of 2026 of Mydukur Police Station, YSR Kadapa

District and prays to quash the same.

3. The amended prayer in the writ petition is reproduced as under:

“It is, therefore, most respectfully prayed that this Hon'ble Court may be

pleased to issue an appropriate Writ, Order or Direction, more particularly

one in the nature of a Writ of Habeas Corpus and Writ of Certiorari, and

be pleased to:

(a) Issue a Writ of Habeas Corpus directing the Respondents to

forthwith produce the body of the detenu, namely Dr. Ravi

Prakash, S/o Late L. Shivalingaiah, Aged About 63 Years. R/at

Kala Farm, Near RNSIT College, Uttarahalli-Kengeri Main Road,

Chennasandra, Subramanyapura Post, Rajarajeshwari Nagar,

Bengaluru 560098, presently confined pursuant to remand report

and remand order dt.31.08.2026 in Crime No.229 of 2026 of

Mydukur Police Station, YSR Kadapa District, before this Hon'ble

Court and, upon examining the legality and constitutional validity

of his apprehension, transportation, remand and continued

detention, be pleased to declare the same as illegal, arbitrary and

violative of Articles 14, 21 and 22 of the Constitution of India, and

consequently direct his immediate release from custody

(b) Issue a Writ of Certiorari, or any other appropriate Writ, Order

or Direction, calling for the records relating to the Remand Order

dated 31.08.2026 passed by the learned Judicial First Class

Magistrate, Mydukur, in Crime No.229 of 2026 of Mydukur Police

Station, YSR Kadapa District, and after examining the legality,

validity and constitutional propriety thereof, be pleased to quash

the said Remand Order insofar as they relate to the detenu as

being illegal, arbitrary, without jurisdiction and violative of Articles

14, 21 and 22 of the Constitution of India; and

8

(c) Pass such other order or orders, writ or direction as this

Hon'ble Court may deem fit and proper in the facts and

circumstances of the case, in the interests of justice.”

II. Facts:

4. The petitioner‟s case is that the detenu and Dr.Putta Ravi Kumar have

been embroiled in long-standing civil litigation concerning immovable property

situated in Bangaluru. In the year 2026, the detenu instituted O.S.No.25201

of 2026 in the civil court seeking adjudication of his civil rights for cancellation

of sale deed in respect of the schedule property. In the said property Dr. Putta

Ravi Kumar filed an application under Order VII Rule 11 of the Code of Civil

Procedure seeking rejection of the plaint, which was allowed and challenging

the said order regular First Appeal No.602 of 2026 was filed and it is pending

before the High Court of Karnataka, in which by interim order dated

01.04.2026, all the parties were directed to maintain status quo, with respect

to the schedule property pending disposal of the appeal, which interim order is

operative. Dr. Putta Ravi Kumar also filed W.P.No.6708 of 2026 in the High

Court of Karnataka seeking police protection and other consequential relief

which petition was also pending. Following the civil disputes, other criminal

cases were also registered between the parties arising out of the dispute the

very same property. Crime No.99 of 2026 was registered on the complaint of

Dr. Putta Ravi Kumar, whereas Crime No.100 of 2026 was registered as a

cross-case on the complaint of the detenu in respect of the very incident.

Both the matters were carried to High Court of Karantaka at Bengaluru and

interim suspension was ordered against the respective crimes. Another FIR

9

being Crime No.137 of 2026 was registered against the detenu on the

complaint of one Jayamma, at the behest of Dr. Putta Ravi Kumar, the de-

facto complainant being a maid-servant of Dr.Putta Ravi Kumar. That was

also challenged in the High Court of Karnataka, in which by order dated

16.06.2026 interim protection was granted by staying the further investigation

insofar as the detenu is concerned.

5. Petitioner‟s further case is that another Crime No.229 of 2026 was

registered by Mydukur Police Station (State of Andhra Pradesh) on

22.07.2026 alleging commission of offences by the accused Nos.1 to 4

therein, attributing motive to the existing civil dispute between the detenu and

Dr.Putta Ravi Kumar, though the detenu was not physically present at the

place of occurrence nor any over-tact was attributed to him in the F.I.R, in

Crime No.229 of 2026, but he was implicated as Accused No.5, on the

allegation of conspiracy.

6. In Crime No.229 of 2026, on 30.08.2026, the officials of the Andhra

Pradesh Police apprehended the detenu from Bengaluru, State of Karantaka

and transported him to the State of Andhra Pradesh. The apprehension and

transportation of the detenu were in complete disregard of the constitutional

safeguards. The detune was not produced before the Magistrate in the State

of Karantaka for obtaining a valid transit remand prior to the transportation to

the State of Andhra Pradesh. The requirement of producing the person

arrested to the nearest Magistrate under Article 22(1) of the Constitution of

India, as also the provisions of Bharatiya Nagarik Suraksha Sanhita, 2023 (for

10

short, the BNSS, 2023) were not complied with. On 30.08.2026 itself the

petitioner had lodged a Crime No.267 of 2026 before Rajarajeshwari Nagar

Police Station, Bengaluru, complaining the illegal apprehension and assault

upon the detenu, during the course of his apprehension by the Andhra

Pradesh Police officials. On 31.08.2026, the detenu was produced before the

learned Judicial Magistrate of the First Class, Mydukur, Y.S.R Kadapa District

(A.P) where upon the remand report was submitted seeking judicial custody

and the learned Magistrate authorized the remand.

III.(a) Submissions of the learned counsel for the petitioner:

7. Learned counsel for the petitioner submitted that the writ petitioner‟s

prayer is confined to writ of Habeas Corpus only with respect to the Crime

No.229 of 2026, Mydukur Police Station (Andhra Pradesh).

8. Sri G.V.S Kishore Kumar, learned counsel for the petitioner submitted

that the constitutional safeguards under Article 22(1) of the Constitution of

India were violated. The detenu was not produced before the nearest

Magistrate in Bengaluru (Karnataka State) but was produced before the

jurisdictional Magistrate, Mydukur (State of Andhra Pradesh). The

transportation of the detenu from the place of arrest in Bengaluru to the place

of jurisdictional Magistrate (Andhra Pradesh) was without any transit remand

from the Magistrate at Bengaluru. There was no transit remand to transport

the detenu from Bengaluru to Mydukur. In the absence of such compliance

the remand order by the jurisdictional Magistrate was without jurisdiction and

11

the continued detention of the detenu has been rendered unconstitutional and

in violation of the detenu‟s Fundamental Rights. The detenu is entitled to be

set free.

9. Learned counsel for the petitioner placed reliance in (1) Priya Indoria

vs. State of Karnataka and others etc.,

1

, (2) Pradeep J Mehta vs.

