A Momentous Verdict On Illegality Of Arrest And Bail

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.1Article 22(2) of the Constitution of India embodies a rule which is very vital and fundamental for safeguarding the liberty of a person. It states that, 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.Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS'), corresponding to Section 57 of the Code of Criminal Procedure, 1973 (for short 'the Code'), embodies the same rule. It is significant that the words “whether having jurisdiction or not” are newly incorporated in Section 58 of the BNSS. The addition of the above words in the provision makes it consonant with Article 22(2) of the Constitution of India.A momentous verdictWhat is the consequence of infringement or violation of Article 22(2) of the Constitution of India? The recent verdict of the Supreme Court, in Directorate of Enforcement v. Subhash Sharma,2 gives a clear answer to this question.In the above case, a Look Out Circular (LOC) had been issued against the accused at the instance of the Directorate of Enforcement (ED). By executing the LOC, the Bureau of Immigration detained the accused at the Airport and his physical custody was taken over by the ED from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 01.15 hours on 6th March 2022, an arrest memo was prepared by ED and the accused was produced before the Court at 3 p.m. on 6th March, 2022. The Supreme Court noticed that, the accused was not produced before the nearest Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. In such circumstances, it was held as follows:“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 been violated. …….. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Article 21 and Article 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 Article 21 and Article 22 of the Constitution. Therefore, when arrest is illegal or is vitiated, bail cannot be denied on the grounds of non - fulfilment of twin tests under clause (ii) of sub-section (1) of Section 45 of PMLA”.The above verdict of the Supreme Court can be considered as a momentous decision for many reasons. In the first place, it unhesitatingly upholds the right to personal liberty, a sacred and cherished fundamental right guaranteed under the Constitution of India. In the second place, the verdict makes it clear that, when the arrest is illegal or is vitiated, bail cannot be denied on the ground of non-fulfilment of any special conditions prescribed in a special statute. In the third place, the decision removes the lingering doubt, if any, in the minds of the courts on the question, whether illegality of arrest can be the sole ground for granting bail. In the fourth place, the judgment is short and simple. The judgment is drafted in simple language but the message given is loud and clear.The precedentsIn the case of Madhu Limaye,3 the Apex Court had held that, once it is shown that the arrest made by the police officers was illegal, it would be necessary for the State to establish that at the stage of remand the Magistrate directed detention of the accused in jail custody after applying his mind to all relevant matters.In the case of Khatri,4 the Supreme Court had occasion to remind the authorities concerned that the constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.In the celebrated decision in Arnesh Kumar,5 it has been held that, before a Magistrate authorises detention of a person under Section 167 of the Code, he has to be first satisfied...

A Momentous Verdict On Illegality Of Arrest And Bail

Justice Narayana Pisharadi

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