Re-Arrest Without Magistrate's Permission Illegal Where Earlier Arrest Vitiated For Failure To Furnish Grounds Of Arrest: Delhi High Court
The Delhi High Court has held that re-arrest of an accused is illegal where the procedure mandated by the Supreme Court is not followed after his earlier release on account of violation of the constitutional safeguards under Article 22(1) of Constitution of India.A division bench comprising Justice Navin Chawla and Justice Arun Bhardwaj observed that once an accused is released from custody...
The Delhi High Court has held that re-arrest of an accused is illegal where the procedure mandated by the Supreme Court is not followed after his earlier release on account of violation of the constitutional safeguards under Article 22(1) of Constitution of India.
A division bench comprising Justice Navin Chawla and Justice Arun Bhardwaj observed that once an accused is released from custody for failure to furnish grounds of arrest and violation of Article 22(1), the investigating agency cannot simply re-arrest him at its own discretion.
The Court was dealing with a habeas corpus petition filed by one Manoj Chaudhary, who challenged his custody in connection with an FIR registered at Police Station New Usmanpur.
The Bench noted that under the procedure laid down by the Supreme Court, if the investigating agency continues to consider custodial interrogation necessary after an accused has been released for violation of Article 22(1) of Constitution or India, it must file an application before the concerned Magistrate setting out the reasons for re-arrest and the necessity for the same.
As per the ruling, the application must also contain an explanation for the earlier non-supply of grounds of arrest and carry the endorsement of the immediate superior authority.
The Supreme Court has further made it clear that the power to re-arrest cannot be left to the discretion of the same authority which had violated Article 22(1).
The ruling also says that the proposed re-arrest must have judicial imprimatur, with the Magistrate satisfying itself that there were bona fide reasons for the earlier failure to furnish the grounds of arrest and that re-arrest is necessary.
In the present case, Chaudhary was initially detained on July 20 and was produced before the Judicial Magistrate First Class on July 23.
The Magistrate had noted that the grounds of arrest supplied to Chaudhary did not bear the date or time when they were handed over to him and did not contain details of the incident for which he had been arrested. He was accordingly directed to be released on bail.
Chaudhary was, however, re-arrested on August 21. His challenge to the re-arrest before the Additional Sessions Judge was rejected, following which he was remanded to police custody for two days.
Before the High Court, the State conceded that the procedure mandated in Mihir Rajesh Shah case and subsequently affirmed in Jaskaran Jeet Singh Deol case was not followed.
The State informed the Court that the Investigating Officer had neither forwarded a report to and sought permission from the superior authority nor filed an application before the concerned Court seeking permission to re-arrest Chaudhary and stating the necessity for such re-arrest.
The Bench observed that Chaudhary was re-arrested only on the ground that offences under the Protection of Children from Sexual Offences Act, 2012 were subsequently added to the FIR.
“…. the re-arrest of the petitioner cannot be justified and is found to be illegal and in violation of his fundamental rights,” the Court said.
It accordingly directed that Chaudhary be forthwith released from custody on the same terms and conditions stipulated in the Magistrate's order passed on July 23.
The Court clarified that it had not made any observations on the merits of the prosecution's case against Chaudhary.
Case Title: Manoj Chaudhary v. State NCT of Delhi