Commissioner of Income Tax, Ahmedabad

2

, (3) Nithin Aggarwal vs. State

of UP and 3 others (High Court of Judicature at Allahabad in Habeas Corpus

Writ Petition No.273 of 2026 dated 03.04.2026), (4) D.K. Basu vs. State of

West Bengal

3

, (5) Ashok Bhan and Dalveer Bhandari Pradip J. Mehta

vs. Commissioner of Income Tax, Ahmedabad

4

, (6) Sandeep Kumar vs.

The State (Govt. of NCT of Delhi) (W.P. (Crl.) No.2189 of 2018 dated

12.12.2019) of the High Court of Delhi at New Delhi, (7) Muhammed Ashfaq

C. Vs Union of India, rep. by its Director

5

, (8) Manubhai Ratilal Patel TR.

Ushaben vs. State of Gujarat and others

6

, (9) Mihir Rajesh Shah vs. State

of Maharashtra and another

7

, (10) Sri Mukund Maheswar and another vs.

Axis Bank Ltd and others

8

.

10. No other point was raised.

III(b). Submission of the learned Government Pleader:

1

2023 Supreme (SC) 1164

2

2008 14 SCC 283

3

1997 KHC 245

4

2008 AIR (SC) 1788

5

2026 SCC OnLine Ker 13044

6

2013 1 SC 314

7

2026 1 SCC 500

8

2026 LiveLaw (SC) 82

12

11. Sri J. Krishna Praneeth, learned Assistant Government Pleader

submitted that there is no illegality in the remand order. The detenu was

produced within 24 hours of arrest before the jurisdictional Magistrate at

Mydukur. The remand was not in violation of Article 22(2) of the Constitution

of India nor of any safeguards under the provisions of BNSS Act, 2023. The

transportation of the detenu (Dr.Putta Ravi Kumar-A5) after his arrest by the

Mydukur Police from Bengaluru on 30.08.2026, without first producing him

before the Magistrate at Bengaluru for obtaining transit remand is not violation

of Article 22 of the Constitution of India. To obtain transit remand is not

mandatory. The detenu was produced before the jurisdictional Magistrate

within 24 hours of his arrest.

12. Learned Government Pleader placed reliance in (1) Sat Prakash

Yadav vs. State (Government of NCT of Delhi) (2014 SCC OnLine Del

3012) (2) Uttam Daga @ Uttam Kumar Daga vs. The Union of India

through the Assistant Director, Enforcement Directorate, Patna Zonal

Office Bihar and others (Criminal Writ Jurisdiction Case No.196 of 2025

dated 08.04.2025), the High Court of Judicature at Patna and (3) Chaganti

Satyanarayana and others vs. State of A.P (1986) 3 SCC 141).

IV. Points for determination:

13. In view of the submissions advanced by the learned counsel for the

parties, the following points arise for our consideration:

13

A) Whether the production of the accused (arrested person) before

the Jurisdictional Magistrate within 24 hours of the arrest,

excluding the journey time, but without transit remand, is violative

of Article 22(2) of the Constitution of India?.

B) If the answer to Point-A is in affirmative, whether the remand

order of the Jurisdictional Magistrate would be in valid, entitling

the detenu for release by a writ of Habeas Corpus?

V. Analysis:

14. We have considered the submissions advanced by the learned

counsels for both the parties and perused the material on record.

15. The only ground of challenge raised before us in the oral submissions

advanced is that there was no transit remand from the nearest Magistrate in

Bengaluru where the detenu was arrested for his transportation from the place

of occurrence to the jurisdictional Magistrate in Andhra Pradesh. It being a

case of inter State arrest, in the absence of a transit remand, there was

violation of Article 22(2) of the Constitution of India and so notwithstanding the

remand by the jurisdictional Magistrate the detention is illegal.

16. No dispute has been raised with respect to the production of the

alleged detenu before the Jurisdictional Magistrate at Mydhukur (A.P) within

24 hours from the date and time of his arrest at Bengaluru.

17. Article 22(1),(2) and (3) of the Constitution of India provides for

protection against arrest and detention in certain cases. It reads as under:

14

“22. Protection against arrest and detention in certain cases:

(1) No person who is arrested shall be detained in custody without

being informed, as soon as may be, of the grounds for such arrest nor

shall he be denied the right to consult, and to be defended by, a legal

practitioner of his choice.

(2) 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 a

magistrate.

(3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing

for preventive detention.

18. Section 45 of BNSS Act, 2023 is reproduced as under:

“45.Pursuit of offenders into other jurisdictions.

A police officer may, for the purpose of arresting without warrant any

person whom he is authorised to arrest, pursue such person into any place in

India.”

19. Section 45 of BNSS permits a Police to pursue an accused in other

jurisdiction. A police officer for the purpose of arresting without a warrant to

pursue an accused in other jurisdictions. A police officer, for the purpose of

arresting without a warrant, one whom he is allowed to arrest, may pursue an

individual anywhere in India.

15

20. Placing much reliance in Priya Indoria (supra) (Paras 88 to 90), the

learned counsel for the petitioner submitted that the transit remand is must to

produce the person arrested before the jurisdictional Magistrate in case of

interstate arrest.

21. Paragraphs 88 to 90 of Priya Indoria (supra) are as under:

“88. Section 48 of CrPC permits the police to pursue an accused in other

jurisdictions. A police officer, for the purpose of arresting without a warrant, one

whom he is allowed to arrest, may pursue an individual anywhere in India. Prior

to effecting the arrest outside a particular jurisdiction, the police is obligated to

secure the transit remand i.e. the remand of the accused, for taking him from one

place to another in their own custody, usually for the purpose of producing him

before the concerned magistrate who has jurisdiction to try/commit the case. The

primary purpose of such a remand is to enable the police to shift the person in

custody from the place of arrest to the place where the matter can be investigated

and tried. However in various cases, the police and investigating agencies have

failed to exercise necessary restraint while functioning within their legal remit. It is

for the aforesaid reason that an accused apprehending arrest seeks pre-arrest

bail. The Courts in India have to be vigilant about such applications being filed

particularly when a person alleged to have committed an offence can be

proceeded with by setting the criminal law in motion in a place other than the

place where the offence has actually occurred. In such circumstances the Courts

must balance the interest of the accused in the context of the salutary principle of

access to justice which is a facet of Article 21 of the Constitution as well as a

Directive Principle of State Policy, especially Article 39(A). More importantly, it is

a facet of Article 14 of the Constitution which guarantees to every person in the

country, equality before the law and equal protection of the law.

