In a landmark judgment, the Bombay High Court today has set down a vital principle as to when does an arrest takes effect with respect to LoC cases. The division bench of Justices Bharati Dangre and Justice Manjusha Deshpande dealt with the issue in dealing with an habeas corpus petition of a Singapore national who was detailed in Ahmedabad airport on account of an LoC issued by Azad Nagar police station, Mumbai.
The person was a Singapore national, against whom an FIR had been filed against him in Azad Maidan Police station in India, for certain transactions between an Indian and Indonesian party in 2019. An A summary report had been filed in the said matter before the Court. The person unaware of these court proceedings flew back to India to meet his family members and landed in Ahmedabad, where he was detained first by airport authorities, and then kept overnight in the police station near the Ahmedabad airport. On the next day, Azad Maidan police landed and brought him to Mumbai in the evening of 14 August, and he was then shown as arrested at 11:08 PM. He was then produced before the concerned magistrate on August 15 at 12:30 PM.
A petition praying for a Writ of Habeas Corpus was filed by Khaitan & Co before the Bombay High Court, citing violations of Section 57 of the Criminal Procedure Code, 1973 (CrPC), Article 22 (2) of the Constitution of India as well and principles laid down by the Supreme Court in Arnesh Kumar v. State of Bihar. The petitioner also prayed for his immediate release, stating that the arrest memo furnished did not provide grounds of arrest as mandated by the Supreme Court.
The court after hearing arguments over a period of three days, has allowed the same and held that the arrest was violative of Section 57 of CrPC, observing that the petitioner was detained for almost 30 hours till his production before the concerned Magistrate.
“The production of the petitioner before the magistrate after 24 hours is thus in the teeth of Section 57 of the Code of Criminal Procedure, which clearly amounts to violation of the fundamental right of the petitioner guaranteed under clause (2) of Article 22 of the Constitution.”
The Bench in its judgment also noted that the State had failed to serve the petitioner with the grounds of arrest in writing and held the same to be in flagrant violation of the law laid down by the Supreme Court in Pankaj Bansal v. Union of India and Prabir Purkayastha v. State (NCT of Delhi) as well as the judgment of the Bombay High Court in Mahesh Panudrang Naik v. State of Maharashtra.
The Bench came to a finding in the facts of the case that custody of the Petitioner right from his interception at the airport due to the LoC amounts to his arrest for violation of the procedure under law and makes the arrest illegal, being violative of the fundamental rights.
Declaring the arrest and subsequent remand orders remanding the petitioner to police custody as illegal, the Court ordered the immediate release of the petitioner.
The petitioner was represented by Sr. Advocate Aabad Ponda and Advocates Kushal Mor, Manavendra Mishra, Akhilesh Singh, Adithi Rao, Marmik Shah and Tanmay Karmarkar i/b Khaitan & Co.
Advocate J.P Yagnik (A.P.P.) appeared for the State of Maharashtra.
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