89. In this case, we are concerned with what is loosely termed as „transit

anticipatory bail‟. As we have seen, the expression „anticipatory bail‟ is not

defined in the CrPC though it is traceable to Section 438 of CrPC This Court in

Balchand Jain had defined anticipatory bail to mean bail in anticipation of arrest.

The Constitution Bench in Gurbaksh Singh Sibbia has held that filing of FIR is not

a condition precedent for exercising power under Section 438 of CrPC What is

required for invocation of power under Section 438 is that the person seeking

anticipatory bail should show reasonable belief of imminent arrest. If the

expression „anticipatory bail‟ is not a defined expression, then it is quite but

16

natural that the larger expression „transit anticipatory bail‟ would not find any

exposition in the CrPC. Perhaps the need and necessity for transit anticipatory

bail has occasioned because the police has been conferred power under the

CrPC to pursue an accused in other jurisdictions. Immediately upon affecting the

arrest of a person outside the jurisdiction where the offence is registered, the

police is obligated to secure a transit remand. The arrested person has to be

produced before the nearest magistrate. If such a magistrate finds that he has no

jurisdiction to try the case in which the accused has been arrested, he may order

the accused to be forwarded to a magistrate having the jurisdiction to try the case

or to commit it for trial. Thus, the police is obligated to secure a transit remand of

the accused for taking him from the place where he is arrested to the place where

the crime is registered, for production before the competent magistrate in terms of

the requirement of Article 22. As we have already noted, the primary purpose of

such a transit remand is to enable the police to shift the person in custody from

the place of arrest to the place where the matter can be investigated. It appears

that from the aforesaid requirement of transit remand, has arisen the necessity of

„transit anticipatory bail‟ for, an affected person cannot be without a remedy.

90. The word „transit‟ is derived from the Latin word transitus which means

passage from one place to another. Since the word „transit‟ is an undefined

expression in CrPC, we may take recourse to the dictionary meaning of the word

„transit‟. The Concise Oxford English Dictionary, 10th Edition, Revised, defines

the word „transit‟ to mean carrying of people or things from one place to another;

the conveyance of passengers on public transport; an act of passing through or

across a place. „Transited‟ or „transiting‟ would mean pass across or through.

Similarly, the word „transition‟ means the process of changing from one state or

condition to another. Likewise, the adjective „transitory‟ means not permanent;

short-lived. An useful example of the above expression is transit visa which

means a visa allowing its holder to pass through a country only, not to stay there.

The word „transit‟ has also been defined in the Black‟s Law Dictionary, 11th

Edition, to mean the transportation of goods or person from one place to another;

passage; the act of passing.

22. The Hon‟ble Apex Court in Priya Indoria (supra) held that the word

„transit‟ is derived from the Latin word „transitus‟ which means „passage from

one place to another‟. Since the word „transit‟ is an undefined expression in Cr

P.C, recourse may be had to the dictionary meaning of the word „transit‟. The

Concise Oxford English Dictionary, 10th Edition, Revised, defines the word

17

„transit‟ to mean carrying of people or things from one place to another; the

conveyance of passengers on public transport; an act of passing through or

across a place. „Transited‟ or „transiting‟ would mean pass across or through.

Similarly, the word „transition‟ means the process of changing from one state

or condition to another. Likewise, the adjective „transitory‟ means not

permanent; short-lived. An useful example of the above expression is transit

visa which means a visa allowing its holder to pass through a country only, not

to stay there. The word „transit‟ has also been defined in the Black‟s Law

Dictionary, 11th Edition, to mean the transportation of goods or person from

one place to another; passage; the act of passing”.

23. In Priya Indoria (supra), the Hon‟ble Apex Court held that prior to

effecting the arrest outside a particular jurisdiction, the police is obligated to

secure the transit remand i.e. the remand of the accused, for taking him from

one place to another in their own custody, usually for the purpose of producing

him before the concerned magistrate who has jurisdiction to try/commit the

case. The primary purpose of such a remand is to enable the police to shift

the person in custody from the place of arrest to the place where the matter

can be investigated and tried.

24. In Priya Indoria (supra), the Hon‟ble Apex Court was mainly

considering, „transit anticipatory bail‟, it was observed that the expression

„anticipatory bail‟ is not defined in the Cr PC then it is quite but natural that the

larger expression „transit anticipatory bail‟ would not find any exposition in the

Cr.P.C. It was observed that the need and necessity for transit anticipatory

18

bail occasioned because the police has been conferred power under the Cr

PC to pursue an accused in other jurisdictions. Immediately upon affecting the

arrest of a person outside the jurisdiction where the offence is registered, the

police is obligated to secure a transit remand. The arrested person has to be

produced before the nearest magistrate. If such a magistrate finds that he has

no jurisdiction to try the case in which the accused has been arrested, he may

order the accused to be forwarded to a magistrate having the jurisdiction to try

the case or to commit it for trial. Thus, the police is obligated to secure a

transit remand of the accused for taking him from the place where he is

arrested to the place where the crime is registered, for production before the

competent magistrate in terms of the requirement of Article 22.

25. On a careful reading of the judgment in Priya Indoria (supra) as quoted

above, we are of the view that the question of effect of non production of the

arrested person before the nearest Magistrate (non jurisdictional), where such

arrested person is produced before the Jurisdictional Magistrate within 24

hours of his arrest, excluding the time necessary for journey from the place of

arrest to the Court of the Magistrate, was neither involved nor was considered.

Para 89 makes it evident that the Apex Court in Priya Indoria (supra) was

concerned with, „transit anticipatory bail‟.

26. In the present case, the detenu was not produced before the non

Jurisdictional Magistrate. There was no transit remand taken but the detenu

was produced before the jurisdictional Magistrate within 24 hours of his arrest.

19

In Priya Indoria (supra) such was not the issue and in the present case

„transit anticipatory bail‟ is not the issue.

27. Priya Indoria (supra) is helpful for it explains what the word transit

„means and it also explains, that immediately upon effecting the arrest of a

person outside the jurisdiction where the offence is registered, the police is

obligated to secure the transit remand. The arrestee person has to be

produced before the nearest Magistrate. If such a Magistrate finds that he has

no jurisdiction to try the case (non jurisdictional Magistrate), he may order the

accused to be forwarded to a Magistrate having the jurisdiction to try the case

or to commit it for trial. The same has been explained and laid down in terms

of the requirement of Article 22 of the Constitution of India.

28. In Gautam Navlakha vs. Natinal Investigation Agency

9

, the Hon’ble Apex

Court held that the remand order be it a transit remand order, is one which is

passed under Section 167 Cr.P.C. and though it may be for the production of

the arrested person, it involved authorising continued detention within the

meaning of Section 167 Cr.P.C. A person may be arrested by a police officer

in any part of India. Under Section 56 the person arrested without warrant is

to be sent before the Magistrate having jurisdiction or before the officer in

charge of a police station. It is thereafter, that Section 57 forbids the person so

arrested: i. from being detained for a period more than what is reasonable. ii.

from being detained beyond 24 hours from the time of arrest, excluding the

time necessary for the journey from the place of arrest to the Magistrate Court.

9

(2022)13 SCC 542

20

29. The Hon‟ble Apex Court in Gautam Navlakha (supra) further held that

a transit remand cannot be „judicial custody‟ as the police is exclusively

entrusted with the man, no doubt to produce him before the Magistrate having

jurisdiction. It is therefore, police custody. The Hon‟ble Apex Court referred to

Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh

10

, (upon which

learned Government Pleader also placed reliance), in which it was held that

keeping in view the provisions of Section 167(2), the Magistrate before whom

the accused is produced for the purpose of remand, whether he has

jurisdiction or not to try the case, to order the detention of the accused either

in police custody or in judicial custody for a term not exceeding 15 days in the

whole.

30. Paras 86 to 95 of Gautam Navlakha (supra) read as under:

“86. The Respondent contends that the transit remand order is not a

remand for detention under Section 167 of the Cr.P.C. but only one for

production. Reliance is placed on Section 57. It is in other words, pointed

out that Section 57 contemplates that in the absence of ‘special order’

under Section 167, a person arrested without warrant must be produced

within 24 hours excluding the time taken for journey from the place of

arrest to the place where the Magistrate is located. Therefore, if a ‘special

order’ under Section 167 is obtained, it is for the purpose of extending the

time in Section 57 for production of the arrestee.

87. Per contra, Appellant contends that Section 167 specially covers

cases where a judicial Magistrate who has no jurisdiction to try a case,

can order a remand. There is no other provision for ordering transit

remand.

88. In this case the transit remand was ordered on 28.08.2018. The

Appellant was to be produced under the same on 30.08.2018 before

10

(1986) 3 SCC 141

21

the Magistrate in Pune. A person may be arrested by a police officer in

any part of India (Section 48 of Cr.P.C.). Under Section 56 the person

arrested without warrant is to be sent before the Magistrate having

jurisdiction or before the officer in charge of a police station. It is

thereafter, that Section 57 forbids the person so arrested:

i. from being detained for a period more than what is reasonable.

ii. from being detained beyond 24 hours from the time of arrest, excluding

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

Magistrate Court.

89. Now, the ‘Magistrate Court’ referred to in Section 57 is the Magistrate

competent to try the case. Section 57 contains the peremptory limit of 24

hours exclusive of the period for journey, in the absence of ‘special order’

under Section 167.

90. The words ‘special order’ is not found in Section 167 of the Cr.P.C.

Therefore, could it not be said that but for Section 57 permitting the

Magistrate to allowing time by passing an order under Section 167,

detention in violation of Section 57 would be rendered illegal? What is the

nature of the custody on the basis of the special order under Section 167

referred to in Section 57? Is it police custody or is it judicial custody? Is it

any other custody? Will the period of remand for statutory bail begin from

the date of this ‘special order’? Will it begin only when the competent

Magistrate orders remand?

91. Now as far as this case is concerned, we notice findings of the High

Court of Delhi as follows: (para 11 and para 15)

“(11) Mr. Navare next tried to draw a distinction between the scope of the function

of a Magistrate before whom an application for transit remand is moved and the

jurisdictional Magistrate who should be approached for an order of remand in

terms of Section 56 of the Cr.P.C. According to Mr. Navare, at the stage of transit

remand the concerned Magistrate would not be required to satisfy himself

anything more than whether an offence is made out and whether the Police Officer

seeking the remand is in fact the one authorized to do so.”

“(15) Therefore, when a person who after arrest is required to be produced before

a jurisdiction Judicial Magistrate is detained in a place which is away from that

jurisdiction, and therefore cannot be produced before the jurisdictional Magistrate

within 24 hours, as mandated both by Article 22(2) of the Constitution and by

Section 57 Cr.P.C., he will be produced before the ‘nearest Judicial Magistrate’

together with ‘a copy of the entries in the diary’. Therefore, even before a

Magistrate before whom a transit remand application is filed, the mandatory

requirement of Section 167 (1) Cr.P.C. is that a copy of the entries in the case diary

should also be produced. It is on that basis that under Section 167 (2) such ‘nearest

Judicial Magistrate’ will pass an order authorising the detention of the person

arrested for a term not exceeding 15 days in the whole. Where he has no

22

jurisdiction to try the case and he finds further detention unnecessary, he may

order the accused to be forwarded to the jurisdictional Magistrate.”

92. In fact, as already noticed the submission of the State of

Maharashtra was also that once a person was in judicial custody a writ

of habeas corpus would not lie which also was rejected.

93. Now, the question may persist as to whether the remand pursuant

to a transit remand is to police custody or judicial custody. It cannot

be judicial custody as the police is exclusively entrusted with the man

no doubt to produce him before the Magistrate having jurisdiction. It

is therefore, police custody. Could the police be engaged in

questioning/ investigating the case by interrogating the accused on the

basis of the transit order either before, embarking on the journey or

during the course of the journey and after the journey before

producing him? If it is thought that during the journey it is

impermissible, then such interrogation would equally be

impermissible during the time of journey permitted without obtaining

an order under Section 167. If also during such journey the accused

volunteers with a statement otherwise falling under Section 27 of

Evidence Act, it would be one when the accused is in the custody of

the police. If it is police custody then, the order of the Magistrate

granting transit remand would set the clock ticking in terms of (1986)

3 SCC 141 to complete the period for the purpose of default bail.

94. We may also notice that the interplay of Section 57 and 167 was

considered in the judgment of this Court in Chaganti Satyanarayana

(supra). It was held as follows:

“(12) On a reading of the sub- sections (1) and (2) it may be seen that sub-section

(1) is a mandatory provision governing what a police officer should do when a

person is arrested and detained in custody and it appears that the investigation

cannot be completed withing the period of 24 hours fixed by Section 57. Sub-

section (2) on the other hand pertains to the powers of remand available to a

Magistrate and the manner in which such powers should be exercised. The terms

of sub-section (1) of Section 167 have to be read in conjunction with Section 57.

Section 57 interdicts a police officer from keeping in custody a person without

warrant for a longer period than 24 hours without production before a Magistrate,

subject to the exception that the time taken for performing the journey from the

place of arrest to the magistrate’s court can be excluded from the prescribed

period of 24 hours. Since sub-section (1) provides that if the investigation cannot

be completed within the period of 24 hours fixed by Section 57 the accused has to

be forwarded to the magistrate along with the entries in the diary, it follows that a

police officer is entitled to keep an arrested person in custody for a maximum

period of 24 hours for purposes of investigation. The resultant position is that the

initial period of custody of an arrested person till he is produced before a

Magistrate is neither referable to nor in pursuance of an order of remand passed

by a magistrate. In fact the powers of remand given to a magistrate become

exercisable only after an accused is produced before him in terms of sub-section (1)

of Section 167.” “(13) Keeping proviso (a) out of mind for some time let us look at

23

the wording of sub-section (2) of Section 167. This sub-section empowers the

magistrate before whom an accused is produced for purpose of remand, whether

he has jurisdiction or not to try the case, to order the detention of the accused,

either in police custody or in judicial custody, for a term not exceeding 15 days in

the whole.”

95. We would hold that the remand order be it a transit remand

order is one which is passed under Section 167 of the Cr.P.C. and

though it may be for the production of the Appellant, it involved

authorising continued detention within the meaning of Section

167.”

31. Article 22(2) of the Constitution of India requires 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 and no such person shall be detained in custody beyond the said

period without the authority of a Magistrate. When the person is arrested by

the police outside the jurisdiction where the offence is registered, the police

has to comply with the mandatory provisions of Article 22 of the Constitution of

India including Article 22(2), to ensure the production of the person arrested

within 24 hours of such arrest before the „nearest Magistrate‟.

32. The non jurisdictional Magistrate, may be the nearest Magistrate, than

the jurisdictional Magistrate. There may also be a situation where the arrested

person can be produced before the jurisdictional Magistrate, within 24 hours of

the arrest, though he is not the „nearest Magistrate‟ in terms of distance from

the place of arrest. In such a case, whether the police is necessarily to

produce the detenu before the nearest non jurisdictional Magistrate, to take

the transit remand first, before producing before the Jurisdictional Magistrate,

and in case of no such compliance would there be violation of the provisions

24

of Article 22(2)? There may be the cases, in which the person arrested is

outside the jurisdiction where the offence is registered and the nearest

Magistrate (non-jurisdictional) can be approached for transit remand only after

spending more time, than the time taken if directly produced before the

Jurisdictional Magistrate though the Jurisdictional Magistrate is at a far

distance, may be for various prevailing circumstances, eg., geographical,

transportation, road condition, other infrastructural factors; the location of the

non jurisdictional Magistrate in opposite direction to the place of Jurisdictional

Magistrate etc.

33. When the police is able to produce the arrested person before the

jurisdictional Magistrate within the specified time, and in such a case, the

police even if it does not produce the arrested person before the non

jurisdictional Magistrate to take the transit remand but produces the arrested

person before the jurisdictional Magistrate within the specified time of 24

hours, there shall in our view, be no violation of the fundamental rights of the

arrested person under Article 22(2) of the Constitution of India.

34. We are of the view that the expression „nearest Magistrate‟ in Article

22(2) of the Constitution of India is not necessarily related to the „distance‟

from the place of arrest to the place of jurisdictional Magistrate or non

jurisdictional Magistrate but the expression „nearest‟ refers to, in terms of the

time taken for production of the person arrested before the jurisdictional

Magistrate i.e 24 hours of arrest. The „nearest Magistrate‟ is referable to „time‟

and not the „distance‟. In our view even if in respect of the „distance‟ there is

25

the nearest Magistrate (non jurisdictional) compared to the jurisdictional

Magistrate, which is at far distance, but if the person arrested, the police is

able to produce within 24 hours before the jurisdictional Magistrate and so

produces such person before the jurisdictional Magistrate, there shall be no

violation of the fundamental rights of the arrested person neither under Article

22(2) of the Constitution of India nor under the provisions of the BNSS.

35. The Bombay High Court in Vachhalabai vs. State of Maharashtra

11

,

held that in view of Article 22(2) of the Constitution of India, there being no

scope left to the police to keep arrested person in their custody for the

purpose of investigation for more than 24 hours excluding the time required for

taking the accused from the place of arrest to the court of Magistrate and only

to ensure such observation, the term „nearest Magistrate‟ is used and the

period of 24 hours is given in relation to the term „nearest Magistrate‟. It

cannot be read separately from this term. Para 26 of Vachhalabai (supra)

reads as under:

“26. The aforesaid reasons given to have the Article in the present form show that no

scope is left to police to keep arrested person in their custody for the purpose of

investigation for more than 24 hours excluding the time required for taking the accused

from the place of arrest to the Court of Magistrate. Only to ensure such observance,

mandate, the term "nearest magistrate" is used and specific period is also given. The

period of 24 hours is given in relation to the term "nearest magistrate" and it cannot

be read separate from this term. Further, as per the aforesaid reasoning given, "nearest

magistrate" cannot be presumed as the Magistrate having jurisdiction over the crime, in

which the accused is arrested…………”

11

2019 SCC OnLine Bom 2937

26

36. If the person arrested can be produced within 24 hours of arrest before

the jurisdictional Magistrate, it would not be necessary for the police to first

produce the person arrested before the non-jurisdictional nearest Magistrate

to take the transit remand and then to produce before the jurisdictional

Magistrate for remand. Though the police may be obligated to take the

transit remand for the purpose of ensuring that, there may not result violation

of Article 22(2) of the Constitution of India, in case there is delay in production

before the Jurisdictional Magistrate and that may be on the safer side for the

police to go for transit remand, but, if the transit remand is not taken and the

arrested person is produced before the jurisdictional Magistrate within 24

hours of arrest then there shall be no violation of Article 22(2) of the

Constitution of India. The fundamental right of the person arrested to be

produced before the nearest Magistrate shall not be violated. When such

compliance can be made without the violation of the period specified before

the jurisdictional Magistrate the person arrested can be directly produced

before the jurisdictional Magistrate, without any transit remand, from the

Magistrate from the place of arrest falling outside the territorial jurisdiction of

the Jurisdictional Magistrate.

37. In Sat Prakash Yadav (supra), the Delhi High Court held that the

purpose of transit remand is to get sufficient time to produce the accused

before the concerned court within the stipulated period of 24 hours as

provided under Article 22(2) of the Constitution of India. In the said case, the

appellant (accused) could be brought to Delhi within one hour of the arrest,

27

the Delhi High Court held that it was not essential to obtain transit remand

from the court of the Magistrate at Noida (the place of arrest). In Sat Prakash

Yadav (supra), the Delhi High Court held as under in paras 38 & 39:

“38. The learned counsel for the appellant draws out attention to certain

irregularities committed by the police. He urged that although the

appellant was arrested from Noida, U.P. but he was not produced before

the Ilaqa Magistrate for transit remand. He urges that the permission

from the local court of Metropolitan Magistrate, Delhi was also not

taken to take the appellant to Farukhabad which was in violation of the

police rules.

39. Normally, any person who is arrested outside the District or outside

the State is produced before the Chief Judicial Magistrate/Chief

Metropolitan Magistrate for obtaining the transit remand. The purpose

of transit remand is to get sufficient time to produce the accused

before the concerned Court within the stipulated period of 24 hours

as provided under Article 22 (2) of the Constitution of India. Since

the appellant could be brought to Delhi just within one hour, it was

not essential to obtain transit remand from the Court of the

concerned Magistrate at Noida, Gautam Budh Nagar. Similarly, no

specific permission was required to make any particular recovery from

Farukhabad when the appellant was in police custody.”

38. In Uttam Daga @ Uttam Kumar Daga (supra), the Patna High Court

held that it is only if the journey is likely to take more than 24 hours that the

person arrested has to be produced before a local Magistrate and a transit

remand is obtained. In Article 22(2) of the Constitution of India, in computing

the period of 24 hours, the travel time for the arrested persons to be produced

before the jurisdictional Court is to be excluded. If the arrested person cannot

be produced before 24 hours, then the arrested person has to be produced

before the nearest Magistrate. In the said case, the accused was produced

within 24 hours of his arrest before the jurisdictional Magistrate. The Patna

High Court held that the requirement of production before the nearest

Magistrate of the place of arrest was not mandatory.

28

39. In Uttam Daga @ Uttam Kumar Daga (supra), the High Court of

Judicature at Patna held as under in Paras 91 to 94:

“90. Final conclusion of this writ petition, therefore, depends upon the

interpretation of the term "nearest Magistrate". Does it mean "nearest

Magistrate" having his seat within the territorial jurisdiction of the place of

arrest or the term encompasses the authority of the Magistrate having

jurisdiction to try the case. Requirement of production of the accused before the

nearest Magistrate in the locality where his arrest comes into play when a

person who after arrest is required to be produced before the jurisdictional

Judicial Magistrate is detained in a place which is far away from that jurisdiction

and therefore cannot be produced before the jurisdictional Magistrate within 24

hours as mandated both by Article 22(2) of the Constitution and by Section 57 of

the Code of Criminal Procedure, now Section 58 of the BNSS. In such

circumstances, he will be produced before the nearest Judicial Magistrate

together with a copy of the entries in the diary. Therefore, even before a

Magistrate before whom a transit remand application is filed, the mandatory

requirement of Section 167 (1) Cr.P.C., now Section 187 of BNSS, is that a copy

of the entries in the case diary should also be produced. It is on the basis of the

entries in the case diary, under Section 167 (2), such "nearest Judicial

Magistrate" while passing an order authorizing detention of person arrested for

a term not exceeding 15 days in a whole. Where he has no jurisdiction to try the

case and he finds further detention unnecessary, he may order the accused to

be produced before the Jurisdictional Magistrate. This principle is elaborately

dealt with in Gautam Navlakha (supra). The issue was decided by the Hon'ble

Supreme Court and this Court has already referred to paragraph 102 of the

Supreme Court's judgment in Gautam Navlakha (supra) that the nearest

Magistrate may or may not have the jurisdiction to try the case. Conversely, this

Court shall not commit any wrong to held that if the arresting officer has the

scope to produce the arrested person before the jurisdictional Magistrate within

24 hours for an order of remand, requirement of Article 22 (2) cannot be said to

be violated.

91. In Sat Parkash Yadav (supra), it is held by the Division Bench of the

Delhi High Court that any person who is arrested outside the district or

outside the State is produced before the Chief Judicial Magistrate/Chief

Metropolitan Magistrate for obtaining the transit remand. The purpose of

transit remand is to get sufficient time to produce the accused before the

concerned Court within the stipulated period of 24 hours as provided under

Article 22(2) of the Constitution of India. Since the appellant could be

brought to Delhi just within one hour, it was not essential to obtain transit

remand from the Court of the concerned Magistrate at Noida, Gautam

Budha Nagar.

29

92. The case in hand is absolutely similar on factual circumstances. The

DOE found that the accused could be brought to Patna immediately after

his arrest within one hour and ten minutes by air. The DOE took recourse

of the said path and produced the accused before the learned Chief Judicial

Magistrate, Patna along with an application for remand in the custody of

ED. The learned Chief Judicial Magistrate passed an order of custodial

remand with the DOE on perusal of the application for remand. The

application contained elaborate statement regarding reasons to believe and

grounds of arrest. I have no hesitation to rely on the Division Bench's

decision of the Hon'ble Delhi High Court in Sat Parkash Yadav (supra)

because no contrary view has been taken on this issue till date by the

Hon'ble Supreme Court.

93. The learned Sr. Advocate appearing on behalf of the petitioner lays

great stress on the provisions contained in Section 58 of the BNSS and

submits that Article 22(2) of the Constitution read with Section 58 of the

BNSS was violated by the DOE in the instant case.

94. A conjoint reading of both the above provisions show that in terms of

Article 22 of the Constitution itself, after excluding the time taken in the

journey, a person arrested in Raipur by the CBI, pursuant to a case

registered in Delhi, has to be produced before a Magistrate within 24

hours. It is only if the journey is likely to take more than 24 hours that the

person arrested has to be produced before a local Magistrate and a transit

remand is obtained. In Article 22(2) of the Constitution, in computing the

period of 24 hours, the travel time for the arrested persons to be produced

before the jurisdictional Court is to be excluded. If the arrested person

cannot be produced before 24 hours, then he has to be produced

before the nearest Magistrate.

95. In the instant case, the accused was produced within 24 hours of

his arrest. Therefore, the requirement of his production before the

nearest Magistrate of the place of arrest was not mandatory.”

40. The learned counsel for the petitioner placed reliance in Muhammed

Ashfaq C (supra) of the High Court of Kerala at Ernakulam, which considered

“transit remand” and constitutional safeguards”. Paragraphs 14 to 17 of

Muhammed Ashfaq C (supra) read as under:

“14. Section 45 of the BNSS (48 of the Cr.P.C.) empowers the police to pursue

an accused beyond their territorial jurisdiction. A police officer authorised to

arrest without warrant may, for that purpose, pursue the individual anywhere in

India. However, before effecting arrest outside the local jurisdiction, the police

are obliged to secure a transit remand, thereby enabling them to lawfully

convey the accused from the place of arrest to the jurisdiction where the

30

offence is registered and where investigation and trial may proceed. The

primary object of such remand is to facilitate the lawful transfer of custody

from one jurisdiction to another. In Priya Indoria v. State of Karnataka [(2024)

4 SCC 749], while considering the scope of anticipatory bail under Section 438

Cr.P.C. in relation to FIRs registered outside territorial jurisdiction, the

Supreme Court held that immediately upon arrest outside the jurisdiction where

the crime is registered, the police are duty-bound to obtain a transit remand for

production of the accused before the competent Magistrate, in conformity with

Article 22. Thus, obtaining a transit warrant is mandatory for the police to

claim protection under Article 22(2); failure to do so, and producing the

accused before the jurisdictional Magistrate beyond twenty-four hours without

such warrant, constitutes a violation of Article 22(2). (See Vishal Manohar

Mandrekar v. State of Telangana, 2024 SCC OnLine TS 69).

15. A reading of Section 58 read with Section 187 of BNSS shows that the

production before the Magistrate is to the nearest Magistrate and is not with

respect to the jurisdictional Magistrate. Read in the same light, Sections 47 and

48 of BNSS, which deal with Article 22(1) have to be construed consistent

with the mandate of Article 22(2). For Article 22(1), it cannot be a

jurisdictional Magistrate, whereas for the purpose of Article 22(2), it has to be

the nearest Magistrate. This is so because the fundamental aspect that has to be

ascertained on production in the event of an arrest and detention is the very

'legality' of the arrest and not the question whether the accused is liable to be

granted bail or not. The contextual milieu arising from a construct of the above

provisions is that the checks and balances as provided for in Article 22(1) will

have to be met when the arrested person is produced before the Magistrate for

the first time, i.e. the nearest Magistrate (who may or may not be a

jurisdictional Magistrate) upon arrest and detention.

16. A transit remand is nevertheless a remand and is handing over to police

custody. That transit remand amounts to police custody is established by the

judgment of the Supreme Court in Gautam Navlakha v. National Investigating

Agency [(2022) 13 SCC 542]. In that decision, the Supreme Court

characterized the transit remand as police custody under Section 167 of Cr.P.C

Without legitimizing the arrest of the person, one cannot be handed over to

police custody. Essentially therefore, the Magistrate to whom the person is

produced after the arrest-the mandatory requirement of ascertaining whether

the very arrest is illegal cannot be shifted to the jurisdictional Magistrate. Any

such construct would render the very appreciation of Article 22(2) at two

different points of time by two different Magistrates. If the import of "transit

remand" is "police custody", not to read into Section 48 of BNSS would be a

dilution of Article 22 itself.

17. In Vihaan Kumar (supra), it was specially held that when an arrested

person is produced before a judicial Magistrate for remand, it is the duty of the

Magistrate to ascertain whether compliance with Article 22(1) and the

mandatory safeguards has been made and when a violation of Article 22(1) is

established, it is the duty of the court to forthwith order the release of the

accused. The above findings consciously do not make any reference to a

jurisdictional Magistrate. Instead, and which is also consistent with the

31

constitutional guarantees, the emphasis is on the arrested person being brought

before a judicial Magistrate. This is so because the moment it is established

that there is non- compliance with Article 22(1), no further orders can be

issued. When it may be true that the main objective of 'transit remand" is to

facilitate the production of the arrested person before the competent

Magistrate, the facilitative mechanism cannot trammel Article 22(1) of the

Constitution. Thus, when a person who is arrested is brought before a non-

jurisdictional Magistrate even if only for the purpose of ordering a transit or

transit remand, it is imperative that the grounds of arrest be communicated both

to the arrestee and to his relative or friend, as mandated under Article 22(1) of

the Constitution and Sections 47 and 48 of the BNSS, prior to such

production.”

41. In Muhammed Ashfaq C (supra), it is evident, from para 14 as

reproduced above that on consideration of Priya Indoria (supra), the

High Court of Kerala itself held that “obtaining a transit warrant is

mandatory for the police to claim production under Article 22(2); failure

to do so and to produce the accused before the jurisdictional

Magistrate beyond 24 hours without such warrant constitutes a

violation of Article 22 of the Constitution of India. So, what the Kerala

High Court has held that also does not support the arguments of the

learned counsel for the petitioner. As per the said judgment, the mere

fact that the transit remand was not taken, of its own, would not render

the arrest illegal or the remand by Jurisdictional Magistrate as, illegal.

It would be so, if there is failure to take the transit remand and also to

produce the arrestee before the jurisdictional Magistrate within 24

hours of the arrest. The Kerala High Court held that the “failure to do

so and producing the accused beyond 24 hours, constitutes a violation

of Article 22(2) of the Constitution of India”. In the present case, the

detenu was produced before the jurisdictional Magistrate within 24

32

hours. There is no dispute raised on that aspect. It is an admitted

case of the petitioner that the detenu was produced before the

jurisdictional Magistrate within 24 hours of the arrest. So, even

applying Muhammed Ashfaq C (supra), the failure to obtain the transit

remand would not constitute the violation of Article 22(2) of the

Constitution of India, as the accused was produced before the

jurisdictional Magistrate within and not beyond 24 hours of the arrest.

In the present case remand is within 24 hours.

42. The contention of the learned counsel for the petitioner that the

transit remand is mandatory to produce the detenu before the

jurisdictional Magistrate, based on Muhammed Ashfaq C (supra) is

not correct. It has not been so held that the transit remand is must or

mandatory.

43. Based on Muhammed Ashfaq C (supra), learned counsel for

the petitioner contended that when a person who is arrested is brought

before the non jurisdictional Magistrate even if only for the purpose of

ordering a transit or transit remand, it is imperative that the grounds of

arrest be communicated both to the arrestee and to his relative or

friend, as mandated under Article 22(1) of the Constitution and

Sections 47 and 48 of the BNSS, prior to such production. So far as

the compliance with the mandatory requirements under Article 22(1) of

the Constitution of India are concerned, regarding the communication

33

of the grounds of arrest to the arrestee and to his relatives or friends or

family, there cannot be any dispute on that settled legal proposition. It

is also not in dispute that if the arrestee is produced before the nearest

Magistrate (non jurisdictional), the said compliance is to be seen by

such Magistrate considering transit remand. The compliance with the

constitutional requirements under Article 22(1), is mandatory

irrespective of the production of the arrestee, before the jurisdictional

Magistrate for remand or before the non jurisdictional Magistrate for

transit remand. Such Magistrate before whom the arrestee is produced

for remand, has to satisfy that there is no violation of the fundamental

right under Article 22(1) of the Constitution of India.

44. However, the said principle is not violated, in the facts of the

present case for two reasons (1) the detenu was never produced

before the Magistrate for transit remand (non-jurisdictional Magistrate)

and (2) the learned counsel for the petitioner emphasized upon the

only ground of challenge that because of the non-production of the

detenu for transit remand before the nearest Magistrate, the remand by

the jurisdictional Magistrate, without first obtaining the transit remand,

is invalid. He did not argue that there was any non-compliance with the

requirement under Article 22(1) of the Constitution of India. On the

contrary, he submitted that, there was such a compliance. The remand

report containing the grounds of arrest was served to the detenu and

family, before remand by the jurisdictional Magistrate. He submitted

34

that in view of the Hon‟ble Apex Court judgment(s) in D.K. Bosu

(supra) and Mihir Rajesh Shah (supra), when the remand report

containing the ground is served to the detenu in not less than two

hours before the remand, there is sufficient compliance and in view

thereof he submitted that on that aspect he was not raising any

submissions.

45. Learned counsel for the petitioner next submitted that in

Sandeep Kumar (supra), the Delhi High Court accepted the

suggestions of the Committee constituted by the Delhi High Court and

directed that those be adopted for implementation by the

Commissioner of Police, Delhi, as well as the Director General of

Police, Uttar Pradesh in their respective jurisdiction. He submitted that

Sandeep Kumar (supra) is of Persuasive value but even a judgment

of the other High Court, having persuasive value, when it is cited

before a different High Court, such High Court must record its

agreement or dissent, following the judicial decorum and propriety and

it is required of such High Court, to specify, in the event of its contra

view, the reasons on discussion of the judgment of persuasive value.

He placed reliance in para 24 of Pradip J Mehta (supra) to support

that contention. Para 24 is as follows:

“24. Although the judgments referred to above, were cited at the bar in

the High Court, which were taken note of by the learned Judges of the

Bench of the High Court, but without either recording its agreement or

35

dissent answered the two questions referred to it in favour of the

Revenue. Judicial decorum, propriety and discipline required that the

High Court should, especially in the event of its contra view or

dissent, have discussed the aforesaid judgments of the different High

Courts and recorded its own reasons for its contra view. We quite see

the fact that the judgments given by a High Court are not binding on

the other High Court(s), but all the same, they have persuasive value.

Another High Court would be within its right to differ with the view

taken by the other High Courts but, in all fairness, the High Court

should record its dissent with reasons therefor. The judgment of the

other High Court, though not binding, have persuasive value which

should be taken note of and dissented from by recording its own

reasons.”

46. The constitution of the Committee by one High Court, for the specified

purpose and the recommendations, accepted by that High Court, as also the

directions issued by that High Court, in our view, would not be the proposition

of law laid down, even for a persuasive value for the other High Court. It is

the principle of law or the interpretation given, that may only have persuasive

value. The recommendations of a Committee constituted by a High Court,

may even not be accepted by that very High Court. The recommendations of

a Committee in the State may be taking into account various factors as

prevailing in that State of the particular High Court and without detailed

examination of various factors in the other State of the different High Court, it

may not be safe to act upon.

47. However, on a careful consideration of the judgment in Sat Prakash

Yadav (supra), we find that one of the recommendations made by the

36

Committee, and accepted by the Delhi High Court, in the case of interstate

arrest, vide para 15 (10) of the judgment is as under:

“Endeavour should be made to obtain transit remand after

producing the arrestee before the nearest Magistrate unless

exigencies of the situation warrant otherwise and the person can

be produced before the Magistrate having jurisdiction of the case

without (2) infringing the mandate of Section 56 and 57 of Cr.P.C

within 24 hours”.

The recommendation of the Committee as such is that, the endevour should

be made by the police to obtain transit remand unless the police is in a

position to produce the arrestee before the jurisdictional Magistrate within 24

hours. So, conversely, we may say that if the police is in a position to produce

the arrestee within 24 hours before the jurisdictional Magistrate, and produces

within 24 hours of arrest excluding the journey time, no endevour should be

made to obtain the transit remand. The aforesaid recommendation as

accepted by the Delhi High Court infact negatives the argument of the learned

counsel for the petitioner.

48. In D.K. Basu vs. State of West Bengal

12

, the safeguards and the

preventive measures have been laid down in the cases of arrest or detention,

but, the said principles are not attracted since the challenge to the order of

remand is not on the ground of violation of any of those preventive measures.

Similarly, Mihir Rajesh Shah (supra), does not deal with the issue involved

i.e production of the detenu within 24 hours of arrest before the jurisdictional

12

1997 KHC 245

37

Magistrate, without taking the transit remand. These judgments are therefore

not on the point.

49. Thus, considered, we conclude that the order of remand by the

jurisdictional Magistrate is valid. It is not invalid on the ground of challenge

that the transit remand was not taken from the nearest non-jurisdictional

Magistrate, after arrest, for production before the jurisdictional Magistrate. The

detenu was produced within 24 hours of his arrest before the Jurisdictional

Magistrate and was granted remand. It is not mandatory to obtain transit

remand to produce the arrested person before the Jurisdictional Magistrate for

remand. If the transit remand is not taken but still the arrested person is

produced before the Jurisdictional Magistrate within 24 hours of his arrest,

excluding the journey time, there would be no violation of Article 22(2) of the

Constitution of India. The detenu is, in detention pursuant to the remand

order, which is valid and his detention is not an illegal detention.

50. We answer point No.A in as per Para 49 (supra).

51. In Manubhai Railal Patel TR. Ushaben vs. State of Gujarat and

others

13

, referring to Ummu Sabeena v. Stae of Kerala (2011) 10 SCC 781)

and various other judgments it was held 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

13

2013 1 SCC 314

38

wholly illegal. Para 32 of Manubhai Railal Patel TR. Ushaben (supra) is as

follows:

“32. Coming to the case at hand, it is evincible that the arrest had taken place a

day prior to the passing of 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 the

cases of B.R. Rao (supra) and Kanu Sanyal (supra), the 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.”

39

52. We answer Point-B that the order of remand is valid. The writ of Habeas

Corpus cannot be issued. The writ petition deserves dismissal.

V. Conclusions:

53. Our conclusions on Point-A is as per Paras 49, 50 and on Point-B as per

Paras 51 to 52 (supra) respectively.

VI. Result:

54. In the result, the writ petition for Habeas Corpus is dismissed. No order

as to costs.

____________________________

RAVI NATH TILHARI,J

____________________

ALAPATI GIRIDHAR,J

Date:13.10.2026.

Issue CC by today.

Note:

L.R. copy to be marked.

B/o.Gk.

Whether the order is :

Speaking Yes/No / Reasoned Yes/No

Reportable Yes/No / Non-Reportable Yes/No

40

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HONOURABLE SRI JUSTICE ALAPATI GIRIDHAR

7

WRIT PETITION No.26235 OF 2026

Date:13.10.2026

Gk